Criminal Law

In prosecution on drug distribution charge, Dist. Ct. did not commit reversible error in sentencing defendant to 71-month term of incarceration, as well as 5-year term of supervised release, even though defendant maintained that Dist. Ct. had miscalculated his criminal offense level as Level IV, instead of Level III. Any error was harmless, where Dist. Ct. declared that it would have imposed same sentence regardless of criminal offense level calculation. Moreover, instant sentence was justified based on defendant’s criminal history, as well as fact that defendant had committed instant offense while still on supervised release for prior conviction on drug distribution charge. Also, Dist. Ct. was not required to articulate for second time factors it used when imposing term of incarceration for purposes of explaining imposition of 5-year term of supervised release instead of recommended 3-year term of supervised release.

In prosecution on bank robbery charge, Dist. Ct. did not err in denying defendant’s request for Franks hearing for purposes of inquiring into credibility of FBI agent, who procured warrant for samples of defendant’s DNA that ultimately matched DNA found on clothing items worn by bank robber. While warrant contained misleading language in that agent stated that bank robber wore, among other things, black cap that contained DNA that matched defendant’s DNA, where no one at bank had seen robber wear said cap, record showed that cap was found near other items that were worn by bank robber and was found two blocks from bank in direction that robber had fled. No Franks hearing was required, since: (1) removing misleading information from warrant application would not defeat probable cause finding; and (2) other information in warrant application was sufficient to generate fair probability that black cap was linked to crime scene. Also, defendant failed to present evidence that agent’s misrepresentation was either reckless or deliberate.

Record contained sufficient evidence to support jury’s guilty verdict on charges of health care fraud and making false statements affecting health care matter arising out of defendant-dermatologist’s submission of claims to patients’ insurance companies for sessions of IPL treatments for alleged pre-cancerous lesions associated with actinic keratosis condition. Record showed that eight patients named in indictment did not actually have actinic keratosis and were purposely misdiagnosed as having such condition, that some sessions occurred even though patients did not have any lesions, and that defendant used IPL treatments for cosmetic purposes which were not covered under said policies. Fact that government relied on circumstantial evidence to establish defendant’s guilt did not require different result. Also, prosecutor did not commit plain error when misstating during closing argument that defendant had admitted to insurance company that he used IPL treatments for cosmetic purpose, since: (1) defendant’s counsel reminded jury of actual testimony; and (2) record otherwise contained substantial evidence of defendant’s guilt.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder and robbery convictions arising out of incident in which victim was killed during robbery of marijuana by three gang members, even though defendant argued that prosecutor committed misconduct during closing arguments. While defendant argued that prosecutor improperly referred to his failure to testify by noting that defendant had failed to present facts to support claim that he was not at crime scene, said reference did not deprive defendant of fair trial since prosecutor’s observation could be construed as proper comment about weakness of defendant’s defense. Moreover, trial court otherwise gave curative jury instruction regarding defendant’s failure to testify. Also, while defendant argued that prosecutor injected facts outside the record during rebuttal portion of closing argument regarding claim that defendant and other gang members entered into agreement with “wink” and “nod,” said comment was fair observation that defendant made agreements with other gang members nonverbally.

Defendant waived any objection to Dist. Ct.’s imposition as term of supervised release ability of probative officer to visit defendant at his home, work or other reasonable location at any reasonable time, where defendant’s counsel affirmatively told Dist. Ct. that he had no objection to instant visitation condition. Fact that defendant may have been reluctant to object to said condition out of fear that he might incur longer sentence did not require different result. However, Dist. Ct. erred in imposing as term of supervised release prohibition against excessive consumption of alcohol, where Dist. Ct.’s failure to include definition of excessive alcohol consumption in said condition rendered said condition too vague. However, presentence report, which Dist. Ct. referenced in imposition of said condition, contained definition of excessive alcohol consumption as blood alcohol reading in excess of .08 percent. As such, Ct. of Appeals modified said condition to include said definition, where Dist. Ct. had intended to use said definition when imposing said condition.