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United States of America v. Juan A. Meises, A/K/A David Vazquez-Coss, A/K/A Juan A.

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Before Lipez, Leval, *fn1 and Thompson, Circuit Judges. Leslie W. O’Brien for appellant Reyes-Guerrero. Rafael F. Castro Lang for appellant Meises.

Appellants Juan Mieses*fn2 and Jose Reyes-Guerrero were arrested in a reverse sting operation after they drove to a sham drug deal, with a third co-defendant, in a vehicle containing $100,000 in cash.*fn3 A jury found both appellants guilty of a single drug conspiracy count. On appeal, the pair claim that their convictions must be vacated because of three significant errors at trial: (1) the government’s use of improper overview testimony from the lead law enforcement agent in the case, (2) the indirect admission of the third co-defendant’s out-of-court statement implicating appellants, and (3) the district court’s refusal to allow the jury to hear an audiotape recorded on the day of their arrests.*fn4 Reyes-Guerrero further asserts that he is entitled to a judgment of acquittal because the evidence was insufficient to support the jury’s verdict.

As we shall explain, the overview testimony at issue here was improper and, to its credit, the district court acknowledged the error when it considered appellants’ post-trial motions for acquittal. See United States v. Reyes-Guerrero, 638 F. Supp. 2d 177, 185-90 (D.P.R. 2009). We also conclude that the district court erred in allowing testimony revealing the co-defendant’s inculpatory statement. Those two significant errors entitle appellants to a new trial, and we therefore vacate their convictions and remand for such new proceedings.*fn5

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