United States v. Harvey Sewell

MEMORANDUM

Harvey Sewell appeals his jury conviction of one count of conspiracy to distribute and possess with intent to distribute at least 50 grams of crack cocaine in violation of 21 U.S.C. §§ 841 (a)(1) and 846, and five counts of distribution of at least 5 grams of crack cocaine, in violation of 21 U.S.C. § 841 (a)(1). We affirm. Because the parties are familiar with the facts and procedural history, we will not recount them here.

Sewell contends that the prosecutor’s cross-examination of his investigator constituted reversible prosecutorial misconduct. Under controlling circuit law, a prosecutor commits misconduct when he or she attempts to create an impression on the jury by innuendoes in questions when no supporting evidence exists. See, e.g., United States v. Kojayan, 8 F.3d 1315, 1324 (9th Cir.1993); United States v. Blueford, 312 F.3d 962 (9th Cir.2002).

In this case, because defense counsel only objected as to the questions regarding the investigator’s failure to contact Phillip’s state attorney, we review all other issues for plain error. Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 730-36 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). Under the plain…