Criminal Law

Dist. Ct. did not err in imposing below-Guideline 24-month term of incarceration plus 24-month term of supervised release on wire fraud charge that stemmed from defendant’s misrepresentations to investors as to amount of money he would invest on their behalf. Record showed that defendant told investors that he had planned to raise and invest $250,000, but actually raised $680,000 and invested only $200,000, while pocketing $480,000 difference for his own personal use. As such, Dist. Ct. could properly calculate intended loss at $480,000 and actual loss at $406,000 so as to support instant sentencing range, as opposed to defendant’s claim that relevant loss was only $70,000. Also, defendant could not look to appreciation from $200,000 investment to offset $480,000 that he had embezzled. Ct. further rejected defendant’s claim that loss calculation played too great of role in calculating applicable of sentencing range. Remand, though, was required with respect to Dist. Ct.’s imposition of three terms of supervised release, since Dist. Ct. had failed to address defendant’s objections with respect to imposition of said terms.

Dist. Ct. erred in imposing certain conditions as terms of supervised release as part of defendant’s sentence upon finding that defendant had violated other previously-imposed terms of supervised release as part of his sentence on charge of possession of child pornography. With respect to condition that defendant inform third-parties of any risk associated with his history of possession of child pornography, Dist. Ct. failed to define with specificity identities or categories of individuals and types of risks to which notification conditions would apply. With respect to condition barring defendant from knowing receipt of any material depicting sexually explicit conduct, Dist. Ct. failed to provide sufficient rationale for said imposition of what otherwise would be legal pornography, where Dist. Ct. merely stated that pornography bar was necessary to assist defendant to successfully complete Sex Offender Treatment Program. Also, Dist. Ct. erred in requiring defendant to participate in substance abuse treatment program, where: (1) defendant admitted to single use of marijuana two years prior to revocation hearing; and (2) record contained no evidence of defendant’s history of substance abuse.

Record contained sufficient evidence to support defendants’ drug conspiracy convictions, even though defendants argued that record showed existence of only buyer-seller relationship among three individuals. Record showed that: (1) two defendants had long-term relationship in which one defendant on numerous occasions sold and fronted large amounts of cocaine to other defendant; and (2) both defendants occasionally cooperated with each other where one defendant negotiated drug deal while other defendant took delivery of drugs, and where both defendants checked quality of drugs and used same vehicle to transport drugs. Fact that one defendant did not trust other defendant did not require different result. Also, jury could find existence of second drug conspiracy concerning one defendant and third defendant based on same shared cooperation in drugs sales and drug processing, and that existence of second drug conspiracy did not preclude jury from finding that all three defendants shared common objective for larger drug conspiracy.

Record contained sufficient evidence to support imposition of life sentence under 21 USC section 840(b)(1)(B), after finding that heroin supplied by defendant resulted in death of individual who eventually ingested said heroin. Medical expert testified that victim died of acute heroin intoxication, and another witness testified that he had overdosed on same batch of heroin. Also, jury could find that heroin supplied by defendant was “but-for” cause of victim’s death, where third-party traced defendant’s sale of heroin to victim’s receipt of said heroin, and where victim received said heroin at time of day that was consistent with victim’s time of death. Ct. rejected defendant’s contention that instant “death results” enhancement also required govt. to establish that victim’s death was reasonably foreseeable result of defendant’s drug dealing. Also, Dist. Ct. could properly exclude defendant’s proffered evidence of alternative heroin source, where: (1) defendant could only show that victim told another individual that he had another heroin source; and (2) defendant could not put time frame on victim’s alleged statement. Too, fact that surveillance photograph was improperly given to jury during its deliberations did not require that Dist. Ct. grant defendant’s motion for mistrial, where it was unclear that jury would recognize import of photograph, or that photograph would play any role in jury’s deliberations.

In prosecution on drug conspiracy charges, Dist. Ct. did not err in denying defendant’s motion to suppress evidence obtained as result of traffic stop, where said stop was based on belief that defendant had been speeding at time of stop. Record showed that arresting officer had clocked defendant traveling at 72 m.p.h. in 70 m.p.h. zone, and thus probable cause existed to effectuate instant traffic stop. Fact that another officer clocked defendant at between 70 and 71 m.p.h. did not require different result. Also, Dist. Ct. did not err in admitting informant’s recorded statement that included statements of defendant and others, where informant’s statements provided context for statements and actions of defendant and others.