Criminal Law

Dist. Ct. did not err in imposing as terms of defendant’s supervised release prohibition on defendant’s excessive use of alcohol, as well as limitation on defendant’s ability to travel within jurisdiction to which he would be supervised. Although both terms were impermissibly vague as drafted in written order, record reflected that Dist. Ct. had reviewed with defendant’s counsel definition of excessive use of alcohol as having blood alcohol level in excess of .08. As such, Ct. of Appeals included said definition in Dist. Ct.’s written order, rather than require remand for full re-sentencing. Ct. similarly altered defendant’s travel restriction to reflect that defendant remain in “judicial district” to which he would be supervised so as to provide defendant with clear geographical boundary as to where he might travel.

Dist. Ct. imposed $5,000 special assessment as part of defendant's sentence on charge of possession of sexually explicit material involving minors in violation of 18 USC section 2252(a)(4)(B), even though defendant argued that he was indigent. However, defendant had waived said issue on appeal, where plea agreement contained waiver clause that precluded appeals concerning “all provisions” of his sentence, including “amount of any fines.”

In prosecution on charges arising out of undercover police investigation of defendant’s communications with what defendant believed was 14-year old girl, but in actuality was police agent posing as said girl, Dist. Ct. did not err in denying defendant’s motion to suppress evidence that agent sent text message to defendant’s cell phone, after defendant had been arrested and his cell phone seized, to demonstrate that defendant had actually been communicating with agent. No 4^th Amendment violation occurred, where agent did not affirmatively access any information on phone and only witnessed what was in plain view. Moreover, defendant did not have reasonable expectation of privacy in conspicuous notifications that appeared on cell phone screen after phone was seized incident to arrest.

In prosecution on charge that defendants conspired to violate Hobbs Act in context of robbing bank, Dist. Ct. properly rejected defendants’ instruction that required jury to find existence of overt act in furtherance of conspiracy, since Hobbs Act conspiracy does not require showing of any act other than act of conspiring itself. Also, Dist. Ct. did not err in admitting agent’s testimony that interpreted certain slang words in text messages between defendants, where: (1) defendants made no request for Dist. Ct. to engage in Rule 702 analysis for proposed expert testimony; (2) Dist. Ct. could properly find that jury might not understand said slang terms; and (3) agent laid adequate foundation with respect to his knowledge of said terms. Moreover, while prosecutor did not clearly establish whether agent was testifying as expert or lay witness when interpreting slang terms, since agent also testified regarding his personal knowledge of case when giving context to said slang terms, said error was harmless given other evidence of defendant’s guilt. Also, Dist. Ct. erred in admitting agent’s testimony that identified one defendant as perpetrator in bank surveillance video, since there was no basis for concluding that agent was more likely to correctly identify defendant from video than jury. However, said error was harmless in light of other evidence against defendant.

Dist. Ct. did not err in sentencing defendant to 21-month term of incarceration on charge of wire fraud, where said sentence was based, in part, on stipulated loss amount of $201,521.41 arising out of defendant’s submission of claims to Veterans Administration, where said loss was used to calculate his guideline range and amount of restitution. Ct. of Appeals determined that defendant had waived any objection to calculation of loss amount, since: (1) defendant had agreed, as part of plea agreement, that he was overpaid $201,521.41 in disability payments, and that restitution should be in said amount; and (2) said figure was product of compromise between defendant and prosecutor. Moreover, defendant could not assert that issue was merely forfeited, and thus was reviewable under plain error standard, since defendant made strategic decision to stipulate to said loss, rather than face criminal liability for other submissions of claims.

Dist. Ct. did not err in sentencing defendant to one year plus one day term of incarceration on drug distribution charge. Dist. Ct. could properly compare defendant’s conduct to that of co-defendant, who received 7-month term of incarceration, where: (1) said individual held minimal role in drug distribution scheme; and (2) defendant’s participation in scheme’s drug sales was more extensive than co-defendant. Moreover, Dist. Ct. adequately considered all of section 3553(a) factors, as well as defendant’s mitigation evidence. Also, while Dist. Ct. orally misstated length of time of defendant’s participation in said scheme during sentencing hearing, no reversible error occurred, since: (1) Dist. Ct. corrected mistake in subsequent written order and indicated that difference between accurate and inaccurate information did not actually affect sentence; and (2) instant sentence was within applicable guidelines and defendant did not assert that sentence was substantively unreasonable.