Criminal Law

Dist. Ct. did not err in sentencing defendant to below Guidelines, 144-month term of incarceration on Hobbs Act robbery and firearm charges, even though defendant argued that Dist. Ct. failed to address his financial hardship, his family ties, and his lack of criminal record. Dist. Ct. stated that it had reviewed defendant’s 12-page sentencing memorandum and rejected defendant’s claim that his financial hardship provided meaningful excuse for his criminal conduct. Also, while Dist. Ct. did not specifically discuss defendant’s lack of criminal record, his strong family ties or drug use, Dist. Ct. received written and oral arguments that discussed said issues and imposed below-Guidelines range sentence, so as to evidence fact that Dist. Ct. had considered said arguments and rejected them. Moreover, defendant presented only stock arguments with respect to his mitigation claims, which Dist. Ct. was free to reject without discussion.

Dist. Ct. did not err in denying defendant’s petition for writ of coram nobis, even though defendant argued that his trial counsel was ineffective for failing to advise him of certain negative deportation consequences prior to his pleading guilty to drug distribution charge. Record showed that defendant, who is now deported, failed to file any direct appeal or habeas petition to seek similar relief, and defendant failed to present contemporaneous evidence showing that he would not have pleaded guilty had he been properly advised as to strong potential of deportation following his guilty plea. Moreover, defendant failed to provide any explanation to justify either his failure to file direct appeal/habeas petition with respect to ineffective assistance of counsel issue or his delay in waiting five years to file instant coram nobis petition, where defendant knew in advance of his sentencing hearing that his conviction could lead to his deportation.

In prosecution on Medicaid theft charges arising out of defendant’s embezzlement of funds from medical practice, where defendant transferred via computer Medicaid reimbursements from physician’s business account to defendant’s personal account, Dist. Ct. did not err in denying defendant’s motion for mistrial after prospective juror stated during voir dire that physician had “home for autism,” even though Dist. Ct. had previously granted defendant’s motion to preclude govt. from drawing attention to fact that physician had adult child with severe autism. Prospective juror’s statement did not implicate defendant’s guilt and was not inflammatory or material to any issue in case. Dist. Ct. also did not err in finding that physician was financially and technologically unsophisticated so as to support vulnerable victim enhancement, and any error in imposing said enhancement was harmless, where Dist. Ct. indicated that it would impose same sentence regardless of said enhancement.

Dist. Ct. committed plain error in sentencing defendant to 93-month term of incarceration on unlawful possession of firearms as felon, possession of stolen firearms, and cargo theft charges arising out of defendant’s theft of 13 firearms that had been stolen from train car. While record showed that defendant had sold said firearms to anonymous buyers who had telephoned defendant about sale of said firearms after they had “heard about it,” said evidence did not support Dist. Ct.’s imposition of enhancement under section 2K2.1(b)(5) of USSG (i.e. trafficking firearms to people defendant knew or had reason to know were unlawful users or possessors of firearms), where: (1) record was unclear as to what buyers heard; and (2) Dist. Ct could only speculate that defendant had reason to believe that said buyers were unlawful firearm users or possessors. As such, defendant was entitled to new sentencing hearing.

In prosecution on unlawful possession of firearm by felon charge, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of firearm from backseat of defendant’s car following traffic stop on charge of running red light. Record showed that: (1) police officer noticed that after stop defendant made suspicious moves of bending at waist and then moving torso and both arms into back seat of car; (2) officer perceived that defendant might be getting control of something from back seat and then ordered defendant out of car and patted him down; (3) defendant appeared nervous and mentioned that “people are trying to kill me;” and (4) officer eventually handcuffed defendant, placed him in back seat of locked squad car and searched defendant car, where he found rifle in back seat. Defendant’s furtive movements and officer’s perception that defendant was on drugs provided officer with reasonable suspicion that defendant had potentially concealed firearm in car so as to support officer giving defendant protective frisk. Also, search of car was reasonable under Long, 463 U.S. 1032, since: (1) defendant was not under arrest throughout encounter; (2) defendant could still be dangerous if allowed to return to vehicle; and (3) officers harbored reasonable belief that defendant had concealed weapon/drugs via his furtive movements. Result would be different if defendant had been under arrest at time of search.

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant’s motion to suppress drugs seized from his truck that was parked in gated parking lot, under circumstances where: (1) defendant sold three kilograms of cocaine to buyer at defendant’s parked truck; (2) police in Ohio apprehended buyer who informed police that defendant had sold him said drugs on prior day; (3) Ohio police informed Illinois police about transaction, and Ill. police immediately went to parking lot and entered lot when another individual drove into lot; (4) Ill. police confirmed identity of defendant’s truck and brought dog into lot to conduct sniff test; and (5) after dog alerted to presence of drugs in defendant’s truck, police broke window and found eight more kilograms of cocaine in defendant’s truck. Defendant could not assert any 4^th Amendment violation, where defendant did not own parking lot, did not have assigned parking space and could not keep third parties from entering lot. Moreover, only person who could assert 4^th Amendment violation was lot owner. Also, Dist. Ct. did not err in precluding defendant from calling prosecution’s expert witness, where defendant failed to comply with Rule 16(b)(1)(C) by giving prosecution prior written summary of expert’s proposed testimony. Fact that govt. had previously disclosed expert and provided description of his expected testimony did not require different result.