United States v. Andasola (10th Cir. September 2021)

The Federal Docket

September 27, 2021


Jose Burciaga-Andasola was convicted of drug offenses and appealed, arguing that the district court improperly testified as a witness during his trial in violation of Rule 605 of the Federal Rules of Evidence.

The defendant had testified at trial that there had been a second video of an undercover drug transaction, one not shown to the jury, and he suggested the government had altered the video that had been shown to the jury. During a sidebar, the parties agreed there was only one video, but defense counsel asked the court to allow Andasola to testify to his belief that there was a second video. At the request of the government, the district court instructed the jury that “there is only one video that exists in this case…To the extent there was any implication that another video exists, that is not an accurate statement.”

On appeal, the Tenth Circuit agreed that this was a clear violation of Rule 605, which prohibits district court judges from testifying as witnesses. In stating there was only one video, and that the defendant’s testimony was not accurate or was false, the district court “introduced new evidence to the jury by deciding a disputed factual issue for the jury.” Since Rule 605, by its own text, does not require that a party object to preserve the issue, the Court reviewed for harmfulness.

The Court ultimately affirmed the defendant’s conviction and sentence, holding that, regardless of which standard of review applies, the district court’s error was harmless. The Court recounted the “overwhelming” evidence of the defendant’s drug distribution, and even if the district court undermined the defendant’s credibility, the “vast majority” of the government’s evidence inculpated the defendant outside of the video evidence at issue.

On appeal from the District of Colorado
Opinion by Moritz, joined by Matheson and Murphy

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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