Criminal Law

Dist. Ct. did not err in sentencing defendant to 35-month term of incarceration for violation of his supervised release, even though defendant had received original sentence of 174 days’ time served and 10 years supervised release on drug conspiracy charge. Record showed that said violation arose out of defendant’s failed drug test and admission of drug use. While recommended sentencing range for instant violation was 8 to 14 months, Dist. Ct. could properly impose instant sentence, where it was based, in part, on need to avoid disparity with substantial sentences of defendant’s co-defendants and to provide graduated punishment for defendant’s running violations of law. Ct. rejected defendant’s contention that Dist. Ct. erred in comparing his sentence to sentences received by his co-defendants as opposed to others who had supervised release revoked because of failed drug test, since defendant’s original sentence was less than five percent of statutory minimum, and, as such, defendant could not compare himself to his proposed comparatives.

Record contained sufficient evidence to support defendant’s guilty verdict on charges of possessing, receiving and distributing child pornography. While defendant claimed that statutory definition of “distribute” did not apply to facts of instant case, where programs on defendant’s computer downloaded child pornography to shared folder from which other users could download files, jury could properly have found that defendant was nevertheless aware that others were actually accessing child pornography on his computer where defendant had sophisticated understanding of programs on his computer. Moreover, individual who passively allows others to download files stored on his computer has “distributed” said files within meaning of 18 USC section 2242. Dist. Ct. also did not abuse its discretion in denying defendant’s motion to substitute counsel that was made five days before start of trial, where Dist. Ct. asked defendant for reasons for said motion, and where Dist. Ct. could properly reject defendant’s claim that there was breakdown in communications between him and current counsel, who was actually communicating with defendant and who had taken steps to adequately defend defendant. Also, Dist. Ct. did not commit reversible err in entering forfeiture order even though Dist. Ct. had failed to question either party about whether it or he wanted jury to resolve forfeiture issue, since defendant did not cite to said error at trial, and since no reasonable jury could find there was no sufficient nexus between defendant’s computer and charged offense.

Dist. Ct. did not commit plain error in sentencing defendant to 84-month term of incarceration on drug distribution charge, even though Dist. Ct. did not specify how much it departed from applicable 108 to 135-month guideline range due to govt.’s filing of motion under section 5K1.1 of USSG for downward departure due to defendant’s substantial assistance to govt. Calculation of traditional departures from guideline range is no longer required, and Dist. Ct. was only required to determine applicable guideline range and arrive at reasonable sentence after weighing sentencing factors in section 3553(a). As such, Dist. Ct. need not “calculate,” but must only “consider” separate reductions based on traditional departures before considering other section 3553(a) factors that could raise or lower sentence, which Dist. Ct. did prior to imposing instant sentence. Ct. rejected defendant’s contention that Dist. Ct. was required to articulate 3-step process set forth in section 1.1B1 of USSG when imposing instant sentence.

In prosecution on drug distribution charges, Dist. Ct. did not err in failing to further curb certain references by witnesses to term “gang” and/or “Hobo gang.” Although there is substantial risk of unfair prejudice attached to gang affiliation evidence, no error occurred here, where govt. introduced no direct evidence of defendant’s gang membership or evidence of Hobo gang itself. Moreover, although Dist. Ct. allowed prosecutor to cross-examine witness about defendant’s relationship to others who were in gang, response of witness did not show common gang membership with respect to defendant and said individuals, and prosecutor’s question was otherwise intended to establish witness’ bias, which was proper subject matter for prosecutor to explore. Dist. Ct. also did not err in dismissing only one juror who admitted to seeing media account of instant trial that identified defendant and others as members of Hobo gang. Fact that Dist. Ct. admonished jurors only three times during trial to avoid media or extra-record material and did not repeat admonition after juror was excused did not require different result, where Dist. Ct. reminded jurors at end of trial to consider only evidence in record, and where there was consensus among counsel during trial that Dist. Ct.’s questioning of jurors about instant online article was sufficient.

Plaintiffs-unsuccessful applicants to National Organic Standards Bd. lacked standing to challenge legitimacy of appointment of two members of said Bd., since unseating said members would not require that plaintiffs be put on said Bd. Moreover, plaintiffs could not establish any personal injury arising out of said members' presence on said Bd., and plaintiffs could not otherwise established that presence of said members “robbed them” of right to be considered for appointment to Bd., where Secretary of Agriculture had no duty to evaluate any particular applicant. As such, Ct. of Appeals could not direct Secretary to either appoint plaintiffs to Bd., give them favorable or any attention on their applications or put them into pool from which they could be selected as Bd. members.

Dist. Ct. erred in sentencing defendant to 21-month term of incarceration on unlawful possession of firearm charge, where Dist. Ct. based said sentence, in part, on finding that defendant’s offense level was 15, after overruling govt.’s contention that said level should be 20 based on defendant’s prior Illinois second degree murder conviction, which govt. claimed was crime of violence. Remand for new sentence was required, since: (1) Illinois second degree murder conviction is crime of violence since, among other things, said offense required finding beyond reasonable doubt that offender acted with intent or knowledge that his or her actions would cause death; and (2) Dist. Ct. made no indication that it would have imposed same sentence if higher offense level applied to defendant.

Dist. Ct. did not err in sentencing defendants to 36-month and 21-month terms of incarceration on wire fraud charges based on defendants’ submission of false mortgage applications filed by unqualified buyers. While defendants challenged Dist. Ct.’s calculation of total loss amount of $1,835,861 that included $1.3 million loss associated with applications sent to Bank of America, where said Bank was complicit in said fraud, Bank’s complicity in scheme was irrelevant in intended loss calculation, which looks to amount of money defendants placed at risk when perpetrating fraud. As such, Dist. Ct. could properly include in intended loss figure $1.3 million of Bank of America’s money that defendants placed at risk through their submission of loan applications to said Bank. Also, Dist. Ct. did not err in denying one defendant’s request for offense-level reduction based on her alleged minor role in scheme, where record showed said defendant’s role was necessary to functioning of scheme.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress gun seized from defendant’s home pursuant to search warrant, where police sought said warrant on suspicion that defendant’s wife was dealing drugs. While officer conducting search presented wife with wrong search warrant, said failure to tender correct warrant did not render said search illegal, since correct warrant existed at time of search and officer was not required to present wife with any warrant. Also, while govt. may not have presented evidence regarding credibility of informant, who provided tip of wife’s drug activities, instant warrant was nevertheless supported by probable cause, where officers inspected garbage from defendant’s home on two occasions one week apart and found presence of cannabis in garbage on each occasion.