Peneda

Reynaldo Peneda appeals his conviction for conspiracy to transport cocaine and the transportation and possession of that cocaine for sale. The jury found the total amount of cocaine exceeded 100 pounds in weight which enhanced Peneda’s sentence by 15 years. He was then sentenced to a total of 21 years in prison.

Peneda contends his motion to suppress evidence was erroneously denied after the trial court refused him a separate Franks hearing. He also argues the evidence is insufficient to support his conviction as an aider and abettor to the transportation of cocaine and to support the special allegation of the cocaine’s weight. He bases this latter argument on the expert’s opinion that 100 pounds of cocaine was actually contained within the white powder seized by the police; the expert arrived at this conclusion through a probability calculation based on the samples taken from the whole amount. Peneda objected to this evidence, asserting the prosecution failed to comply with the Kelly requirements for its admission. Finally, he complains that certain language in the instruction defining reasonable doubt was unconstitutional, a contention which we reject summarily (Victor…