Evidence Mid-term Examination
Lincoln Law School of San Jose
December 2020
Supplemental Instructions: This examination consists of a fact pattern and a
number of questions. For each question, you are to discuss distinctions, if any,
between the Federal Rules of Evidence and the California Evidence Code
rules. Please note that some questions request that your limit or excluded issues
in your responses. This is a closed book examination.
Background and Facts:
On February 1, 2020, Jack Strong, a federal agent with the DEA in San Jose, called
Assistant U.S. Attorney Roger Young, asking for a meeting to request the opening
of a grand jury investigation of Alex and others suspected of running a drug
operation in Northern California. Agent Strong indicated he needed Grand Jury
subpoenas to get cellphone call records, bank records and internet provider email
records to see who may be involved with Alex in the drug operation. They agreed
to meet the following day.
On February 2, Agent Strong and AUSA Young met at the U.S. Attorney’s office.
Agent Strong told AUSA Young that an informant (George) had advised him that
Alex had done prison time a few years ago for selling drugs. Strong said that
George had an affair with Alex’s wife while Alex had been in jail for a felony drug
conviction, and that he (George) had a prior felony distribution drug conviction 8
years ago. Strong said that George lied once to officers on a small matter in a
prior state investigation, but otherwise George had since been a reliable
cooperator. Specifically, Strong added that George had provided reliable
information in three recent drug-related investigations. Strong further added that
George had heard from a friend that Alex was out of prison and was at it again,
selling drugs.
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AUSA Young responded, “George looks to be a character, but this could be the
makings of a great case. This will be my first federal drug case. I’ve been wanting
to do a federal drug case and put people in jail for some serious time. This should
help me with a future political career.” Young further said, “Ok, we’ll open a
grand jury investigation, and I’ll authorize the subpoenas for the records you
requested. I think we can use Alex’s prior conviction to show why we decided to
pursue an investigation – not for the truth of the matter.”
Agent Strong met with George on February 3. He told George, “We’re on board
to go get Alex. We’ll pay you the regular price of $1,000 now and if you testify
and we get convictions, we’ll add another $1,000. Strong stated, “Set up a
meeting with Alex and his crew.”
On March 1, Agent Strong and George met again. George said that he had met
with Alex and added the following details: Alex said, “The price for shoes is 20k.
Bring your money man and meet us in 2 days at Bobby’s.” Alex then handed
George a post-it note with a time, address and other information. The note
indicated, “7pm -- 384 S. 2nd, SJ – 20 per shoes.” Agent Strong took the note and
responded, “We’re in. I’ll get the marked money.”
Two days later, on March 3, Strong and George met Alex and others at the stated
address. Strong was wearing a “wire”. Alex introduced his friends to Strong and
George, stating, “This is Bobby, he gets our stuff. Over there is Colt.” (At that
point Colt got up to go to the kitchen and never said a word.) After Colt was gone
from the room, Alex said that, “Colt played semi-pro football; he’s our enforcer.”
George saw Alex’s wife in the house, but they avoided eye contact for fear that
Alex would suspect something. After further discussion, Alex said, “Ok, Deal. 5
kilos of white for $100,000.” Bobby added, “Give me a week to get the ‘white.’
We’ll meet then.”
Back at the DEA office, Agent Strong and other agents confirmed the clarity of the
recording of the March 3 conversation. The DEA supervisor authorized the funds
and a task force team planned surveillance and expected arrests.
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On March 10, Alex, Bobby and Colt met with Agent Strong and George in the
parking lot across the street from Bobby’s home. Strong and George parked their
car next to Alex’s car. Alex asked, “you got the money?” Strong nodded (yes) and
asked you got the “white”? Alex nodded, meaning yes. Once out of their cars,
Alex allowed Strong a taste of the cocaine and Strong said, “Good.” Strong
handed Alex a briefcase. Alex opened it and saw $100 bills. Alex said, “In these
COVID days, best way to make a living.” Strong then gave the arrest signal. Alex,
Bobby and Colt were arrested, advised of their Miranda rights and taken to the
DEA office.
At the DEA office, Alex, Bobby and Colt were processed. While being
fingerprinted, Colt said, “What’s going on! I don’t know what the heck is going
on! I thought we were meeting with you so we could complete a team to play
football at the high school against some crosstown guys.”
While he was being fingerprinted, Bobby had a conversation with Agent Strong.
Bobby said, “Yeah, you got me and Alex, but Colt had nothing to do with this.”
Bobby added, “Look give me a deal and I’ll give you my suppliers.” Strong said,
“Keep going, I’m listening. I’ll tell the AUSA what you tell me.” Bobby then
stated, “You don’t know of the other guys. My suppliers are Dave, Eddie and
Frank, who are roommates in the house next door. They supplied the 5 kilos. Alex
was in charge of this operation.”
Based on Bobby’s information, Agent Strong and the task force team went out to
arrest Dave, Eddie and Frank.
On April 1, AUSA Young presented the case to the grand jury. (A grand jury is a
body, composed of citizens, which hears evidence presented by government
lawyers to determine whether an individual should be held over for trial on an
indictment charging criminal offenses. The burden of proof to obtain an
indictment is probable cause, not beyond a reasonable doubt as in an actual
criminal jury trial. Hearsay can be presented in the grand jury as a basis for
obtaining an indictment. The defense is not allowed in the grand jury; thus,
cannot present evidence or cross exam any witness testifying in the grand jury.)
