Criminal Law

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his murder conviction on ground that his appellate counsel was ineffective for failing to preserve issue regarding his trial counsel’s failure to object to trial court’s error in failing to poll jury on jury’s guilty verdict. While trial court erred in failing to poll jury, defendant had waived issues that his trial and appellate counsel were ineffective for failing to object to trial court’s jury-polling error or failing to raise said error on appeal by failing to raise either issue in habeas petition. Moreover, defendant procedurally defaulted instant issue regarding appellate counsel’s failure to preserve trial counsel’s failure to object to trial court’s jury-polling error, since defendant failed to present said issue through one complete round of state-court review either in direct appeal or post-conviction petition. Fact that defendant had generally alleged that he was victim of ineffective assistance of counsel or broadly challenged underlying polling issue was insufficient to preserve instant issue for consideration by Ct. of Appeals.

Dist. Ct. erred in sentencing defendant to 87-month term of incarceration on unlawful possession of firearm charge, where said sentence was based in part on Dist. Ct.’s erroneous understanding of extent of defendant’s criminal history. Record showed that defendant had five prior felonies, yet Dist. Ct. believed that defendant had six prior felonies, which it emphasized when imposing instant sentence. Ct. rejected govt. argument that any error was harmless given defendant’s overall extensive criminal history, since harmless error review is inappropriate where sentencing judge has relied on misinformation, and where instant miscount of felonies received explicit attention when Dist. Ct. selected defendant’s sentence using section 3553(a) factors.

Dist. Ct. erred in sentencing defendant to below guideline, 260-month term of incarceration on drug conspiracy charge, where said sentence was based, in part, on belief that defendant’s prior Arizona conviction on charge of possession of dangerous drug qualified as felony drug offense for purposes of section 841(b)(1)(A), which subjected defendant to mandatory minimum sentence of 240-month term of incarceration. Arizona conviction did not qualify as felony drug offense under categorical approach, since Arizona’s definition of dangerous drugs contained two drugs not contained in section 802(44). As such, limited remand was required for Dist. Ct. to determine whether it would have imposed same sentence irrespective of instant error under circumstances where applicable guideline range of 365 to 405 months would stay same with or without Arizona conviction, but defendant’s mandatory minimum sentence would be reduced from 20 years to 10 years.

In prosecution on sex trafficking charges, govt. failed to comply with expert witness disclosure requirements set forth in Fed. Rule Crim. Pro. 16(a)(1)(G), which requires that disclosure contain written summary of any expert witness testimony that govt. intends to use in its case in chief. Instant summary was improper because it merely listed series of topics without any explanation of what expert intended to say on said topics, and Ct. rejected govt. contention that said description was adequate since expert was providing only “background, educational testimony” about sex-trafficking. However, any error was harmless, where evidence of defendant’s guilt was overwhelming based on testimony from actual victims of defendant’s prostitution operation who provided details as to their recruitment and retention in defendant’s prostitution operation. Ct. also rejected defendant’s claim that expert’s testimony constituted impermissible evidence of “group character trait,” since expert did not delve into propensity of people with certain dispositions to commit sex-trafficking crimes, but rather compared typical modus operandi of sex-traffickers with defendant’s use of similar techniques.

Dist. Ct. did not err in sentencing defendant to 145-month term of incarceration on drug conspiracy and drug distribution charges based, in part, on calculation that defendant’s drug offenses concerned drug sales made by others in conspiracy and on fact that co-conspirator had gun in her possession during at least one drug sale. Defendant could be held responsible for drug sales made by co-conspirators, since said sales were foreseeable by defendant. Moreover, instant firearm enhancement was supported by evidence, where defendant had actually noticed co-conspirator possessing gun during one drug sale and had taken measures to conceal it from detection. 

Record contained sufficient evidence to support defendant’s convictions for receiving kickbacks under Anti-Kickback Statute and for conspiracy to offer kickbacks, arising out of scheme in which defendant received $500 from third-party for each Medicare patient that defendant referred to third-party who was ultimately accepted into third-party’s home health care services program. Record showed that defendant was aware that said referrals were illegal at time they were given to defendant, where defendant had admitted to same when she was arrested by police. Ct. rejected defendant’s contention that govt. had failed to establish conspiracy among herself and members of third-party’s organization, where defendant had written agreement with third-party to make such referrals as independent contractor, and where defendant’s ability to obtain referral fee was dependent on over-all success of scheme. Ct. further rejected defendant’s claim that: (1) Anti-Kickback Statute applied only to relevant-decision-makers who made decisions with respect to acceptance of patients into third-party’s home health care program; and (2) she qualified for safe-harbor provisions of Anti-Kickback Statute either as individual supplying patients to qualifying home health care center or as “employee” of entity providing services for Medicare patients.