Criminal Law

Record contained sufficient evidence to support three wire fraud counts stemming from allegation that defendant-Sheriff took kickbacks in form of election campaign contributions in exchange for award of tow-truck territories to individuals making said contributions. Witness testified that donating to defendant’s campaign was necessary to maintain his towing assignments/territories, and record showed that other towing companies who failed to buy full allotment of election campaign tickets had territories taken away. Dist. Ct. erred, though, in admitting chart that detailed payments above amounts alleged in charged offenses, even though

Dist. Ct. erred in denying defendant’s petition for collateral post-termination relief that challenged his 2003 sentence on drug conspiracy charges, where: (1) defendant was sentenced as career offender under section 4B1.1 based on his three prior residential burglary convictions; and (2) defendant claimed that he was sentenced under Guideline’s residual clause, which was unconstitutionally vague. Ct. of Appeals agreed with defendant that said clause was unconstitutionally vague. However, remand was required, since: (1) record did not conclusively show that defendant was sentenced under residual clause or under Guideline’s enumerated-offenses clause; and (2) without said determination, Ct. could not assess whether defendant was entitled to relief under Johnson, 135 S.Ct. 2551 and Cross, 892 F.2d 288. Defendant further argued that his prior residential burglary convictions did not fit definition of burglary offense contained in section 4B1.2(a)(2) for purposes of qualifying as crimes of violence, since residential burglary statute covered unlawful entry into vehicles.

In prosecution on drug distribution charge,

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress evidence seized from defendant’s cell phone, even though at time of defendant’s arrest, officer opened defendant’s flip phone and viewed photograph of firearm on phone’s home screen. While arresting officer’s actions amounted to likely unconstitutional search, Dist. Ct. could properly deny instant motion based on independent source doctrine, where record showed that: (1) police obtained search warrants following defendant’s arrest to search his cell phone based on fact that informant had previously provided police with picture of firearm that defendant had sent to informant; and (2) search warrant requests were supported by probable cause based on two controlled transactions regarding defendant's attempt to sell said firearm. Ct. rejected defendant’s claim that affidavits supporting issuance of warrant lacked facts to support any finding that informant was credible. Ct. further rejected defendant’s claim that certain delays violated Speedy Trial Act, where: (1) Dist. Ct. could properly find that continuance caused by govt.’s filing of superseding indictment alleging four new counts, along with over 1,000 pages of new discovery, five days before scheduled start of trial qualified for end-of-justice exclusion; and (2) delays caused by pending pre-trial motions are excluded from 70-day clock. Also, defendant failed to establish any prejudice to support his 6^th Amendment speedy trial claim, where, although certain witnesses could not recall certain facts due to two-year delay in bringing case to trial, defendant failed to explain what additional testimony such witnesses could have offered that would have helped his case.

Dist. Ct. did not err in denying defendant’s motion to suppress gun that officer seized from defendant’s front pocket, after police received tip that short black male wearing hoodie had gun in his front pocket while standing with group of individuals in front of housing project known for criminal activity, and that said group was engaged in suspicious activity. Officer could properly conduct instant Terry stop and subsequent protective frisk, where: (1) upon receiving tip, officer saw 10 individuals standing outside instant housing complex; (2) defendant was only person that generally matched tipster’s description of individual possessing gun; (3) officer was aware that defendant had prior felony; (4) defendant attempted to move and weave away from officer as officer got close to group; and (5) officer saw conspicuous large bulge in front pocket of defendant’s jeans. Fact that defendant was not wearing hoodie did not require different result.