Criminal Law

Dist. Ct. did not abuse its discretion in sentencing defendant to 30-month term of incarceration, after finding that defendant had violated terms of supervised release that included defendant’s participation in domestic battery, even though defendant argued that Dist. Ct. based length of term of incarceration on fact that defendant’s 35-year sentence on underlying drug conviction had been reduced to 20-year sentence due to retroactive amendments to sentencing guidelines. While Dist. Ct. believed that upward departure on guideline for revocation of supervised release was permissible under Note 4 to section 7B1.4, Note 4 was not applicable because original sentence involved no downward departure or charge reduction. However, instant error was subject to plain error standard due to defendant’s failure to object to Dist. Ct.’s reference to Note 4. Moreover, said error was harmless, where Dist. Ct. selected 30-month sentence by applying section 3553(a) factors that included nature and circumstances of defendant’s supervised release violations and his violent assault of his former girlfriend.

In prosecution on bank fraud and filing false tax return charges, Dist. Ct. did not err in sentencing defendant to 66-month term of incarceration that was based, in part, on finding that defendant was not entitled to credit for acceptance of responsibility under section 3E1.1 of USSG, even though defendant had pleaded guilty to said charges. Record showed that defendant made no real acknowledgment of conduct that made him central figure in bank fraud scheme involving submission of loan applications containing false financial information, and defendant otherwise had falsely denied much of alleged misconduct at issue in charged bank fraud offense. Dist. Ct. erred, though, in imposing three-year term of supervised release on tax return charge, since statutory maximum term of supervised release for instant tax return charge is one year. Also, Dist. Ct. did not err in refusing to offset $10.8 million restitution order by value of unsold real estate still held by victim-bank as result of bank fraud scheme, since: (1) there was no showing by defendant that bank had made decision to hold said property indefinitely as investment; and (2) instant restitution order is subject to modification in future if and when bank sells properties involved in bank fraud scheme.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his attempted murder conviction on ground that his trial counsel was ineffective when he promised to jury in opening statements that defendant would testify, but then persuaded defendant not to testify after counsel learned from trial court that some of defendant’s prior convictions and evidence that defendant possessed book on how to poison people could be used on any cross-examination of defendant. Ct. rejected claim that there is automatic finding of ineffective assistance of counsel whenever trial counsel promises to present key witness who never actually testifies, and state’s appellate court could properly have found that there was no possibility of prejudice arising out of instant promise, where evidence was overwhelming that defendant attempted to poison victim.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress statements made to police, even though defendant claimed that officer had failed to give him appropriate Miranda warnings. Defendant conceded that officer read him warnings from card, and officer testified that state had issued him said card from which he had read warnings. Burden of persuasion remained on defendant, such that silence in record regarding contents of card that was read to defendant did not establish that any error had occurred, and that defendant needed to show what was on said card.

In prosecution on charge of tax fraud, Dist. Ct. did not err in imposing 36-month term of incarceration, after finding that defendant had total offense level of 24 based, in part, on its calculation that defendant had intended loss of over $1.5 million. Record showed that: (1) defendant requested four refunds of approximately $300,000 in first four years of tax scheme involving alleged hidden bank accounts for U.S. citizens called “legacy trusts” and using fraudulent information; and (2) defendant received $149,358 refund in fifth year of tax scheme, but was denied similar requests for refunds in three subsequent years of tax scheme. Dist. Ct. could properly calculate intended loss as total amount of refund requests, and Dist. Ct. did not err in finding that defendant was responsible for statements made in all tax returns at issue in charged offense. Ct. rejected defendant’s claim that he intended to only keep $300,000 of requested tax returns.

Dist. Ct. erred in granting defendant’s habeas petition, challenging his drug-related conviction on ground that his trial counsel was ineffective for failing to present best argument to support his motion to suppress drugs seized by police from locked box in his car during inventory search of his car when officers used screwdriver to pry open box. While Dist. Ct. found that defendant’s constitutional rights had been violated because police had violated their own policy that prohibited unreasonable damage to property during inventory search, and because trial counsel had failed to raise argument at time motion to suppress was filed, any departure by police from local policy lacked constitutional significance. Moreover, instant local policy, which provided that officers should avoid opening containers where it would cause unreasonable potential damage to property, was valid policy, such that Dist. Ct.'s disagreement with discretion used by police officers did not make search of box unconstitutional. Ct. also observed that defendants did not violate local policy, where box was generally intact after search occurred, such that if any “unreasonable” damage to box occurred, such damage could be focus of tort claim only.