United States v. Filemon Bernal-Obeso

Filemon Bernal-Obeso appeals his conviction by a jury of conspiracy to possess a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and possession of a controlled substance with intent to distribute and aiding and abetting, in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 . His primary complaint on appeal is in two parts. First, he alleges that during the discovery phase of his case he was prevented from pursuing information suggesting that a key informant-witness had lied about his criminal record to the Drug Enforcement Administration. Second, he contends he was denied by the trial court the opportunity to confront that informant-witness on cross examination with the same information. The government asks us, only for the purpose of deciding this appeal, to assume error in denying the defendant access to and use at trial of this information, but to affirm nevertheless on the ground that the supposed error was harmless beyond a reasonable doubt. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 (1988). We vacate the defendant’s conviction and remand for a hearing on the nature and admissibility of the disputed evidence. This panel…