Criminal Law

Dist. Ct. did not err in sentencing defendant to 30-month term of incarceration plus 6 years of supervised release after finding that defendant had violated terms of his existing 10-year term of supervised release by assaulting his girlfriend and failing to either submit to drug tests and/or meet with his probation officer. Defendant failed to substantiate his claim that Dist. Ct. had failed to consider his argument that imposition of sentence longer than one-year would constitute unwarranted disparity in sentences given to other defendants, where defendant failed to either identify comparable defendant with similar record who was found guilty of similar misconduct or explain why comparatively longer sentence was unwarranted. Also, failure of Dist. Ct. to fill out written form that provided explanation for instant sentence was harmless error, where Dist. Ct. provided adequate oral explanations for imposition of sentence during sentencing hearing.

Dist. Ct. did not abuse its discretion in sentencing defendant to 210-month term of incarceration on gang-related racketeering conspiracy charge, even though defendant argued that he was entitled to sentence reduction based on fact that he had served time in state prison on 2008 conviction that formed part of relevant conduct associated with instant charged offense. Section 5G1.3(b) of USSG could not serve as support for instant reduction request, since, contrary to requirements of section 5G1.3(b), defendant had completed service of his sentence on his 2008 conviction at time of instant sentencing hearing. Moreover, while section 5K2.23 of USSG potentially could support instant reduction request even though defendant had completed his sentence on his 2008 conviction, any reduction based on said section was not mandatory, and Dist. Ct. did not abuse its discretion in failing to reduce defendant's sentence, where instant sentence was at bottom of relevant sentencing range, and where defendant had significant criminal history and had attempted to control conspiracy from jail.

In prosecution on charges of filing false lien and encumbrance against federal judge arising out of defendant’s filing of $10 million “common law liens” against several federal District Court judges, Dist. Ct. did not err in denying defendant’s motion for recusal under 28 USC section 455(a). Defendant had not filed subject lien against instant Dist. Ct. judge, and although said judge had professional relationships with Dist. Ct. judges who had been victims of defendant’s filing of instant liens, said relationships were not so close that Dist. Ct. needed to recuse himself from all matters involving his colleagues. Moreover, record otherwise showed that no victim had suffered any serious or long-term injury arising out of defendant‘s misconduct. As such, there was little risk that Dist. Ct.’s professional relationships with instant victims would have interfered with prosecution of case.

Ct. of Appeals dismissed defendant’s appeal of Dist. Ct.’s denial of her motion to withdraw her guilty plea to charges of conspiracy to kidnap and commissioning murder for hire. Instant plea agreement contained appellate waiver, and defendant indicated at plea colloquy that she understood and was waiving right to appeal. Moreover, language of appellate waiver, which covered defendant’s “right to appeal the conviction imposed in this case on any ground,” applied to defendant’s appellate claims that Dist. Ct. erred in denying her motion to withdraw her guilty plea and in imposing $74,848.71 restitution order. Ct. also rejected defendant’s claim that her guilty plea was involuntary because she was unaware of potential entrapment defense at time she entered into said plea.

In prosecution on kidnapping charges arising out of defendant’s kidnapping of children of former girlfriend in effort to recover cash and drugs he believed that girlfriend had taken, Dist. Ct. did not err in admitting three statements from former girlfriend that suggested that defendant was involved in uncharged criminal conduct involving prostitution, drug activity and physical assault. References to such conduct played no role in jury’s conviction given strength of evidence against defendant, and prosecution took efforts to advise girlfriend not to refer to uncharged conduct when testifying on behalf of govt. Moreover, defendant failed to ask Dist. Ct. to provide curative instruction for jury to ignore statements made by girlfriend that might run afoul of Rule 404(b). Also, Dist. Ct. did not commit plain error by admitting evidence regarding defendant’s cell-phone location that was obtained without warrant. Defendant must show good cause for failing to file motion to suppress said evidence, and defendant’s argument that he did not file such motion because of Circuit Court split on admissibility of such evidence did not provide good cause for failing to file motion to suppress. Too, Dist. Ct. did not err in sentencing defendant to life sentence, where his offense level was calculated at nine steps above top range for recommendation for imposing life term. Fact that defendant had asserted that Dist. Ct. erred in imposing two, two-level enhancements did not require remand for new sentencing hearing under instant plain error standard of review, since any successful argument would not have altered sentencing range.

Dist. Ct. did not err in sentencing defendant to 108-month term of incarceration and in ordering defendant to pay restitution in amount of $2,787,054.58 on Medicare fraud charges stemming from allegations that defendant either over-billed for services or certified patients for home-care services, who either were not entitled to said services or were not actually under defendant’s care. Dist. Ct. could properly find that defendant was responsible for fraudulently certifying eligibility of at least 305 individuals for home health care services that resulted in wrongful billings to Medicare of nearly $2.8 million, where record supported finding that said individuals were never under defendant’s care for purposes of defendant certifying said individuals for home health care benefits due to lack of evidence indicating that defendant had either made any in-home visits with said individuals or billed Medicare for any services rendered to said individuals. Moreover, Dist. Ct. could base restitution award on entire amount of payments Medicare had made on behalf of said individuals, where defendant played gatekeeper role in making finding that said individuals qualified for said benefits. Fact that some of instant 305 individuals could have actually qualified for said benefits did not require different result.

In prosecution on unlawful possession of firearm charges, Dist. Ct. did not plainly err in admitting prior consistent statements of govt. witnesses through police officer. While defendant argued that said evidence conflicted with Rule 801(d)(1)(B)(ii), since instant consistent statements by said witnesses to police officer at scene of defendant’s arrest were made at time when said witnesses had motive to lie, Ct. found that it was unclear whether introduction of consistent statements actually violated Rule 801(d)(1)(B)(ii). Ct also rejected defendant’s claim that testimony of 6-year-old witness regarding defendant’s possession of firearm was so prejudicial so as to warrant its exclusion. Moreover, govt. could call officer to impeach govt. witness, where, as here, anticipated testimony of said witness was unclear due to fact that govt. was not afforded opportunity to meet with said witness prior to witness taking witness stand. Too, record contained sufficient evidence to support defendant’s conviction on unlawful possession of firearm charge under theory that defendant had constructively possessed said firearm, even though firearm was found in defendant’s home where others also resided, where: (1) defendant was head of household; (2) police discovered three Crown Royal bags in said home, one of which contained firearm and another was tied to defendant’s pants; and (3) defendant attempted to influence his son’s testimony indicating that defendant did not possess said firearm.