Criminal Law

Dist. Ct. did not err in denying defendant’s motion for compassionate release based upon his immobility issues, as well as his respiratory disease, obesity, hypertension and kidney dysfunction. Dist. Ct. assumed that defendant’s medical condition qualified as extraordinary and compelling reason to grant compassionate release, and record showed that defendant had received 25-year sentence in 2010 on racketeering and gambling charges that involved use of pipe bomb on competitor’s facility. Dist. Ct. could properly deny instant request based on section 3553(a) factors that included finding that cutting defendant’s sentence would deprecate seriousness of his offenses, undermine respect for law, ignore his extensive criminal history and pose danger to public. Ct. rejected defendant’s claim that he posed no danger to public due to his medical condition, where defendant still had ability to recruit others to carry out criminal acts as he had done in underlying convictions. Also, fact that defendant was unable to communicate with counsel during period of time after Dist. Ct. had hearing on instant request and prior to Dist. Ct. rendering its decision on matter did not require different result under plain error standard, where defendant could not establish reasonable probability that information he would have told his counsel would have changed Dist. Ct.’s ruling.

Dist. Ct. did not err in imposing 110-month term of incarceration on charge of unlawful possession of ammunition by felon, where said sentence was based, in part, on imposition of two-level enhancement under section 2K2.1(b)(1)(A) of USSG for use of three firearms in underlying charge. Record showed that two guns were tossed during attempted flight by defendant and two other individuals, and that third gun was found in car abandoned during flight by defendant and said individuals. While defendant argued that record supported finding that only two guns were used in charged offense, record supported Dist. Ct.’s finding that defendant and two others were involved in joint criminal undertaking, and that third gun was used in said undertaking, where gun found in vehicle matched shell casings found at scene of shooting. Moreover, record showed that ammunition found on defendant matched ammunition for one gun used in shooting.

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant’s motion to suppress drugs and cash seized from defendant’s hotel room, even though defendant argued that said seizure, which took place after drug-sniffing dog had alerted to presence of drugs while in hallway outside of defendant’s hotel room, violated his reasonable expectation of privacy, and that police application for section 2703(d) tracking order seeking information regarding defendant’s cell-phone lacked probable cause. Record showed that defendant lacked reasonable expectation of privacy regarding area outside his hotel room, where exterior hallway and stairway led to hotel parking lot, and where defendant lacked right to exclude members of public from passing through exterior hallway. Also, any expectation of privacy in exterior hallway was not reasonable. With respect to section 2703(d) tracking order, instant three-year error in providing defendant’s birth-date did not require that police cease attempts at executing search warrant, even though police were aware of error prior to search, where instant three-year difference in birth-dates, by itself, was too insignificant to require police to stop executing warrant. Too, other facts discovered by police supported instant warrant that was eventually issued, where, after police received defendant’s cell-phone location, police had observed woman looking like defendant’s wife drop off bag in defendant’s hotel room and then drive away in car registered to defendant, as well as dog alerting to presence of drugs in defendant’s hotel room. Also, any error in seeking tracking order under section 2703(d) was subject to good-faith exception to exclusionary rule with respect to both historical and real-time cell-site location information.

Dist. Ct. did not err in denying defendant’s challenge to his indictment that alleged three separate counts of threatening federal official under 18 USC section 115(a)(1)(B), even though defendant argued that instant indictment violated Rule 12(b)(3)(B)(ii) against generating multiplicitous indictments, where instant indictment asserted three counts alleging separate threats, and where defendant asserted that only one overriding threat had been allegedly uttered. Instant indictment was permissible, where operative prosecution unit allowed each threat to be individually indicted. Moreover, indictment conveyed three separate threats, which did not depend on additional information contained in any other count. Fact that two of three counts contained alleged threats that occurred only 27 minutes apart did not require different result. Also, record contained sufficient evidence under plain error standard to support interstate element for each count, where record showed that defendant sent such threats over Internet that involved defendant sending his posts to website in Russia, and where individuals in California had seen defendant’s original posts.

Dist. Ct. did not err in granting government’s motion for summary judgment in petitioner’s action seeking declaration that he held superior interest to certain assets that government claimed were subject to forfeiture in underlying criminal action that resulted in guilty verdict on healthcare fraud and money laundering charges involving nursing home to which petitioner held equity interest. Underlying indictment alleged that petitioner’s wife and others used instant nursing home to wrongfully bill Medicare for services rendered to purportedly homebound patients, knowing that said patients neither received nor were eligible for said services. Petitioner, though, did not accompany his claim with any financial tracing to determine whether assets that were at issue in preliminary order of forfeiture were derived from petitioner’s initial investment in nursing home. Moreover, summary judgment in favor of government was proper, where government asserted that: (1) it was able to trace resources used to purchase said assets from funds Medicare deposited into various accounts controlled by defendant in underlying criminal case; and (2) its tracing analysis did not show that any of petitioner’s initial investment in nursing home went towards purchase of subject assets.