Criminal Law

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his sexual assault of child conviction arising out of medical exam of daughter of defendant’s girlfriend, where: (1) medical personnel observed genital and anal lesions that were ultimately diagnosed as herpes; (2) defendant also had diagnosis of herpes; (3) defendant asserted that he was innocent of said charge; and (4) defendant claimed that government had failed to establish requisite three separate acts of sexual intercourse. Victim testified as to one act of sexual intercourse committed by defendant that clearly occurred during relevant time period, and while victim testified to two other acts of sexual intercourse committed by defendant that, according to victim, did not occur during relevant time period, jury was free to credit victim’s testimony about what acts occurred and to discredit victim’s account of where or when they occurred. Ct. also rejected defendant’s claim that his trial counsel was ineffective for failing to object to admission of nurse’s notes in victim’s medical records that included victim‘s statement that “someone did this to me,” since contents of said notes about examination of victim’s genital region did not violate Confrontation Clause because notes were not testimonial in nature, where they were generated for treatment purposes and not to further criminal investigation.

In prosecution on charge of unlawful possession of gun by felon, arising out of seizure of gun that three officers observed defendant place in his waistband during violent civil unrest following death of George Floyd, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of said gun. While plaintiff argued that officer’s use of force upon their encounter with defendant amounted to arrest without probable cause, and that officers’ testimonies during hearing on motion to suppress varied as to timing and number of defendant’s admissions of being felon during encounter, Ct. of Appeals held that officers’ initial use of force in form of approaching defendant with drawn guns did not automatically transform Terry stop into arrest, where use of force occurred during violent civil arrest that included prior attacks on police and others in mob crowd. Moreover, instant stop was reasonable, where officers reasonably suspected defendant was engaged or about to engage in criminal activity, especially where officers observed defendant drinking alcoholic beverage and placing gun in his waistband shortly before instant encounter, and where defendant’s behavior departed from actions of concealed-carry permit holders. Also, magistrate judge could credit officers’ testimonies that defendant confessed to police his felon status both before and after his arrest.

Ct. of Appeals vacated defendant’s guilty plea as to charge of conspiracy to distribute heroin, where record showed during plea proceeding that defendant did not understand how conspiracy offense differed from just buying and selling drugs. Defendant testified that he purchased two ounces of heroin on weekly basis from same supplier during prior year, and record failed to contain any proof of joint criminal purpose beyond mere buyer/seller relationship. Fact that defendant made regular large-quantity purchases of heroin, by itself, was insufficient to establish existence of conspiracy.. Moreover, Dist. Ct. did not ensure that defendant had real notice of true nature of conspiracy charge.

Dist. Ct. did not err in imposing 24-month term of incarceration after revoking defendant’s second term of supervised release, even though defendant argued that said sentence was procedurally and substantively unreasonable. Record showed that defendant’s first term of supervised release was revoked after defendant had resisted peace officer, had two charges of reckless driving, had one instance of driving under influence of alcohol, one incident of possession of marijuana, retail theft and use of alcohol. Second term of supervised release was revoked after defendant admitted to testing positive to fentanyl, alcohol, methamphetamine and marijuana, had overdosed on drugs on two occasions and was present when another individual had overdosed, left jurisdiction without permission and committed certain traffic offenses. Review of sentences on violations of supervised release is highly deferential, and Dist. Ct. could properly infer that defendant posed danger to public because of risk that he would again combine driving with consumption of drugs and/or alcohol, as well as overdosing. Moreover, Dist. Ct. was not required to give compelling reason why instant sentence was 10 months beyond non-binding policy statement, and Dist. Ct. otherwise justified sentence based on defendant’s violations of terms of his supervised release, his criminal history and relevant section 3553(a) factors.

Dist. Ct. erred in denying portion of defendant’s habeas petition that challenged his below-Guidelines, 720-month term of incarceration on 19 counts of sexually exploiting child and one count of distributing child pornography, where Dist. Ct. gave implicit warning at sentencing hearing that defendant might receive longer sentence if he appealed his sentence and obtained remand for new sentencing hearing. Ct. of Appeals held that any kind of hint or warning that discouraged defendants from appealing sentence is not permissible and may well warrant resentencing, and Ct. directed that different judge be assigned to conduct new sentencing hearing. Dist. Ct. did not err in denying portion of habeas petition that requested that defendant be given new trial based on claim of ineffectiveness of his trial counsel for failing to call certain witnesses or on claim of alleged bias of Dist. Ct., where Dist. Ct. exchanged emails with paralegal at U.S. Attorney’s Office about scheduling defendant’s sentencing hearing. Defendant failed to establish any prejudice arising out of his counsel’s failure to call certain witnesses where testimony from victim, as well as certain electronic evidence that pointed to defendant as culprit, overwhelmingly established defendant’s guilt on charged offenses. Moreover, Dist. Ct.’s comments about scheduling sentencing hearing did not amount to due process violation.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his felony rape conviction on ground that his trial counsel was ineffective for failing to object to report that summarized DNA analysis of cigarette butts found at scene of alleged rape, where report identified defendant’s DNA as matching “sperm fraction” collected in different case (that was identified only by case number) to which defendant had been charged. State Appellate Court, in rejecting ineffective assistance of counsel claim, found that reference in report was too vague to support any forbidden propensity inference, and Ct. of Appeals held that State Appellate Court’s decision that defendant had failed to establish prejudice prong set forth in Strickland was not unreasonable. Ct. of Appeals further observed that: (1) record contained corroborating physical evidence to support testimony of rape victim that defendant was culprit; and (2) trial court gave appropriate instructions to jury to base verdict only on evidence presented at trial.