Criminal Law

In prosecution on charge of forcibly assaulting federal officer with deadly weapon and discharging firearm during crime of violence that arose out of shooting of officer attempting to replace tracking devices on Latin Saints’ vehicles, Dist Ct abused its discretion in admitting evidence about ShotSpotter acoustic detection location system, as well as ShotSpotter employee who testified as expert witness for purposes of calculating location of shooter, where defendant argued that ShotSpotter methodology and its underlying data were not products of reliable principles and evidence. Dist. Ct. should have granted defendant’s multiple requests for Daubert hearing, where Dist. Ct. never sufficiently explored how ShotSpotter collects, analyzes and reports its data. However, any error was harmless where ShotSpotter evidence was cumulative of other evidence that established location of shooter. Also, record contained sufficient evidence to support jury’s finding that defendant was shooter, where: (1) videos showed defendant entering shooting area prior to shots being fired and leaving shooting area after shots had been fired; (2) defendant, as Latin Saints gang member, had motive to shoot officer, whom he could have believed was rival gang member; (3) defendant’s former girlfriend testified that defendant told her shortly after shooting that he felt: “good [and] F*** that [rival gang member];” and (4) shortly after shooting, defendant went to gas station and purchased white t-shirt, which jury could have properly viewed as attempt by defendant to change his appearance. (Dissent filed.)

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his firearms and sexual abuse of two young boys convictions, as well as his life sentence, where defendant alleged that his trial counsel was ineffective during guilty plea process, as well as at trial and sentencing hearing. Record showed that defendant reached initial plea agreement calling for sentence of 20 years, but said agreement fell apart when defendant refused to admit certain conduct during plea hearing. Government offered amended plea deal with same sentence, but defendant rejected offer and went to trial, where he was convicted on all charges. While defendant argued that counsel was ineffective for failing to seek specific performance on plea agreement, defendant failed to show any prejudice, where he rejected second plea offer, which was substantially similar to first offer. Ct. also rejected defendant’s argument that his counsel was ineffective by failing to: (1) call expert witness to counter government expert who testified to common features of child sexual abuse cases, where counsel had reasonable strategy to argue that expert’s testimony defied common sense; (2) call rebuttal computer expert to counter government’s expert, who testified as to how child pornography offenders obtain child pornography, where defendant failed to identify expert who could have given favorable testimony at time of trial; (3) introduce impeachment evidence of victim’s past sexual conduct with other boy, where said evidence would have been barred under Rule 412; and (4) object to prosecutor’s reference to defendant refusing to take polygraph, where admission of said evidence was not settled law within circuit. Counsel also was not ineffective during sentencing hearing by submitting expert report that contained opinions that were harmful to defendant’s mitigation evidence, where report supported defendant’s claim that he was not pedophile.

Dist. Ct. did not err in sentencing defendant to 276-month term of incarceration on drug and firearm charges, even though defendant argued that Dist. Ct. improperly included both uncharged and acquitted drug amounts in its sentencing guidelines calculation. While defendant asserted that govt. failed to present reliable information that he sold heroin and fentanyl to informant during four controlled drug buys for which he was not charged, record showed that said buys were used to obtain warrant to search defendant’s stash house, and police affidavit indicated that each of controlled buys from defendant resulted in seizure of heroin and fentanyl. Moreover, presentence report contained assertions from police concerning controlled-buy drug quantities that were sufficiently reliable to support preponderance of evidence finding by Dist. Ct., and defendant failed to present any conflicting evidence regarding controlled buys. Also, Dist. Ct. could properly find that uncharged and acquitted conduct was part of same course of conduct as charged offenses, where: (1) drug buys took place at same stash house as charged conduct and occurred regularly through weeks leading to search of stash house; (2) uncharged and acquitted conduct involved same drugs for which defendant was convicted; and (3) police found at stash house quantities of drugs at issue in uncharged and acquitted offenses, as well as drugs at issue in charged offenses.

