Criminal Law

In prosecution on drug and firearms charges, Dist. Ct. did not err in denying defendant's motion to suppress seizure of guns and drugs found at defendant's home pursuant to search warrant, under circumstances where police used uncontrolled acquaintance of confidential informant to make two purchases of drugs from defendant at defendant's home. While defendant argued that use of uncontrolled acquaintance of confidential informant negated any probable cause finding when search warrant was issued, especially where police had failed to search acquaintance prior making instant drug purchases, Dist. Ct. properly found existence of probable cause to search defendant's home following instant drug purchases, where: (1) police enlisted reliable confidential informant, who reached out to acquaintance who indicated that he could buy drugs from defendant at his home and that defendant had guns in his home; (2) prior to making said drug purchases, police searched and wired confidential informant; (3) confidential informant thereafter met with acquaintance and gave acquaintance money to buy drugs from defendant; (4) police observed informant, who was unaware of police involvement in said purchases, enter defendant's home and leave 18 minutes later; and (5) acquaintance then immediately met with informant and handed drugs to informant. Fact that police did not witness drug sales did not require different result, since above facts indicated likelihood that defendant was selling drugs from his home, and defendant did not otherwise identify what motive acquaintance would have had for deceiving informant about source of drugs.

Dist. Ct. erred in revoking defendant's supervised release, after finding that defendant violated terms of his supervised release by missing drug test, as well as two mental health and substance abuse assessments, and sentencing defendant to 6-month term of incarceration and additional 120-days in community confinement plus 26 months additional supervised release. Dist. Ct. failed to provide justification for instant revocation and/or prison sentence, under circumstances where: (1) Dist. Ct. did not adequately explain its rejection of defendant's defense that he lacked intent to violate applicable conditions of supervised release and had made reasonable and good-faith attempts to comply with said conditions; and (2) Dist. Ct. did not explain its determination as to why defendant should serve additional six-month term of incarceration, especially where defendant had made bona-fide efforts to make himself available to take drug test and assessments, and where defendant had otherwise tested negative on all other drug tests and had not violated any other term of supervised release. Ct. also noted that Dist. Ct. did not articulate whether it found defendant to be not credible.

Record contained sufficient evidence to support defendant's conviction on wire fraud charges that stemmed from defendant's unauthorized use of credit card belonging to company where male companion was employed. Record showed that defendant and companion spent $5.8 million on personal luxury items and rental expenses through use of company credit card, and defendant continued to make purchases on credit card after companion indicated that said spending placed him at risk of going to jail. Defendant failed to move for judgment of acquittal, and thus plain error standard applied to defendant's reasonable doubt argument, and while defendant argued that she only was aware of companion's fraudulent use of credit card, record showed that defendant had requisite intent to defraud, where defendant also participated in illicit spending. Also, defendant waived argument that Dist. Ct. erred in admitting certain evidence, where defendant either referred to said evidence in attempt to advance her defense to charged offense or stipulated to admission of said evidence. Too, Dist. Ct. did not err in imposing sophisticated means enhancement under section 2B1.1(b)(10)(C) of USSG based upon defendant's alteration of tax records to support her lease application for California home.

Dist. Ct. erred in denying without holding evidentiary hearing defendant's habeas petition that challenged his 140-month sentence on his Hobb's Act robbery convictions that was based, in part, on imposition of career offender enhancement under section 4B1.1 of USSG, where defendant alleged that his trial counsel was ineffective for stipulating that defendant's Hobb's Act robbery convictions qualified as "crimes of violence" for purposes of imposing said enhancement. At time of entry of 2018 guilty plea, there was no binding precedent in instant circuit as to whether Hobb's Act offense qualified as crime of violence for purposes of career offender enhancement, and Dist. Ct. denied habeas petition based on belief that defendant's trial counsel's failure to anticipate argument that had not yet been accepted could not be deemed constitutionally deficient. However, Ct. of Appeals noted that at time of entry of instant guilty plea, 10^th Circuit Court of Appeals had found that Hobb's Act offense did not qualify as crime of violence under 2016 amendment to guideline definition of crime of violence. Moreover, Ct. found that trial counsel's apparent failure to investigate or raise challenge to career offender enhancement could be deemed deficient performance, where case law sufficiently foreshadowed instant enhancement issue. As such, defendant was entitled to evidentiary hearing to explore trial counsel explanation regarding basis of his representation of defendant and/or his failure to raise enhancement issue. Ct. also joined other circuits to find that Hobb's Act robbery offense is not crime of violence for purposes of career offender enhancement.

Record contained sufficient evidence to support defendant's conviction on charge of felon in possession of firearm, where arresting officer testified that he saw defendant point silver handgun at him, and where silver gun was eventually found in roof of gutter in nearby house. While defendant denied possessing handgun and video of encounter did not clearly indicate that defendant possessed handgun, jury was entitled to accept officer's testimony that human eyes can see more details in person than what appeared in video. Moreover, jury was allowed to believe officer's testimony over defendant's denials. Also, Dist. Ct. did not err in adding eight levels to defendant's offense level based on his 2004 Illinois drug conviction, where said offense qualified as "controlled substance" under section 2K2.1(a)(4)(A) of USSG. Ct. rejected defendant's claim that definition of controlled substances offense in section 4B1.2(b) of USSG is coterminous with substances mentioned in Controlled Substances Act.

Dist. Ct. did not commit reversible error when sentencing defendant to 360-month term of incarceration, as well as imposing $1,100 special assessment, after defendant had entered into guilty plea to 11 felony robbery-related offenses, even though plea agreement called for sentence in 360-to-420-month range, as well as $900 special assessment. Relevant statute mandated imposition of $100 special assessment per felony count, and Dist. Ct. effectively rejected plea agreement when it failed to impose specified sentence in its entirety. Moreover, Dist. Ct. erred by failing to follow Rule 11(c)(5) procedures that allow defendant to withdraw his guilty plea when Dist. Ct. rejects plea agreement, after it told defendant that he would be allowed to withdraw his guilty plea if it did not accept plea agreement. However, defendant did not object to sentence when it was imposed, and any error was not reversible under plain error standard, where: (1) defendant received lawful sentence as Dist. Ct. was required to assess $100 per felony count; and (2) Dist. Ct.'s $200 variance did not undermine fairness, integrity or public reputation of judicial proceedings.