Criminal Law

Dist. Ct. erred in imposing second term of supervised release in addition to term of incarceration upon revoking defendants’ original term of supervised release, where Dist. Ct. held mistaken belief that second term of supervised release was mandated upon revocation of first term of supervised release. Under 18 USC section 3583(h), Dist. Ct. “may” impose second term of supervised release upon revoking first term of supervised release, but is not mandated to do so. As such, defendants were entitled to remand for reconsideration of their sentences, where section 3583(h) gives Dist. Ct. discretion not to impose second term of supervised release.

In prosecution on charge of possession of child pornography, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of his cell phone during encounter with his probation officer. Record showed that: (1) defendant was on supervised release at time of seizure; (2) defendant had agreed as term of his supervised release to installation of computer monitoring software and to not circumvent said software; (3) prior to instant seizure, defendant had history of violating terms of his supervised release that included defendant viewing sexually stimulating videos of minors on his cell phone; (4) probation officer visited defendant’s home and noted existence of cell phone that had not been monitored; (5) defendant, in attempting to hide said cell phone from probation officer’s view, told probation office that said cell phone no longer worked and that he was using it to charge battery of working cell phone; (6) probation officer did not believe defendant and directed defendant to give him cell phone; (7) probation officer was able to turn on cell phone and noticed picture of young boy on phone’s wallpaper; and (8) probation officer turned cell phone over to FBI, who obtained warrant and discovered child pornography on phone. Instant seizure of cell phone did not violate 4th Amendment, where phone was in plain view of probation officer, and where incriminating nature of cell phone was immediately apparent to probation officer. Also, Ct. held that seizure of cell phone was proper in context of defendant’s status as individual on supervised release, where probation officer had reasonable suspicion that defendant had violated conditions of his supervised release.

Dist. Ct. did not err in denying defendant’s section 2255 petition seeking to set aside his 30-year sentence that was based, in part, on finding that he qualified for enhanced sentencing treatment under Armed Career Criminal Act (ACCA) based upon three prior qualifying convictions. While one of defendant’s prior convictions that was used by Dist. Ct. to support said enhanced treatment, i.e., aggregated fleeing, was subsequently found in Johnson, 576 U.S. 591, to not qualify as predicate offense under ACCA, Dist. Ct. did not err in finding that another prior conviction for drug delivery did qualify as predicate offense under ACCA. As such, defendant could not establish any prejudice arising out of entry of his sentence. Ct. rejected defendant’s argument that he did not have fair notice that his drug delivery conviction would be used as predicate conviction for ACCA finding, where govt. gave him four-month formal notice prior to trial that his drug delivery conviction qualified as ACCA predicate offense. Moreover, defendant waived said issue by failing to argue in his section 2255 petition that his drug delivery conviction did not qualify as ACCA predicate conviction. Too, defendant procedurally defaulted his armed career criminal status claim by failing to mention it in his direct appeal.

Dist. Ct. did not err in entering $94,031.41 restitution order on charge of knowingly releasing into air asbestos-containing material, even though Dist. Ct.’s action took place after completion of sentencing hearing. While defendant argued that any restitution issue had to be resolved at sentencing hearing, where, as here, restitution figure could have been resolved at that time, Supreme Ct., in Dolen, 560 U.S. 605, found that Dist. Ct. does not lose its jurisdiction to consider restitution issue, even though Dist. Ct. missed applicable 90-day period for doing so. Moreover, Dist. Ct. had valid basis to continue resolution of restitution issue, where proposed restitution amount was disputed by defendant, and where defendant claimed that there was insufficient information concerning purpose of customers’ checks. Also, Dist. Ct. could calculate restitution based upon checks that were payable to defendant or his company that referred to asbestos services, and Dist. Ct. did not err in canceling restitution hearing, even though defendant wanted to establish that customers’ checks were for services other than asbestos abatement, where defendant’s counsel indicated that she was unaware of evidence to support defendant’s claims.

Dist. Ct. erred in finding that defendant did not qualify for enhanced sentencing treatment under Armed Career Criminal Act (ACCA), where defendant had prior convictions for 1994 Illinois armed robbery, 2009 federal distribution of crack cocaine, and 2015 Indiana Class D battery resulting in bodily injury. Both parties agreed that federal distribution conviction qualified for ACCA treatment, but Ct. of Appeals rejected defendant’s claim that his armed robbery conviction did not qualify for ACCA treatment because he had received restoration of rights letter with respect to said conviction, where Ct. noted that defendant did not testify that he had received any notice regarding any restoration of rights with respect to said conviction and never presented any notice alleged given to him. Moreover, defendant’s Indiana Class D battery conviction qualified as violent felony under ACCA, since: (1) under Indiana law, state needed to prove that defendant touched police officer in rude, insolent or angry manner and to prove that said touching resulted in bodily injury; and (2) if defendant’s touch resulted in bodily injury, then, by definition, said touching was capable of causing injury for purposes of qualifying as predicate offense under ACCA.

In prosecution on drug and firearm charges, Dist. Ct. did not err in denying defendant’s motion to suppress evidence seized from his girlfriend’s house, even though defendant argued that police conducted search outside of scope of warrant, where police stated in warrant application that, prior to search, it would deliver actual drugs found in intercepted mailed package addressed to defendant, and where police substituted flour and sugar when package was delivered to defendant. While defendant argued that police had sought anticipatory warrant where triggering condition for probable cause was delivery of actual drugs, Dist. Ct. could properly find that warrant was not anticipatory, and that delivery of actual drugs was not triggering condition. Moreover, magistrate judge could properly find that there was probable cause without delivery of actual drugs, where: (1) at time of issuance of warrant, police were aware that shipper had sent package to defendant containing distribution amount of controlled substance; (2) defendant’s car had been parked outside of girlfriend’s house and defendant had received other international deliveries there; and (3) officer asserted in warrant application that, in his experience, drug traffickers often kept drugs and guns where they lived. Also, any misrepresentation regarding delivery of actual drugs would not have altered magistrate judge’s probable cause finding.

Ct. of Appeals dismissed as moot State’s appeal of Dist. Ct.’s order that granted defendant conditional writ of habeas corpus, where, during pendency of instant appeal, State had complied with writ by obtaining vacatur in state court of original judgment of defendant’s conviction and by seeking re-trial of defendant. State’s appeal was moot because once defendant had been released from custody after his conviction had been vacated, Dist. Ct.’s jurisdiction over defendant’s case came to end. Similarly, Dist. Ct. lacked jurisdiction to grant defendant’s request for unconditional writ barring re-prosecution of defendant, which was subject of defendant’s cross-appeal. Ct. of Appeals alternatively found that vacatur of defendant’s conviction also rendered State’s appeal moot under Article III. Too, State could have avoided instant dismissal of its appeal by staying Dist. Ct.’s issuance of conditional writ pending its appeal and by refraining from initiating pretrial proceedings in state court and by moving state court to vacate underlying conviction.