Criminal Law

Dist. Ct. did not err in denying defendant’s habeas petition challenging his sentence as armed career offender with respect to his conviction on conspiracy to commit Hobbs Act robbery, even though defendant argued that his conspiracy conviction could only be viewed as crime of violence under residual clause of Armed Career Criminal Act, which was found to be unconstitutional under Johnson, 135 S.Ct. 2551. Record showed that defendant had admitted to substantive drug offense during plea colloquy on Hobbs Act conspiracy charge, which made him eligible for armed career sentencing treatment under 18 USC section 924(c) regardless of whether Hobbs Act conspiracy qualified as crime of violence. Moreover, defendant’s guilty plea served to preclude instant collateral attack.

Record contained sufficient evidence to support defendant’s conviction on drug conspiracy and related firearm charges arising out of incident in which govt. informant arranged to sell 20 kilograms of powder cocaine to defendant, where, at planned rendezvous outside car wash, police seized defendant and discovered bags of cash totaling $353,443 in his car, as well as two loaded firearms. Dist. Ct. was entitled to find that cash found in defendant’s car was intended for purchase of drugs from informant, even though said cash represented only 90.6 percent of agreed-upon price, especially where record contained no evidence that defendant could have obtained such amount of cash through lawful means. Moreover, Dist. Ct. could rely on statements made by two drug brokers regarding subject transaction, as well as other drugs sales involving defendant, where evidence indicated that brokers qualified as co-conspirators regarding larger agreement to obtain and resell drugs.

Record contained sufficient evidence to support jury’s guilty verdict on charges of mail and wire fraud arising out of defendant’s misrepresentations about investment opportunity that proved to be nothing more than Ponzi scheme. While govt. did not allege that defendant had knowingly participated in Ponzi scheme with others, defendant’s misrepresentations to potential investors in scheme regarding fact that he had experience in managing investments and that he and his family had invested in Turkish bonds, which had been focus of said scheme, were sufficiently material so as to support instant mail and wire fraud convictions. Ct. rejected defendant’s argument that his representations amounted to nothing more than non-actionable puffery, since Ct. found that defendant’s false claims about his investments in said bonds were factual misrepresentations and not exaggerated opinions. Dist. Ct. erred, though, in using full amount of victims’ $3.3 million losses to both enhance defendant’s sentence and impose restitution order, where Dist. Ct. had failed to make determination as to whether defendant had proximately caused full amount of said losses. (Partial dissent filed.)

Record failed to support defendants’ guilty verdicts in bench trial on charge that defendants (company and company’s supervisor) violated 18 USC section 1115, which criminally penalizes maritime negligence that results in death, when deck hand on barge operated by defendants died after clarified slurry oil exploded on said barge. Record showed that: (1) prior to instant trial, govt. had filed civil lawsuit against defendant-company, based on same theory that company’s supervisor had directed deck hand to warm pump through use of torch, whose flame caused instant explosion and deck hand’s death; and (2) bench trial in civil lawsuit resulted in finding that govt. had not proved its claim by preponderance of evidence. As such, govt. was collaterally estopped from bringing instant criminal action due to finding in civil lawsuit. Fact that prior lawsuit had been filed only against defendant-company did not preclude defendant-supervisor from prevailing on collateral estoppel issue in instant criminal action, where company and supervisor were in “contractual relationship” in that company had been sued in civil action based on allegations that company was vicariously liable for supervisor’s actions.

In prosecution on various firearm charges, defendant failed to establish that his trial counsel labored under actual conflict of interest, even though trial counsel was subject to two criminal investigations that gave him potential incentive to curry favor with govt. Defendant waived any conflict arising out of first investigation that involved trial counsel’s contempt proceeding, where defendant expressly waived any conflict and consented to counsel’s continued representation, after being questioned about said conflict by Dist. Ct. Moreover, defendant failed to establish any conflict of interest arising out of second, unrelated criminal investigation against trial counsel, where: (1) said investigation did not come to light until after defendant’s conviction and sentence; and (2) trial counsel immediately withdrew from representing defendant at time investigation came to light, which allowed defendant to obtain substitute counsel, who represented defendant on his appeal. Also, Dist. Ct. did not err in admitting certain inculpatory text messages from defendant’s cell-phones and posts from his Facebook page, where said text messages were comprised of his own statements, which would not violate hearsay rule. Furthermore, text messages defendant received from others were properly admitted for purpose of giving context to defendant’s own text messages.