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Fat Cat Loses Insufficient Evidence Appeal

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By Robyn Hagan Cain on December 02, 2011 3:05 PM

Robert Sills - who we'll call by his drug-runner street name, "Fat Cat" - appealed his conviction for conspiracy to distribute five kilograms of more of cocaine based on insufficient evidence and prosecutorial misconduct.

Here's why Sixth Circuit Court of Appeals ruled against him.

Fat Cat was charged with being a member of the "Black Mafia Family," a nationwide drug conspiracy headquartered in Detroit. Four co-defendants turned against Fat Cat, and testified that they had driven vehicles with secret compartments filled with cocaine to St. Louis on numerous occasions. Fat Cat would take the cars, swap the coke for cash, and return the vehicles.

To support these claims, the government introduced a ledger seized from one of the drug houses that showed Fat Cat's name next to numbers indicating drug quantities and money. The government also introduced recordings of telephone calls between the conspirators mentioning Fat Cat.

Fat Cat claims that there was insufficient evidence to link him with the conspiracy because the ledgers only showed that he had purchased drugs. Sadly for Fat Cat, case law in the Sixth Circuit Court of Appeals holds that conspiracy can be inferred from repeated purchases of large quantities of drugs, so the court rejected his insufficient evidence claim.

Fat Cat also argued that the prosecutor made an improper comment regarding his decision not to testify.

In response to defense counsel's closing argument criticism that the person who wrote the ledger did not testify, the prosecutor stated during his closing, "And just like Mr. Sills exercised his right to remain silent - and you are by no means to judge him on that or read anything to that, you just look at the evidence that has been presented by the government and hold nothing against him for that - others are entitled to that same thing."

While the prosecutor commented on Fat Cat's choice not to testify, the Sixth Circuit Court of Appeals ruled that he had not committed prosecutorial misconduct because it was not a flagrant violation. Furthermore, the prosecutor's statement closely mirrored the jury instruction, so the comment - if improper at all - was merely harmless error.

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