United States v. Kenneth Lee Hozian

Kenneth Lee Hozian appeals his conviction for conspiracy and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 . He contends 1) that the prosecutor improperly commented on his failure to testify in violation of his Fifth Amendment rights, 2) that the trial court violated Rule 16 of the Federal Rules of Criminal Procedure in allowing testimony concerning a booking sheet that had been destroyed, and 3) that it was improper to allow the government to present testimony of a convicted codefendant when the government had sought to impeach that testimony in an earlier trial. We affirm.

On February 21, 1979, Hozian and his co-defendant, Denny Michael Gregg, met with two agents of the Drug Enforcement Administration on a sailboat moored in Oakland harbor. The meeting followed a prior meeting, arranged by an informer, and a series of telephone calls between Gregg and the agents in which the agents arranged to purchase five pounds of cocaine from Gregg and his supplier. Hozian and Gregg had brought one pound of cocaine with them to this meeting so that its quality could be tested. Accordingly to the agents, Hozian stated that the cocaine belonged to him, that it…