This is one of the best opinions I've ever read from Judge Gould. It's concise, cogent, and ruthlessly persuasive. I can't fathom a better resolution of the case.
I agree with Judge Gould that the U.S. improperly introduced the defendant's post-arrest, pre-Miranda silence in its case-in-chief. And I'm no huge fan of the harmless error doctrine, which is routinely overapplied, but I also agree with Judge Gould that the error in this case was harmless beyond a reasonable doubt. The dude was caught crossing the border with a quarter-plus pound of meth in his front left pocket. His story that these drugs were "planted" on him by the driver is laughable. (What moron, by the way, drives from Mexico into the U.S. with a quarter-pound of methamphetamine in his pocket? I mean, come on.)
I also agree with Judge Gould that the district court erroneously failed to instruct on the lesser included offense of simple possession (as an alternative to the count of possession with intent to distribute on which the defendant was convicted), and I similarly agree with Judge Gould that this error wasn't harmless. Admittedly, I'm no expert. And a quarter-pound seems like a lot to me. But Judge Gould does an outstanding job of arguing that a jury might well have found that defendant went to Mexico to stock up on meth for his own consumption, and that the quantity (which, at least according to the government's witness, was between 48-96 doses -- and I'm in no position to disagree with that assessment) wasn't so out of bounds to be clearly for sale. I'm sure some people go through 48-96 doses pretty darn fast. (Sadly, I think I know one person like that fairly well.) Since a jury might have concluded that defendant was part of that group as well, the failure to instruct on the lesser included offense wasn't harmless. Hence we vacate the conviction (and the resulting 10-year minimum) and remand for a new trial.
The opinion by Judge Gould is really impressive. My summary doesn't do it justice. Great, great job, Ron.
