Criminal Law

Dist. Ct. did not err in sentencing defendant to 57-month term of incarceration on charge of possession of child pornography arising out of defendant’s receipt and viewing of pornographic photos of defendant’s minor daughter that were taken by defendant’s husband and father of said daughter. Dist. Ct. used correct guideline (USSG section 2G2.1), where, as here, record showed that: (1) defendant not only knew of her husband’s interest in child pornography, but also shared with her husband instant pornographic pictures of her daughter; and (2) defendant had explicit knowledge that husband had taken pictures of daughter and did nothing to prevent him from doing so. Fact that defendant claimed that she feared husband during relevant time period did not require that Dist. Ct. use more lenient sentencing guideline.

In sentencing defendant on charges of conspiracy to violate RICO and interstate transportation of stolen property, Dist. Ct. erred in failing to make particularized findings about scope of conduct attributed to defendant when sentencing defendant to 72-month term of incarceration based on loss caused by entire conspiracy. However, no reversible error occurred, where: (1) Dist. Ct. found that loss attributable to defendant was $1,848,868.50; and (2) defendant failed to show reasonable probability that relevant conduct would reveal loss under $1.5 million for purposes of sentencing defendant under lower sentencing guideline range. However, remand was required with respect to Dist. Ct.’s imposition of $1,811.679.25 restitution order, where restitution amount included loss to at least one victim that occurred at time when defendant was not part of charged conspiracy.

Record contained sufficient evidence to support defendant’s convictions on mail fraud and bank fraud charges arising out of scheme to misrepresent her income and liabilities that caused lenders to issue mortgage and refinance loans related to two properties owned by defendant. Govt. could properly allege one overarching scheme that covered transactions inside and outside of relevant 10-year limitations period that involved plaintiff’s submission of false statements to bank to obtain mortgage and re-finance loans, as well as submission of documents related to plaintiff’s ultimate sale of properties to straw buyer. With respect to mail fraud charge, record showed that: (1) defendant inflated income and misrepresented liabilities on loan applications to bank, as well as used straw purchaser to purchase her properties while failing to disclose true details of sale that involved kickbacks to true purchaser; (2) said misrepresentations caused bank to make two loans to straw purchaser; (3) bank subsequently incurred loss when foreclosing on one property; and (4) defendant used mail when sending payoff check relating to purchase of one property. With respect to bank fraud charge, in addition to defendant’s submission of false statements to bank, record showed that defendant was aware that funds for loans originated from bank, due to her extensive experience in real estate industry and her intimate involvement in scheme that included transactions involving sale of defendant’s properties to straw buyer.

In prosecution on unlawful possession of firearm charge arising out of police stop of defendant’s vehicle shortly after gunshots had been filed in neighborhood, Dist. Ct. did not err in denying defendant’s motion to suppress gun seized from defendant’s vehicle where police used GPS-enabled sensors that identified location of gunfire prior to stopping defendant’s vehicle. Record showed that: (1) sensors alerted police dept. on two occasions to presence of gunfire at specific address; (2) 911 call confirmed that shots had been fired and that cars and one individual was observed leaving scene of shooting; (3) officer observed defendant’s vehicle driving away from scene of shooting on only street leading from shooting scene 5.5 minutes after initial report of shooting; and (4) officer could rationally infer that defendant’s vehicle had participated in recent gunfire so as to support stop and search of defendant's vehicle, where, in addition to above factors, defendant’s vehicle was only vehicle on street of shooting at time when there was no other traffic, and where officer had personal knowledge of criminal activity in area of shooting. (Dissent filed.)

Dist. Ct. had jurisdiction over instant charge under 18 USC section 666 of theft from local govt. that received federal funds, arising out of scheme, where defendant ordered $1.3 million worth of computer equipment on City of Gray, Indiana vendor accounts and then selling said equipment for cash. While defendant argued that Dist. Ct. lacked jurisdiction because City Dep’t. where defendant worked and ordered equipment did not receive any federal funds, Dist. Ct. had subject-matter jurisdiction under 18 USC section 3231 to hear case, and any failure to establish federal funds element goes only to merits of case and not to Dist. Ct.’s authority to hear case. Moreover, federal funds element was satisfied as long as City as whole received more than $10,000 in federal funds. Also, lay witness could properly testify that she believed that there was “some kind of fraud” going on at time she received email from defendant, since said testimony concerned only witness’ personal thoughts upon receiving email and not her opinion that defendant had in fact committed fraud regarding defendant’s computer orders. Also, Dist. Ct. could impose two-level enhancement for obstruction of justice, where defendant had faked mutism that caused one-year delay in her trial.