Before Lipez, Howard, and Thompson, Circuit Judges.
Using standard investigative techniques – including informants, controlled drug buys, and tape-recorded conversations – law enforcement agents uncovered an OxyContin-selling conspiracy centered in Maine. A morphine-like narcotic, OxyContin is an oxycodone-based product often prescribed to treat chronic pain. Putting the operation out of business, agents arrested Arthur Michael Kinsella, a Canadian-based dealer who had smuggled OxyContin into Maine. Later released on bail, Kinsella skipped a re-arraignment hearing and so became a fugitive from justice. Shipped back to Maine by Canadian authorities, Kinsella faced charges of conspiring to possess and distribute oxycodone, possessing oxycodone with intent to distribute, and willfully failing to appear in court as required. See 21 U.S.C. §§ 846 and 841(a)(1), and 18 U.S.C. § 3146(a)(1).
Acting on Kinsella’s motion, Judge (now Chief Judge) Woodcock severed the oxycodone counts from the bail-jumping count for trial purposes. After separate juries convicted Kinsella across the board, Judge Woodcock sentenced him to 97 months in prison and 36 months of supervised release. Kinsella now challenges his convictions and sentence on several fronts. For openers he argues that multiple instances of prosecutorial misconduct deprived him of his fair-trial rights. The first incident revolves around the prosecutor’s unobjected-to questioning of a cooperating witness, Christopher Hitchcock. Caught pushing OxyContin for Kinsella, Hitchcock cut a deal with the government, concluded his case on favorable terms – Judge Woodcock sentenced him to 24 months, well short of the 20-year statutory maximum – and testified against Kinsella at the drug trial. Kinsella’s lawyer aggressively confronted Hitchcock on cross-examination, using the plea agreement and light sentence to attack his credibility. During the government’s redirect, however, Hitchcock revealed that Judge Woodcock had sentenced him. Speculating that jurors hearing this must have concluded that Judge Woodcock had already found Hitchcock credible – why else would he have imposed such a “lenient” sentence? – Kinsella insists that justice demands that he get a new trial on the drug counts. He also asserts that certain unobjected-to comments by prosecutors during closing arguments warrant reversal on plain-error review. Turning to sentencing, Kinsella contends that Judge Woodcock erred in his drug-quantity calculation. After a studied review of the briefs and the record, we affirm Kinsella’s convictions and sentence.
