Criminal Law

Dist. Ct. did not err in sentencing defendant to 40-year term of incarceration on drug, racketeering and firearm charges, even though defendant maintained that First Step Act applied to require lower sentence on his firearm charges. Text of First Step Act indicated that it applied to offenses committed prior to its enactment if sentence for said offenses had not been imposed as of date of Act’s enactment, and record showed that defendant had been sentenced for his relevant firearm offenses prior to Act’s enactment date. As such, First Step Act did not apply to defendant. Ct. rejected defendant’s argument that his sentence had not been imposed until all direct appeals of said sentence had been completed.

Defendant was not entitled to new trial on charge of possession of firearm by felon under 18 USC section 922(g)(1), even though jury instruction did not inform jury that govt. had burden to prove that defendant knew he was felon at time of his possession of firearm. While failure to give said instruction constituted plain error under Rehaif, 139 S. Ct. 2191, said error did not create risk of miscarriage of justice, where record contained strong circumstantial evidence that defendant knew that he was felon given multiple nature of his prior felony convictions and multiple-year sentences. Dist. Ct. also did not err in precluding defendant from introducing his prior statement of “what gun” to police at scene of his arrest, where said statement qualified as hearsay statement suggesting denial that he possessed gun. Dist. Ct. also did not abuse its discretion in allowing govt. to elicit testimony that defendant possessed $408 at time of arrest, where said testimony went to defendant’s motive to possess firearm, especially where motive was hotly contested by parties. Also, while admission of evidence regarding contents of radio dispatch that suggested that defendant was dealing drugs had only minimal probative value with respect to instant firearm charges, any error was harmless given strength of evidence showing that defendant actually possessed firearm.

Dist. Ct. did not err in denying defendant’s motion to dismiss on double jeopardy grounds charge of aggravated sexual abuse, where jury in original trial found that defendant committed aggravated sexual abuse, but further found that victim did not suffer bodily injury as result of said assault. Record showed that defendant received new trial on said charge due to ineffective assistance of counsel at original trial, and defendant argued in instant motion to dismiss that govt. could not re-try him on aggravated sexual abuse charge due to jury’s finding that victim did not suffer bodily injury as result of assault. Person can be convicted of aggravated sexual abuse under 18 USC section 2241(a) by either actual physical force or by threats or fear, and that it is possible to use physical force without causing bodily injury. As such, double jeopardy did not apply because, given victim’s testimony that defendant squeezed her neck during sexual assault, rational jury during first trial could have concluded that defendant forcibly grabbed victim’s neck without causing victim bodily injury. Also, re-trial on aggravated sexual abuse charge is permissible, where there was sufficient evidence for reasonable jury to have concluded that defendant knowingly placed victim in fear of death or serious bodily injury.

Dist. Ct. erred in sentencing defendant to 192-month term of incarceration on conspiracy to distribute methamphetamine charge, where said sentence was based on finding that methamphetamine involved in instant conspiracy met guideline definition of “ice” that was at least 80 percent methamphetamine. Although govt. was only required to show by preponderance of evidence that subject methamphetamine met 80 percent threshold, Ct. of Appeals rejected govt.’s proffered evidence from drug users, dealers and law enforcement officials that drugs associated with instant conspiracy appeared to be ice based on look, smell, effect or nomenclature, since said evidence logically could not distinguish between substances containing 79 and 80 percent methamphetamine. Moreover, govt. failed to produce any lab reports indicating purity of methamphetamine attributable to defendant. As such, defendant is entitled to new sentencing hearing.

Record contained sufficient evidence to support jury’s guilty verdicts for all 10 defendants on RICO charges of conspiring to engage in racketeering enterprise known as Hobos street gang. While defendants alleged that govt. failed to show that gang was “enterprise,” since record showed that they were no more than independent participants involved in unrelated criminal activity that operated without common purpose, gang qualified as RICO enterprise, where all defendants through their course of conduct worked to control exclusive territory, earned money through cooperative drug dealings and robberies, protected each other and killed rival gang members and others who posed threats to gang. Record further supported jury’s guilty finding with respect to two defendants as to charge that said defendants murdered individual in aid of gang’s racketeering conspiracy, where witness testified that he saw said defendants pull up in car and shoot victim, and where said murder was motivated by fact that said defendants were aware that victim had told federal officials that gang member possessed drugs and firearm. Also, jury could similarly find that other defendants either killed or attempted to kill victims in support of racketeering enterprise, even though record contained inconsistent evidence with respect to each charge. Dist. Ct. also did not err under forfeiture by wrongdoing doctrine in admitting against all defendants (as opposed to defendant who had actually killed said witness) out-of-court statements made by deceased witness, where: (1) under agency principals, record showed that all defendants had acquiesced in said murder; and (2) any error was harmless, since said statements could not have contributed to jury’s guilty verdict. One defendant, though, was entitled to reconsideration of his 40-year sentence on drug charges, where Dist. Ct. had failed to explain reason for upward departure from sentencing range for said charges.