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In the grand jury, Agent Strong testified under oath and provided details of the
investigation as recounted above. George also testified under oath as to his
activities and conversations, as indicated above.
After deliberations on April 1, the grand jury returned an indictment charging the
following:
On and before March 2020 and through March 10, 2020, Alex, Bobby, Colt,
Dave, Eddie and Frank, defendants herein, engaged in a conspiracy to
distribute cocaine, in violation of 21 U.S.C Section 846, and aiding and
abetting in the distribution of cocaine, in violation of 21 U.S.C. 841.
[For ease, you may designate the defendants as A, B, C, D, E and F.]
On April 2, the day before arraignment, the law firm of Chan, Gaucin, Lopez,
Madigan, Ohlson and Sanchez, a premier women’s law firm in California, met with
all defendants. The lawyers asked if they could represent the defendants,
assigning one lawyer to each of the defendants. The women added that we’ve
seen AUSA Young when he was in the local DA’s office and he’s not that good.
The only reason he got a job with the U.S. Attorney’s Office was because of his
father’s political connections. Each of the defendants waived the representation
conflict (the State Bar previously advising that representation would be allowed if
each defendant waived the conflict in writing).
At an arraignment hearing on April 3, all defendants pled not guilty to all charges.
The arraignment judge scheduled a jury trial for December 1, 2020.
In the months before trial, Agent Strong had been seeking to communicate with
George to meet with AUSA Young for trial preparation. But Agent Strong was not
able to locate him. On November 27, three days before trial was to begin, Agent
Strong received a voicemail from George. In the message, George said that Alex’s
wife had divorced Alex, that they were in love, that they were getting married in
Las Vegas and they would be back in a few days. Agent Strong and AUSA Young
were furious to learn of this news. Nonetheless, they proceeded to trial believing
that they could still get all their evidence admitted in trial.
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Questions:
[In all questions below, assume timely objections were made.]
1. As the government’s first witness, AUSA Young called Agent Jack Strong.
The AUSA begin direct examination by asking, “You’re an agent with the
DEA, having been with the agency for a year, and you’re the main
investigator in this case, isn’t that true?
Counsel for defendants objected. How should the court rule? Discuss. [Do
not discuss/argue relevance or foundation.]
2. AUSA Young asked whether Strong received assistance from others in this
investigation? Agent Strong responded that he learned from George, an
informant, that Alex had been in prison for selling drugs and was at it again,
selling drugs.
Counsel for defendants objected. How should the court rule? Discuss. [Do
not argue hearsay.]
3. Agent Strong testified that on March 1, George met with Alex. After the
meeting, George returned to the DEA office with a note indicating a date to
meet with Alex and others. The AUSA then provided Strong with the note,
which Strong identified and said, “Yes, that’s the note, indicating time and
location of a meeting.” The AUSA then sought to admit the note into
evidence.
Counsel for defendants objected. How should the court rule? Discuss.
[Limit your discussion to the best 2 issues wherein the defense may exclude
the evidence.]
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4. Agent Strong testified about his March 3 meeting (as reflected above) with
Alex, Bobby and Colt at the home located at 384 S. 2nd Street in San Jose.
Counsel for defendants objected. How should the court rule? Discuss. [Do
not argue relevance.]
5. Agent Strong testified that he had obtained copies of Alex and Bobby’s cell
phone records for 10 months prior to the defendants’ arrest from XYZ
cellphone provider. He testified that XYZ had provided a certification that
the records were “true and correct.” Strong further testified that the
records showed calls to/from Alex and Bobby to all named defendants.
Based on the certification, AUSA Young then asked the court to admit the
records into evidence.
Counsel for defendants objected. How should the court rule? Discuss. [Do
not argue relevance.]
6. Agent Strong testified about the March 10 meeting but only as to the
meeting in the parking lot, as the prosecutor had instructed to so limit his
testimony to the parking lot encounter with Alex, Bobby and Colt. (Agent
Strong limited his testimony as instructed.)
Only counsel for defendants D, E and F objected. How should the court rule
on D, E, and F’s objection? Discuss. [Limit your discussion to the best 2 or
3 issues/arguments which these defendants may advance.]
7. Then following the prosecutor’s further instruction, Agent Strong testified
about Bobby’s statements at the DEA office on March 10.
Counsel for defendants objected. How should the court rule? Discuss. [Do
not discuss relevance or foundations.]
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8. George, the informant, was still nowhere to be found. As AUSA Young and
Agent Strong did not know if George had return to San Jose. Nonetheless,
the prosecutor announced the Grand Jury reporter/stenographer as the
government’s next witness. At a side bar, out of the presence of the jury,
AUSA Young proffered to the court that the reporter’s testimony would
provide the foundation for George’s under oath grand jury testimony and
that it qualified as former testimony under the hearsay rules.
Counsel for defendants objected. How should the court rule on this
singular issue? Discuss.
9. A week later while the government was still presenting its case, George
contacted Agent Strong to say he was back in town. Agent Strong and the
AUSA met with George that evening to prepare him for his testimony the
next morning. In the morning, on direct examination, George testified as
indicated in the fact section above. On cross examination of George,
defense counsel sought to ask George about: (1) payments received for
assisting law enforcement on investigations; (2) lie to investigators in a
prior case; and (3) his prior felony drug conviction.
The prosecutor objected. How should the court rule on these 3 issues; that
is, whether these are proper avenues for cross examination and why?
Discuss.
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