Drug dealers often use nicknames. Nicknames are used so often that
dealers often do not know the actual names of their many regular recognizable
Jay Quart’s nickname was “Mark,” according to the government. Jay
Quart was one out of 23 defendants listed on a federal drug conspiracy indictment.
All other defendants entered into plea agreements whereby they pled guilty.
That left Jay Quart (and me, his defense attorney) alone at the defense table
The government’s star witness for trial was Andy Pain, the head of the indictment
as the main dealer who agreed to testify that he sold drugs to the other defendants.
While testifying for the government, and during unimportant preliminary
questions about the overall conspiracy, Andy Pain mentioned the name of a
“co-conspirator” named “Ovis March,” and when Andy said “Ovis March,” Andy
gestured slightly with his head toward Jay Quart in a way that suggested
that Andy Pain mistook Jay Quart for Ovis March. It seemed that Andy
Pain believed that the defendant Jay Quart was Ovis March.
The prosecutor also recognized Andy Pain’s problematic gesture and the dilemma
it presented. Thereafter, all remaining questions from the
prosecutor to Andy Pain were carefully worded to avoid causing Andy Pain to
repeat or worsen the apparent confusion.
The prosecution had wiretap recordings of Andy Pain talking on the phone
with a drug buyer who used the name “Mark” on the phone (the nickname that
the government believed belonged to Jay Quart). With careful questioning,
the prosecutor was able to elicit from Andy Pain that “Mark” was “the person
in court wearing the white shirt” (the defendant Jay Quart). The prosecutor
then asked that the record reflect that the witness had identified the defendant,
and the judge agreed. At that point the government believed that it
had established (through Andy Pain’s clothing description) that “the defendant”
was the person who had committed the crimes discussed in the audio recordings.
The prosecutor had tip-toed around the problem without using the names “Jay
Quart” or “Ovis March” while questioning Andy Pain.
Then, it was time for cross-examination of Andy Pain.
I sat briefly thinking to myself that there must be one remarkable cross-examination
question that I could ask Andy Pain and end the case entirely, if I could
just think of that question. My epiphany came and I walked to the lectern
and released my revelation upon the courtroom.
What do you think I asked Andy Pain?
What would you have asked Andy Pain if you were the defense attorney?
I only asked one question, and when Andy Pain gave the answer that I suspected
he would give, I then announced that I had no further questions and I sat
A few moments later, the government made a motion to dismiss the indictment.
WHEN YOU WANT TO SEE THE ANSWER
Here is what happened: I stood at the lectern and with a sweeping gesture
I pointed at my client the defendant (Jay Quart) and I said to Andy Pain “That
is Ovis March, correct?” Andy Pain said “Yes.”