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United States v. Kopecky

United States Court of Appeals, Eighth Circuit

May 24, 2018

United States of America Plaintiff- Appellee
v.
Scott Allen Kopecky Defendant-Appellant

          Submitted: March 15, 2018

          Appeal from United States District Court for the District of North Dakota - Fargo

          Before GRUENDER, MURPHY, and KELLY, Circuit Judges. [1]

          GRUENDER, CIRCUIT JUDGE.

         Scott Kopecky was indicted on one count of conspiracy to possess with intent to distribute and to distribute a controlled substance. See 21 U.S.C. § 841(a)(1); id. § 846. A jury found Kopecky guilty of the offense. Kopecky now appeals the district court's[2] denial of his motion for mistrial, arguing that prosecutorial misconduct deprived him of a fair trial. Because the district court did not abuse its discretion in denying this motion, we affirm Kopecky's conviction.

         I.

         Kopecky was charged as part of a conspiracy to distribute methamphetamine. The conspiracy involved Jesus Radillo, Molly McGuire, and Erik Benson, among others. At trial, Radillo, McGuire, and Benson testified as to the details and circumstances surrounding the conspiracy, and the Government presented financial and telephone records that corroborated various aspects of their testimony. This evidence established, among other things, that Radillo supplied Kopecky with an estimated thirty to forty pounds of methamphetamine over the course of several months. Kopecky in turn began supplying others with methamphetamine, including McGuire, who served as one of his distributors. On one occasion in early 2014, Kopecky and his girlfriend, Toniah Lorge, met McGuire and Radillo in Devils Lake, North Dakota. Kopecky bought two pounds of methamphetamine from Radillo and then offered to sell an ounce or two to McGuire.

         A few hours after the meeting at Devils Lake, Deputy John Grabanski conducted a traffic stop of a van in Grand Forks, North Dakota. Lorge was driving the vehicle, and Kopecky was in the passenger seat. Deputy Grabanski testified that he placed Lorge in the back of his patrol car after determining that she had a suspended license. He then asked Kopecky for identification. Kopecky initially provided a false name and no identification, but he eventually revealed his true identity. Because there was an active warrant for his arrest, Kopecky was placed in the back of the patrol car as well. Deputy Grabanski then asked for consent to search the van, which was denied. After a drug-sniffing dog arrived on scene, but before the sniff, Kopecky admitted that there was marijuana in the vehicle. Once the marijuana was removed, the dog was deployed and indicated near the back of the van. Inside, officers found methamphetamine, a scale, multiple sizes of Ziploc bags, and at least seven cell phones.

         At one point during direct examination, while the prosecutor was questioning Deputy Grabanski about what happened after he placed Lorge and Kopecky in the back of his squad car, the following exchange occurred:

Q: What happened?
A: Okay. I had them both in the back of my vehicle. I asked for
consent to search the vehicle at that point.
Q. Did you get ...

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