Criminal Law

Dist. Ct. erred in sentencing defendant to 120-month term of incarceration on firearm charge, where Dist. Ct. denied defendant’s request to have his sentence be served concurrently with yet-to-be determined state-court sentence, since Dist. Ct. based said denial on its belief that it could not require that defendant’s federal sentence be run concurrently with his yet-to-be determined state sentence. Under Setser, 566 U.S. 231, Dist. Ct. is empowered to order federal sentence to run concurrently with yet-to-be determined state sentence, and thus, remand was required for new sentencing hearing, since: (1) Dist. Ct. failed to acknowledge that it had discretion to grant defendant’s request for concurrent treatment; and (2) Dist. Ct. initially indicated that it did not object to defendant’s request for concurrent treatment of his federal and state sentence.

In prosecution on drug distribution charge, Dist. Ct. did not err in granting defendant’s motion to suppress large quantity of methamphetamine and cash that was seized during traffic strop from vehicle in which defendant was passenger, where said seizure came more than 33 minutes after initial stop regarding illegal lane usage for which officer intended to write warning ticket. While officer had lawful basis for initiating instant stop, instant seizure became unlawful where, as here, stop was prolonged beyond time reasonably required to complete initial mission of stop. Although govt. agreed that officer extended traffic stop beyond time necessary to issue traffic citation, especially where instant delay was caused by officer’s inability to summon sniff dog on more timely basis, Ct. rejected govt.’s claim that officer had reasonable suspicion to extend stop merely because: (1) officer perceived that defendant and driver of vehicle seemed nervous; (2) both individuals came from greater Los Angeles, which officer believed was major narcotics distribution center; (3) both individuals presented conflicting travel plans; and (4) vehicle contained multiple air fresheners. Fact that driver gave consent to search vehicle did not require different result where consent was given during extended stop.

Dist. Ct. erred in denying defendant’s habeas petition challenging his sexual assault convictions, in part, on ground that Wisc. trial court improperly denied his motion to proceed pro se, which was made on start date of trial. Trial court’s rationale for denying defendant’s motion to proceed pro se, i.e., that defendant was unfamiliar with rules of evidence, that he was ill-equipped to deal with govt.’s DNA evidence, and that it would be “problematic” for defendant to cross-examine govt. witnesses, did not comport with ruling in Faretta, 422 U.S. 806, since trial court’s concerns that defendant was not competent to represent himself based upon perception that defendant lacked education, experience or legal know-how, was not pertinent in resolving defendant’s request to proceed pro se, since only relevant inquiry is whether defendant was mentally competent to stand trial. Moreover, defendant’s mental competence to stand trial was established in record, and Ct. rejected state’s argument that defendant’s display of irrational and disruptive behavior justified instant denial of his request to proceed pro se, where said conduct occurred after trial court had denied said request. Also, trial court should have granted defendant’s request to proceed pro se, but then could have terminated it if it ever became clear that defendant sought to use courtroom for deliberate disruption of trial.

Record contained sufficient evidence to support defendant’s conviction on four counts of using facility of interstate commerce with intent that murder-for-hire of two individuals be committed. Instant charge arose out of series of conversations defendant had with informant, during which defendant offered to pay informant $7,500 to kill two individuals who had agreed to become govt. witnesses in murder trial of defendant’s son. While record showed that informant had assisted govt. in several other prosecutions, jury could have viewed his testimony as credible in recounting conversations between himself and defendant. Moreover, jury, in listening to recorded conversations involving defendant, informant and individual posing as hit-man could properly find that defendant possessed requisite intent to pay informant to murder said witnesses. Also, Ct. rejected defendant’s contention that: (1) entrapment instruction was erroneous, where instruction fairly captured distinction between private vigilantism (which provides no defense for defendant) and entrapment by state agents; and (2) govt. was required to prove existence of actual murder-for-hire agreement.

Dist. Ct. did not err in sentencing defendant to 108-month term of incarceration on charges of dealing firearms without license and distributing cocaine, even though Dist. Ct. applied 4-level enhancement under section 2K2.1(b)(5) of USSG for trafficking firearms and 4-level enhancement under section 2K2.1(b)(6)(B) of USSG for transferring firearm with knowledge that it would be used or possessed in connection with another felony offense. While defendant argued that Dist. Ct.’s simultaneous application of both enhancements constituted impermissible double counting, double counting is permitted unless text of sentencing guidelines expressly prohibits it, and instant guidelines fell short of expressly prohibiting simultaneous application of both enhancements.

Dist. Ct. did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea to wire fraud and tax evasion charges, even though defendant contended that his trial counsel was ineffective for failing to thoroughly investigate witness statements and other documents supporting govt.’s case prior to negotiating and recommending to defendant instant plea agreement. While failure of counsel to thoroughly investigate case prior to negotiating plea agreement can constitute ineffective assistance of counsel, defendant failed to establish that any failure to do so was prejudicial, where record supported finding that by time defendant had hired his trial counsel, defendant had already decided to plead guilty to instant charges, and that defendant had hired trial counsel to negotiate best possible plea agreement, as opposed to taking case to trial. Moreover, trial counsel could properly decide not to conduct in-depth investigation into govt.’s case against defendant, where trial counsel could properly believe that said investigation might cause govt. to rethink its position under circumstances where said investigation might uncover evidence that would support filing additional charges against defendant.

Record contained sufficient evidence to support defendant’s conviction on health care fraud, even though none of govt.’s witnesses identified defendant in court as culprit of said fraud. In-court identification of defendant is not required if defendant’s identity as culprit can be inferred from evidence admitted into record, and said evidence was sufficient to establish defendant’s identity as culprit, where: (1) defendant had same name as person who was indicted; (2) witnesses testified about their familiarity with “Angela Armenta,” and no one suggested that person they were talking about was not in courtroom; and (3) defendant stipulated to information contained in her resume that indicated that she worked for company at issue in instant prosecution, and that she worked in same position as individual who perpetrated fraud. Moreover, defendant’s counsel did not present any argument to jury that might have caused it to question his client’s identity as charged defendant. Also, Dist. Ct. could base imposition of obstruction of justice enhancement on defendant’s alteration of patient files during Medicare audit of defendant’s company.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his 171-month term of incarceration, even though defendant alleged that his trial counsel was ineffective for failing to object to Dist. Ct.’s consideration of fact that defendant had brandished firearm in violation of section 924(c)(1)(A) as sentencing factor as opposed to element of offense that required determination by jury. At time of sentencing hearing, Sup. Ct. decision in Harris, 535 U.S. 545 allowed Dist. Ct. to consider defendant’s brandishing of firearm as sentencing factor, even though Sup. Ct. in Alleyne, 568 U.S. 936, subsequently overruled Harris and found that brandishing of firearm is element of conduct criminalized by instant seven-year mandatory minimum sentence that must be determined by jury beyond reasonable doubt. Yet, defendant could not show that his counsel was ineffective for failing to object to Dist. Ct.’s resolution of brandishing of firearm issue, since counsel was not required to anticipate overturning of Harris. Also, claims of ineffective assistance of counsel cannot be resolved based on hindsight and assumption that existing precedent would be overruled.