Criminal Law

In prosecution on drug and firearm charges, Dist. Ct. did not err in denying defendant’s motion to suppress drugs and firearm seized during traffic stop of truck in which defendant was passenger. Record supported finding that officer had reasonable suspicion to believe that traffic violation had occurred, where officer provided credible testimony that truck had failed to come to complete stop at stop sign. Moreover, officer had reasonable suspicion to believe that defendant and two others in truck were engaging in unlawful drug activity, where: (1) defendant’s vehicle was in area of known drug activity in early morning hour; (2) truck was parked with engine running, and officer saw defendant walking a few houses away from truck from direction of nearby drug house, and (3) another officer had radioed that occupants in similar truck had been acting “shady.” Moreover, six minutes from stop to start of altercation between defendant and officer arising out of defendant’s refusal to keep his hands exposed, when gun fell out of defendant’s waistband, did not constitute unlawful extension of stop, especially where officer asked permissible travel-plan questions, and where time was used to investigate driver’s license and registry of truck.

Dist. Ct. did not err in entering civil garnishment order within defendant‘s criminal action that found that defendant and his wife each had fifty percent interest in marital home, and that fifty percent of proceeds from sale of home could be used to pay restitution in defendant’s criminal case. While wife asserted that she was entitled to 100 percent of said proceeds because she was only individual named in property’s title, Dist. Ct. could properly look beyond title, where record showed that paper title in wife’s name was unreliable, since title stemmed from series of fraudulent transactions and forged signatures. Moreover, Dist. Ct. could properly find that both defendant and his wife had equal control over house, where: (1) payment for at least one mortgage came from joint bank account, where defendant and his wife both deposited their paychecks; and (2) property was used as family home for both defendant and his wife.

Dist. Ct. did not err in denying as untimely defendant’s Rule 60(b)(1) motion to reopen his habeas proceedings that challenged his 25-year sentence on his drug and firearm’s convictions. Record showed that: (1) defendant filed his section 2255 habeas petition, which challenged his sentence, but made no reference to recent U.S. Supreme Court decision in Mathis, 579 U.S. 500; (2) during pendency of his habeas petition, defendant filed motion to amend his petition to raise Mathis issue that, according to defendant, precluded sentencing court from considering prior conviction as “controlled substance offense, for purposes of applying section 841(b) enhancement to his sentence; (3) on October 31, 2018, Dist. Ct. denied habeas petition without ruling on defendant’s motion to amend; and (4) on May 29, 2020, defendant filed instant Rule 60(b) motion. Ct. of Appeals found that Rule 60(b)(1) applied, where defendant essentially argued that Dist. Ct. made mistake in failing to act on motion to amend, but that Dist. Ct. properly denied motion to reopen, where said motion was filed outside applicable one-year limitations period for filing said motion that began with denial of habeas petition. Ct. further noted that defendant had opportunity to raise Mathis issue on direct appeal of habeas denial, but defendant failed to file any direct appeal.

Dist. Ct. did not err in denying defendant’s motion for compassionate release based on fact that U.S. v. Ruth, 966 F.3d 642, found that certain Illinois drug convictions no longer qualified as predicate convictions for federal recidivist enhancements, and that his 216-month sentence was based in part on said enhancement. While defendant argued that change in law caused by Ruth constitutes extraordinary and compelling reason to grant his compassionate release request, Ct. of Appeals found that changes in case law or statutes are not extraordinary or compelling reasons to grant requests for compassionate release. Ct. of Appeals also rejected defendant’s contention that U.S. Supreme Court decision in Concepcion, 20-1650, June 27, 2022, held that anything at all may be deemed extraordinary or compelling reason to support request for compassionate release.

