Criminal Law

Dist. Ct. did not err in denying defendant’s habeas petition challenging his armed habitual criminal conviction, which was based on his possession of firearm during incident which victim was murdered, as well as his prior felony convictions, where defendant argued that govt. was collaterally estopped from prosecuting him as armed habitual criminal due to his acquittal on murder charge stemming from same incident. Collateral estoppel did not apply so as to preclude instant subsequent prosecution on armed habitual criminal charge, since factual issues necessarily decided at murder trial were not identical to any pertinent fact at issue in armed habitual criminal trial, since jury in murder trial only found that defendant (as opposed to others) did not personally discharge firearm that proximately caused death of victim and did not resolve question as to whether defendant had merely possessed firearm during incident that was focus of armed habitual criminal charge.

Ct. of Appeals remanded for Dist. Ct.’s reconsideration of defendant’s 444-month sentence on charges of using firearm during crime of violence and other related crimes, where instant sentence was based on Dist. Ct.’s belief that it could not consider nature of mandatory minimum sentence for defendant’s section 924(c) firearm conviction when determining defendant’s sentence on his other related convictions. Dist. Ct.’s belief ran contrary to U.S. Supreme Ct. decision in Dean, 137 S. Ct. 1170, and thus limited remand was required to allow Dist. Ct. to determine whether it would have imposed same sentence knowing that it could consider mandatory sentence for section 924(c) conviction when deciding sentence for other convictions. Defendant, though, had argued for full resentencing on remand.

Record contained sufficient evidence to support jury’s guilty verdict on charge of possession of firearm in furtherance of drug trafficking crime under 18 USC section 924(c)(1)(A) under circumstances, where: (1) defendant offered to sell marijuana to informant at time when informant had already brokered purchase of firearm from defendant; and (2) informant had accepted defendant’s offer and purchased $40 worth of marijuana contemporaneously with firearm purchase. While defendant argued that record lacked evidence tying firearm with marijuana purchase so as to demonstrate that firearm actually furthered marijuana sale, record contained sufficient evidence of said linkage, where it was opportunity to purchase firearm that brought informant to defendant and made possible secondary sale of marijuana to informant.

Dist. Ct. erred in denying defendant’s habeas petition challenging his 24-year term of incarceration on charge that defendant-police officer deprived victim of her civil rights under color of law (18 USC section 242), arising out of defendant’s sexual assault of victim during defendant’s investigation of victim’s report of neighborhood dispute. Said sentence was based on jury’s finding that defendant’s conduct amounted to “aggravated sexual abuse,” that in turn increased maximum penalty for said offense from one year to life in prison. Moreover, defendant’s trial and appellate counsel were ineffective for failing to challenge govt.’s proposed instruction that improperly allowed jury to find that defendant had engaged in aggravated sexual abuse through use of psychological coercion or through implied threat based on defendant’s physical size or his status as police officer, rather than through use of physical force, as required for said finding under Boyles, 57 F.3d 535.

In prosecution on drug possession and firearm charges, Dist. Ct. did not err in denying defendant’s motion to suppress drugs and firearm seized from defendant’s home pursuant to issuance of search warrant, even though defendant argued that affidavit supporting issuance of warrant did not establish probable cause because there were no statements that established reliability of information supplied by confidential informant, who otherwise could not name defendant as culprit. Police deputies corroborated information supplied by informant by conducting their own surveillance of defendant’s home and executing their own controlled buy that involved defendant. Also, properly executed controlled drug buy can establish probable cause even when tip that prompted it might not have been credible.