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United States of America v. Patrick Gomes, A/K/A Pistol

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Before Boudin, Circuit Judge, Souter, *fn1 Associate Justice, and Selya, Circuit Judge.

Patrick Gomes was convicted in October 2008 on one count of conspiring to distribute cocaine base, 21 U.S.C. _ 846 (2006), and two counts of distribution of cocaine base within a thousand feet of a school and/or aiding and abetting such distribution, 18 U.S.C. _ 2 (2006); 21 U.S.C. __ 841(a)(1), 860. On this appeal, Gomes claims that the prosecutor engaged in witness vouching on cross-examination and in closing. Some understanding of the trial evidence is necessary background.

The government’s case was that Gomes had conspired with Alex Curet to distribute crack cocaine and had participated with Curet in two drug sales–one on September 25, 2007, and the other on October 3, 2007–in which Curet sold a cooperating witness (“CW”) crack cocaine. In both sales, recordings offered at trial disclosed Curet handing drugs to the CW and receiving money in return. The government alleged that Gomes acted as both driver and lookout.

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