Criminal Law

In prosecution on charge of illegal reentry into U.S. after having been deported, Dist. Ct. did not err in denying defendant’s motion to suppress information related to his identity/illegal status, where said information was discovered during traffic stop of vehicle in which defendant was passenger. While defendant argued that said information should have been suppressed because police lacked probable cause to stop said vehicle, Ct. found that defendant’s identity evidence was admissible even if evidence surrounding traffic stop was suppressed, since govt. sought only to use defendant’s identity from traffic stop, which could be learned outside context of traffic stop. Moreover, were defendant to be released, police immediately had probable cause to arrest him based on their knowledge of his identity and immigration status. Ct. also found that defendant’s prior aggravated robbery conviction supported Dist. Ct.’s imposition of 16-level enhancement under section 2L1.2(b)(1)(A)(ii) of USSG for purposes of sentencing defendant to 48-month term of incarceration.

In prosecution on drug distribution charges, where defendant pleaded guilty to simultaneous possession of two different illegal drugs, defendant waived claim that his sentence violated Double Jeopardy Clause (because he was punished twice for same offense), where defendant failed to raise said issue in pre-trial motion. Ct. further rejected on plain error standard defendant’s argument that his guilty plea must be vacated because he was unaware of instant Double Jeopardy Clause issue at time he entered into guilty plea, since: (1) seven other Courts of Appeal have found that simultaneous possession of two different drugs was two separate crimes, with no other Courts of Appeal holding otherwise; and (2) defendant could not establish that it was plain error to reject his claim under instant established case law.

Defendant waived his issue on appeal regarding Dist. Ct.’s imposition of 24-month term of incarceration on charge of illegal reentry into U.S. after having been deported, even through defendant argued that Dist. Ct. erred in making guideline calculation and in imposing eight-level enhancement arising out of his prior conviction that was deemed to be aggravated felony. Defendant acknowledged at guilty plea hearing Dist. Ct.’s guideline calculation and registered no objection to said calculation in his sentencing memorandum. Moreover, Dist. Ct. specifically asked defendant whether he had objection to calculation of base level offense or to imposition of instant enhancement and defendant’s counsel said “no.” Defendant also registered no objection to enhancement in his written plea agreement.

Record contained sufficient evidence to support defendant-physician’s conviction on charge that defendant violated Anti-Kickback Statute (42 USC section 1320a-7b(b)) by receiving illegal remuneration in exchange for referring patient to specific hospital. Record showed that defendant: (1) had signed teaching contract with said hospital in which he had essentially received $2,000 per month without performing majority of services called for in contract, while defendant had referred patients to said hospital; and (2) had admitted that teaching contract turned into payment for said referral of his patients. Ct. rejected defendant’s claim that his teaching contract fell within safe harbor provisions of Ant-Kickback Statute, since there was evidence that arrangement between defendant and hospital took into account volume or value of defendant’s referrals. Also, Dist. Ct. did not err in admitting testimony of govt. expert, who stated that yearly teaching stipends typically ranged between $400 to $2,000, since record showed that said expert had extensive experience in relevant podiatry field, which was sufficient to allow admission of his opinions, even in absence of any empirical data.

In prosecution on drug distribution charge, Dist. Ct. did not abuse its discretion in admitting wiretapped conversations defendant had with third-party that gave details surrounding drug transaction at issue in charged offense. While defendant argued that said admission violated hearsay rule with respect to third-party’s statements, Dist. Ct. could properly admit said wiretapped statements, since: (1) third-party’s statements gave context to defendant’s admissions made in wiretapped conversations and were not admitted to establish truth of third-party’s statements; and (2) without third-party’s statements, defendant’s statements would have been unintelligible. Also, Dist. Ct.’s did not err in sentencing defendant to 210-month term of incarceration, even though said sentence was enhanced by fact that defendant qualified as career offender under Section 4B1.1 of Sentencing Guidelines. Defendant’s prior Illinois conviction for aggravated battery of officer was qualifying “crime of violence,” where uncontested findings in presentence report indicated that defendant was convicted under aggravated battery statute’s bodily harm clause.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his drug conspiracy convictions stemming from police sting operation that called on defendant and others to rob non-existent drug stash house. While defendant argued that his trial counsel was ineffective for failing to object to govt. motion in limine to preclude defendant from raising any entrapment defense, defendant failed to show that any objection would have had merit, where: (1) although defendant had claimed that he was derivatively induced to commit charged offenses by co-defendant who had been entrapped by police agent, record showed that different co-defendant who had not been entrapped by anyone had actually recruited defendant to engage in said robbery. Moreover, defendant failed to show in his alternative claim that police agent subjected him to unlawful inducement to commit charged offenses, where said agent, at most, gave defendant opportunity to commit said robbery on its customary terms.

Dist. Ct. did not err in sentencing defendant to 110-month term of incarceration on unlawful possession of firearm charge, after finding that defendant qualified as armed career offender as defined under section 924(e) of Armed Career Criminal Act, based on fact that defendant had three qualifying felony convictions. Dist. Ct. could properly classify defendant’s Indiana Class C felony battery conviction as qualifying “violent felony” under elements clause of section 924(e)(2)(B)(i), where instant Indiana conviction has “serious bodily injury” as element of offense. Ct. rejected defendant’s contention that no state crime can be violent felony unless person intends not only use of force but also intends injury caused by said force.