Background
Damian Costello was charged in the Northern District of West Virginia with conspiracy to possess with intent to distribute and to distribute fentanyl, methamphetamine, cocaine, and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Following a jury trial before District Judge Gina M. Groh, Costello was convicted on all charges and sentenced accordingly.
On appeal to the Fourth Circuit, Costello challenged his conviction on two grounds: he argued that an isolated remark by the prosecutor constituted improper vouching, and he contested the application of two separate sentencing enhancements imposed by the district court. Notably, Costello had not raised these objections during trial, necessitating appellate review under the more stringent plain error standard.
The Court’s Holding
The Fourth Circuit panel, composed of Judges Niemeyer and Wynn and Senior Judge Traxler, reviewed the record under the plain error standard of review. This demanding standard requires the appellant to demonstrate not merely error, but error that is “obvious” and affects substantial rights.
After carefully examining the record, the court found no reversible error. The panel determined that the prosecutor’s remark did not constitute improper vouching rising to the level of reversible error, and that the district court properly applied the sentencing enhancements. Accordingly, the Fourth Circuit affirmed both Costello’s conviction and his sentence.
Key Takeaways
- Appellants who fail to object at trial face a high bar under plain error review, which requires demonstration of obvious error affecting substantial rights.
- An isolated prosecutorial remark, standing alone, may not constitute reversible error absent proper preservation through trial objection.
- Sentencing enhancements applied by the district court will be upheld on appellate review when no reversible error is apparent in the record.
- Fourth Circuit unpublished opinions, while not binding precedent, reflect the court’s disposition of routine appellate issues.
Why It Matters
This decision underscores the importance of contemporaneous objections at trial. By failing to object to the prosecutor’s remarks and sentencing enhancements when they occurred, Costello waived his opportunity for more favorable appellate review. Practitioners should note that waiver of objections at trial shifts the appellate burden substantially—plain error review requires showing that error was obvious and prejudicial, a significantly higher standard than review for abuse of discretion.
For prosecutors, the decision suggests that isolated remarks during trial, when not objected to, are unlikely to result in reversal on appeal. For defendants and defense counsel, the takeaway is clear: timely objections and contemporaneous requests for jury instructions or other trial rulings remain essential to preserving claims for appellate review.