On November, 4, 2015, the First Circuit Court of Appeals in Boston issued a published decision in an appeal handled by Ted Lothstein, United States v. Sean Brown, No. 14-1110 (1st Cir. Nov. 4, 2015).
In U.S. v. Sean Brown, the government brought indictments accusing Brown of sale of crack cocaine to a confidential informant. Prior to trial, the trial court (the United States District Court - NH) granted a motion to exclude evidence that a Nashua detective claimed to have found crack cocaine in Brown's hat at the time of arrest.
During trial, Mr. Brown represented himself. He did not object when the government admitted a video-recording of an interrogation in which he discussed several different topics - including the crack cocaine found in his hat.
On appeal, the government conceded that it should not have introduced a video-recording that included subject matter that had been excluded by the trial court. The government took the position that the error was inadvertent, and "harmless," meaning that it was "highly probable that the evidence did not influence the verdict."
Interestingly, the confidential informant did not take the stand as a witness in Brown's trial, and none of the law enforcement witnesses claimed to have actually seen Brown provide drugs to the confidential informant. Nevertheless, the First Circuit found harmless error, because of the "powerful" evidence of surveillance recordings played for the jury in which the parties can be heard talking about the drug sales.
This case is a reminder that the federal and state governments, having the benefit of seemingly infinite resources to investigate and prosecute crime, often can secure criminal convictions through the use of sophisticated electronic surveillance technology, even when the government lacks its most important witness - the confidential informant. The case is also a reminder, unfortunately, that even when, as in this case, everyone agrees that a serious error occurred during trial, courts often affirm convictions based on the "harmless error" doctrine.
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