Dist. Ct. erred in dismissing without conducting hearing or giving opportunity to amend claimant’s section 853(n) petition for adjudication of her property rights to property that Dist. Ct. had entered initial order of forfeiture, where government had asserted that said property was connected to criminal case to which claimant’s husband and others had pleaded guilty. Section 853(n)(3) allows Dist. Ct. to dismiss section 853(n) petition without hearing if petition asserts only conclusory legal interest in subject property, and claimant’s petition contained only conclusory allegations of ownership with respect to cash claims, where claimant failed to identify dates of transfer, and with respect to claims for house, vehicle and gifts, where claimant failed to adequately explain how state law supported her purported legal interest in said properties. However, remand was required, because Dist. Ct. should have conducted hearing on instant petition or allowed claimant opportunity to amend petition, since defects in petition were not incurable. Dist. Ct., though, did not err in allowing for interlocutory sale of different residence, where claimant had agreed to said sale and where residence was subject to deterioration and non-payment of real estate taxes.

Dist. Ct. erred in imposing 2-year term of incarceration after revoking defendant’s supervised release. Under Tapia, 564 U.S. 319, federal courts are precluded from imposing or lengthening prison terms to promote offender’s rehabilitation, and record showed through Dist. Ct.’s explanation that it was imposing instant sentence, which was 10 months above Guideline range, because of desire to rehabilitate defendant. Ct. of Appeals rejected government’s argument that Dist. Ct.’s reference to defendant’s rehabilitation was only afterthought, where Ct. of Appeals found that defendant’s rehabilitation was primary reason for length of instant sentence.

Dist. Ct. did not err in denying defendant’s request for compassionate release under 18 USC section 3582(c)(1)(A), where reason for said release was change in law under Ruth, 966 F.3d 642, that treated his 2005 conviction as no longer being qualifying predicate conviction for purposes of imposing section 851 enhancement that was applied to his 15-year sentence. Under Thacker, 4 F.4th 569, section 3582(c)(1)(A) could not be used as avenue for sentence reduction, where defendant could have asserted same claim in either direct appeal or section 2255 petition. As such, change in law did not qualify as “extraordinary and compelling” reason to support any claim for relief under section 3582(c)(1)(A). Ct. further noted that defendant had entered into guilty plea that had waived his right to directly appeal or collaterally attack his conviction or sentence.

Record contained sufficient evidence to support defendant’s conviction on charge of conspiracy to violate securities law under 18 USC section 371, where record showed that: (1) defendant used insider tip to purchase out-of-the-money call options that resulted in obtaining more than $550,000 in profits; and (2) defendant used some of his profits to pay individual who had given him tip. Record showed that defendant and person who gave him tip conspired to misuse tip and acted in concert for their private benefit in violation of securities rules that prohibited insider trading. Ct. rejected defendant’s contention that government failed to prove existence of conspiracy.

Record supported jury’s guilty verdict on wire fraud charges, where evidence showed that defendants placed manual “spoofing” orders for precious metals that defendants intended to withdraw before being filled. Jury could properly have found that defendants engaged in scheme to defraud by means of implied misrepresentation that defendants wanted to fill said spoofing orders, in effort to manipulate market for precious metals in their favor by placing said orders. Ct rejected defendants’ claim that wire fraud statute required proof of affirmative misrepresentation as opposed to implied misrepresentation, and further held that defendants’ implied misrepresentation was material misrepresentation. Also, Dist. Ct. did not abuse its discretion in admitting electronic communication in which one defendant used term “spoofing,” even though defendants argued that “spoofing” that was at issue in communication was different in kind than spoofing at issue in charged offenses, where Dist. Ct. could properly find that defendant’s use of “spoofing” term in communication demonstrated defendant’s consciousness of guilt, and that defendant knew that different variety of “spoofing” was illegal. Too, Dist. Ct. properly denied defendant’s motion to dismiss indictment on speedy trial grounds, where (1) record showed that Dist. Ct. took 189 days to resolve defendants’ motion to dismiss, but had failed to make required ends-of-justice finding at time it continued matter to resolve motion to dismiss; (2) Dist. Ct. could properly find that ends-of-justice considerations outweighed defendant’s interest in speedy trial and justified continuance that resulted from pendency of said motion to dismiss; and (3) Dist. Ct. could make delayed ends-of-justice finding after delay had occurred, but by time it had ruled on defendants’ motion to dismiss.