Criminal Law

Dist. Ct. did not err in denying defendant’s motion to dismiss his charge of use of firearm in course of bank robbery under 18 USC section 924(c), even though defendant argued that federal bank robbery charge under 18 USC section 2113(a) was not “crime of violence” under section 924(c)(3)(A) because it could be committed through use of intimidation, as well as by force and violence. Under Armour, 840 F.3d 904, federal attempted bank robbery was crime of violence under elements clause of section 924(c), where Ct. in that case found intimidation meant threat of force. Ct. rejected defendant’s argument that bank robbery could not be crime of violence because said offense failed to require proof that robber intended to intimidate victim.

Record contained sufficient evidence to support defendant’s conviction under 18 USC section 1591 for sex trafficking of minor if done “in or affecting interstate or foreign commerce.” Record showed that defendant convinced 15-year-old girl to earn money as prostitute under circumstances where defendant had posted girl’s picture on Craigslist and twice tried to arrange rendezvous with clients and girl, but where clients had failed to show up for said scheduled encounters. Ct. rejected defendant’s argument that conviction under section 1591 required proof that minor actually engaged in “commercial sex act,” since all elements of offense had been satisfied at time defendant had recruited girl under plan to have her engage in commercial sex acts. Ct. further found that element requiring proof that defendant’s actions affected interstate commerce was satisfied when: (1) defendant posted girl’s picture on internet; and (2) defendant stipulated that instant Craigslist advertisement affected interstate commerce.

Record failed to contain sufficient evidence on charge of conspiracy to murder federal witness under 18 USC section 1512. Govt. was required to show that there was “reasonable likelihood” that murdered witness, who played role in defendant’s prior armed robbery, would have communicated with federal officers about underlying armed robbery, and Govt. failed to make such showing, where: (1) federal prosecutors rarely prosecuted individuals on instant armed robbery charge; and (2) record failed to show that federal officer assisted state prosecution on instant armed robbery charge in manner that would have involved interview with murdered witness. Fact that armed robbery had potential for charging three federal offenses, that FBI task force shared office building with local police, or that FBI provided technical forensic assistance to local officials on armed robbery incident did not require different result. Also, Dist. Ct. did not err in applying murder cross-reference under section 2K2.1(c)(1) of USSG when imposing life sentence on defendant’s felon-in-possession of firearm charge, where, although said sentence was significantly above guideline range, said sentence was supported by Dist. Ct.’s careful consideration of section 3553(a) sentencing factors that included defendant’s role in murder of witness and his recurrent violent behavior.

In prosecution on charge of attempt to entice minor to engage in sexual activity that arose of out sting operation, where adult police officer posed as 15-year old boy responding to defendant’s Craigslist advertisement, Dist. Ct. did not err in admitting officer’s testimony regarding meaning of term “candy” in subsequent email chain between defendant and officer. While defendant argued that said testimony constituted impermissible expert testimony under Rule 702 that was not based on reliable principles and methods, Dist. Ct. could properly find that said testimony qualified as permissible lay-opinion testimony that was based on officer’s perception of his email conversation with defendant. Also, officer could testify regarding key words in defendant’s Craigslist advertisement to show that defendant was really asking for underage individuals, since: (1) such testimony helped jury interpret said advertisement; (2) such testimony was permissible without providing scientific methodologies; and (3) officer’s testimony was based on his background knowledge of criminal activity on Craigslist and not on defendant’s mindset. Also, govt. could question defendant about his other uncharged emails indicating desire to interact with underage individuals to discredit notion raised by defendant that he had only wanted to interact with of-age individuals in subject Craigslist advertisement.

Dist. Ct. erred in sentencing defendant to 108-month term of incarceration on drug conspiracy charge, after Dist. Ct. determined that defendant qualified for negative treatment as career offender under section 4B1.1 based on at least two of his four prior drug-related convictions. While defendant’s 2000 conviction qualified, record failed to show that his 1994, 1995 or 1996 convictions qualified for said treatment, since: (1) govt. was required to show that defendant was still serving sentence on one of said convictions within 15 years of October 2013 commencement of charged offense; and (2) while prison records indicated that defendant was incarcerated in 2000 (for 2000 conviction), said records had failed to indicate that defendant had ever been incarcerated with respect to his 1994, 1995 or 1996 convictions by October of 1998 or that his parole as to any of these convictions had ever been revoked, so as to establish that he was incarcerated for any of these offenses by October of 1998. As such, since Dist. Ct. did not indicate whether it would have given same sentence with or without career offender finding, defendant was entitled to new sentencing hearing to allow Dist. Ct. to consider defendant’s sentence under correct guideline range without career offender finding.