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videos. This suggests that, even if Jolly does not know much about computers, he was likely still capable of using
the Frostwire software to download the files. In addition, Jolly had no explanation whatsoever for where he had
been on the dates in question. Smith, meanwhile, offered an alibi via the testimony of his girlfriend and his
parents. These three witnesses testified that Smith had been at his parents home on dates in question, rendering
it impossible for him to have downloaded the files. They provided various documents in support of this alibi.
The fact that Smith, without even testifying, offered an alibi while Jolly, who did testify, offered none, certainly
weakens the case against Smith.

Yet we must remain mindful that it is the sole province of the jury to assess the credibility of the testimony
given at trial, and we must consider all evidence in the light most favorable to the guilty verdict rendered. With
that in mind, it is not unreasonable for the jury to credit Jollys testimony over the testimony of Penix and the
Smiths.

The district court, however, acquitted Smith on the basis that it is just as likely that Joshua Jolly
downloaded the child pornography onto the computer as Smith did. As a purely theoretical statement, this may
be true. But the question is not whether, in terms of metaphysical probability, it is equally likely that Jolly
downloaded the files. The question is whether this evidence, taken in the light most favorable to the verdict,
offers nearly equal circumstantial support for competing explanations.

U.S. v. Smith, No. 12-60988, Fifth Circuit Court of Appeals, Jan. 13, 2014.

EVIDENCE OF DRUG CONSPIRACY USE OF DRUG SLANG

A number of Defendants were charged with conspiracy to distribute crack cocaine as a result of an
investigation begun by DEA in 2008. The investigation relied heavily on approximately 10,000 wiretapped
telephone calls, and recordings of many of these calls provided much of the evidence at trial. At trial, the Court
admitted testimony by a DEA agent of his interpretation of the drug slang used in many of the recorded
conversations by the defendants. He testified that the meanings he ascribed to those words, generally an amount
or type of drug, were based on the knowledge he gained in the course of the investigation as well as his career
experience. Another DEA supervisor testified that his understanding of the meanings of various code words that
he claimed were commonly used in the drug distribution business.

At the close of the Governments case-in-chief, each of the defendants moved for a judgment of acquittal
under Federal Rule of Criminal Procedure 29, and all renewed the motion after resting their case. The jury found
all eight defendants guilty of Count One of the Superceding Indictment, the conspiracy charge, on November 15,
2010.

On appeal, the Defendants objected to the admission of lay and expert testimony as to the meaning of the
drug slang in the conversations. At trial, the DEA investigator, Lyons, was not permitted to testify as an expert
witness for procedural reasons (lack of notice of an expert witness), but was permitted to testify as a lay witness
under Fed. R. Evid. 701, Lyons could testify about his understanding of the meaning of coded conversations if
his testimony was rationally based on Lyons own perception here, his reading of the wiretap transcripts and
involvement in this particular investigation and not on specialized knowledge from his broader experience.

In relying upon prior rulings, the Fifth Circuit stated: A witness who provides only lay testimony may
give limited opinions that are based on the witness perception and that are helpful in understanding the testimony
or in determining a fact in issue, but the witness may not opine based on scientific, technical, or other specialized
knowledge. Although the witnesses defined certain legal terms in the course of their testimony, they provided
factual information about the circumstances of the case, their observations, and the conclusions they reached.
To the extent that some of the witnesses testimony may have implicated specialized knowledge by defining
certain accounting terms, this Court concluded, the error in allowing the testimony, if any, was harmless

A Peace Officer’s Guide to Texas Law 82 2015 Edition