In prosecution on robbery and brandishing firearm during crime of violence, Dist. Ct. erred in denying defendant’s motion in limine that sought ruling that would allow her to present evidence to support her duress defense, including expert evidence on battering and its effects. Record showed that defendant actually held gun during three charged robberies, and that her alleged abusive boyfriend was not present at any robbery. In order to establish duress defense, defendant must establish reasonable fear of imminent death or serious injury and absence of reasonable, legal alternative to committing crime, and Dist. Ct. found that plaintiff’s evidence, including her claim that her abusive boyfriend severely beat her, threatened her with gun on occasion and directed her to commit charged robberies in effort to obtain money for boyfriend’s drug purchases, did not meet either element for duress defense, where, among other things, boyfriend was not present during robberies. Ct. of Appeals, though, found that immediate physical presence of threat is not always essential to duress defense, and that Dist. Ct. erred in denying defendant’s request to present evidence from expert witness, who diagnosed defendant as suffering from P.T.S.D. and Battered Woman Syndrome, that would inform jury as to how objectively reasonable person under defendant’s circumstances might behave.

Dist. Ct. did not err in denying defendant’s section 2241 petition that challenged his 410-month sentence on 1994 robbery and firearm charges, where said sentence was based, in part, on finding that defendant’s prior convictions qualified him for enhanced sentence as career offender under then-mandatory Sentencing Guidelines. Record showed that defendant had unsuccessfully challenged his sentence in his direct appeal and his initial section 2255 petition. Moreover, while defendant argued that he could use section 2241 to raise instant challenge based on recent decision in Burris, 912 F.3d 386, which found that one of defendant’s prior convictions was not crime of violence for purposes of qualifying as predicate offense for career offender treatment, Dist. Ct. could properly find that defendant did not establish that he suffered miscarriage of justice arising out of instant career offender designation for purposes of obtaining relief under section 2241, since: (1) his current 110-month sentence on his non-section 924(c) firearm offenses fell at bottom of guideline range for non-career offender sentence; and (2) defendant’s 300-month sentence for his firearm offenses would be same with or without career offender designation.

Record contained sufficient evidence to support jury’s guilty verdict on two use-of-firearm in furtherance of crime of violence charges, even though defendant argued that he used fake firearm during relevant robberies. Photo in co-defendant’s cell phone introduced into evidence at trial contained image of silver and black Smith and Wesson handgun, and police recovered Smith and Wesson handgun magazine in defendant’s bedroom. Moreover, defendant failed to mention existence of fake gun during his custodial interview, and picture of alleged fake gun did not match gun in cell phone photo. Ct. also rejected defendant’s argument that Hobbs Act robbery is not crime of violence, where Ct. observed that Hobbs Act robbery entails use or threat of force. Dist. Ct. erred, though, in calculating restitution at $61,409.38, where said calculation included property that was in government’s possession.

Dist. Ct. did not abuse its discretion in denying defendant’s motion for compassionate release under 18 USC section 3582, where defendant based his request on his pre-diabetes and rheumatoid arthritis, together with COVID-19 pandemic. Medical records indicated that defendant did not have any diagnosis of rheumatoid arthritis, and that his pre-diabetes was not severe. Moreover, CDC did not recognize either condition as increasing person’s risk of severe illness from COVID-19. Also, government waived argument that Dist. Ct. improperly appointed counsel to represent defendant in instant compassionate release request, since it never objected to said appointment in Dist. Ct. Too, record showed that appointment was made pursuant to administrative order, and as such, government could only raise challenge to said appointment with Judicial Counsel of circuit.

Dist. Ct. did not err in denying defendant-prisoner’s request for compassionate release under 18 USC section 3582(c)(1)(A), where defendant maintained that his asthma and other breathing issues placed him at extra risk should he contract COVID-19 while in prison. Record showed that COVID-19 vaccines were readily available at defendant’s prison, and that defendant had refused offer for him to be vaccinated due to defendant’s perception that he might have allergic reaction to said vaccines. As such, Dist. Ct. need not accept prisoner’s self-diagnosed skepticism about COVID-19 vaccines as adequate explanation for remaining unvaccinated, and availability of vaccines under instant record made it impossible to defendant to show that risk of contracting COVID-19 is extraordinary and compelling reason for immediate release.