Criminal Law

Dist. Ct. erred in sentencing defendant to 210-month term of incarceration on drug manufacturing and distribution charges, where said sentence was based in part on finding that defendant qualified for career offender treatment under section 4B1.1 of USSG due to his prior Illinois conviction on charge of attempted procurement of anhydrous ammonia with intent that it be used to manufacture methamphetamine. Said conviction did not qualify as “controlled substance offense” under career offender provisions and guidelines since anhydrous ammonia is not listed as covered chemical and is not itself controlled substance. Moreover, remand was required since Dist. Ct. failed to indicate that he would have imposed same sentence absent career offender enhancement.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his 2001 murder conviction on ground that prosecutor committed Brady violation by withholding evidence from unidentified gang members who indicated that someone else was shooter of murder victim, where Dist. Ct. could properly find that defendant had procedurally defaulted said claim after state court had found that defendant had failed to raise instant Brady violation in his first post-conviction petition. Ct. rejected defendant’s argument that he actually raised Brady claim in first post-conviction petition where defendant merely argued that he was actually innocent based on newly discovered information provided by instant unknown gang members. Moreover, defendant failed to present sufficient evidence of actual innocence to excuse instant procedural default, where: (1) defendant failed to provide identity of individuals naming someone else as shooter so that such information could be verified; and (2) evidence against defendant at trial was strong where five individuals identified him as shooter.

Dist. Ct. did not err in denying defendant’s petition for writ of coram nobis that challenged govt.’s attempt to enforce prior unpaid $713,400 restitution order that had been entered in defendant’s conviction on mail fraud charge. While defendant argued that he was entitled to such relief because new evidence indicated that third-party lenders identified as victims in defendant’s mail fraud scheme were not actually entitled to said restitution, coram nobis relief was not appropriate, since defendant’s claim did not qualify as error of “most fundamental character” where defendant’s claim would not invalidate his mail fraud conviction. Moreover, defendant failed to show existence of any error with respect to restitution order, where defendant admitted in his plea agreement that instant third-party lenders actually relied on fraudulent mortgage applications that defendant had prepared.

Dist. Ct. did not err in denying defendant’s motion to reduce his sentence under 18 USC section 3582(c)(2) based on retroactive 2014 amendment to drug-quantity sentencing guideline. Record showed that retroactive sentencing guideline required that defendant’s offense level be reduced from 32 to 30, and defendant failed to show that his “bottom-line, final [sentencing] range” would have been lower had retroactive sentencing guideline been in existence at time of his original sentence, since: (1) Dist. Ct. had similarly reduced his offense level at original sentencing hearing from 32 to 30 under section 2D1.1(a)(5) of USSG; and (2) reduction under 2D1-1(a)(5) would not have been available to defendant under retroactive guideline.

Ct. of Appeals granted motion by defendant’s appellate counsel to withdraw as counsel for defendant, after counsel concluded that defendant’s appeal was frivolous. Record showed that defendant admitted to violating conditions of his original supervised release by failing to register as sex offender and neither challenged propriety of revocation order nor asserted substantial and complex grounds in mitigation. Moreover, Dist. Ct.’s 12-month term of re-imprisonment as sentence for instant violation was within applicable guidelines, given defendant’s Grade B violation and his Category III criminal history. Ct. further noted that defendant would be free to seek modification of any term of supervised release under 18 USC section 3583(e)(2) once he begins serving term of supervised release.

In prosecution on unlawful possession of firearms charge, Dist. Ct. did not err in denying defendant’s motion to suppress gun seized from defendant as passenger in parked car under circumstance where: (1) two squad cars had parked along side of and in rear of instant car that had been parked illegally on street; and (2) officer shining light through car’s window revealed that defendant was in back seat attempting to hide gun. While defendant argued that police lacked probable cause to issue any ticket for parking violation because statutory exception to parking violation allowed car’s occupants to park in said spot to discharge cargo or passengers and police had not observed car long enough to determine whether occupants came within statutory exception, Dist. Ct. could properly find that brief look by officers was enough to support probable cause of ordinance violation, where no one was in driver’s seat, car doors were closed, and no one was getting out of car. Fact that officers used two cars and bright lights to enforce fine-only ordinance did not require different result, and police need no reason to approach parked car on public street and look inside windows. Ct. further rejected defendant’s suggestion that suppression of evidence was appropriate because police had used excessive force that included request for car’s occupants to put their hands where they could be seen, since defendant’s only remedy under such circumstances is potential claim for money damages and not suppression of evidence, where use of reasonable force would have produced discovery of same evidence. (Dissent filed.)

Record contained sufficient evidence to support defendant’s conviction of charge of violating FDA by operating unregistered pharmaceutical manufacturing business with intent to defraud FDA. Record showed that defendant was aware of requirements of FDA, and yet took steps to avoid it by manufacturing and selling various prescription drugs out of his home by obtaining raw ingredients from overseas and generating labels that contain “for research only” on drugs that were in fact sold by defendant for human consumption. Moreover, defendant’s motion to suppress evidence seized from his home was properly denied, where: (1) affidavit supporting warrant contained detailed description of hundreds of vials of white powder found in intercepted packages that suggested that defendant was operating HGH-trafficking business; (2) officer asserted that powder resembled HGH that had been purchased in prior investigations; (3) anonymous tip, albeit 3 months old, reported that defendant was operating online pharmacy; and (4) officer discovered defendant’s website, which indicated that defendant had engaged in illegal distribution of HGH and prescription drugs. Moreover, Dist. Ct. could properly reject defendant’s request for Franks hearing to test veracity of officer’s allegations contained in warrant application, where alleged false representation by officer that it would take six (as opposed to three) weeks to determine identity of white powder was not material to probable cause determination.

In prosecution on charge of conspiracy to distribute over 280 grams of crack cocaine, Dist. Ct. did not err in admitting govt.’s summary exhibits of various money transactions taken from MoneyGram and Western Union records that govt. claimed showed existence of various wire transfers between defendants and others involved in charged conspiracy. While defendants argued that govt. failed to meet requirements of Rule 803(6) because third-party customers created instant wire transfers, instant records were properly admitted, even though neither Western Union nor MoneyGram required identification from recipients of wire transfers less than $1,000, since other individuals testified about their recollections of actually conducting transactions reflected in records. Moreover, admission of said records did not violate Confrontation Clause since said records did not contain testimonial evidence. Fact that witnesses could not recall every transaction reflected in records did not preclude their admission. Also, Dist. Ct. did not err in denying defendant’s motion for new trial based on claim that govt. violated Brady, 373 US 83, where prosecutor: (1) misled defense counsel about who would be best witness to impeach govt.’s confidential informant; and (2) failed to disclose statements made by defendants involving threats to witnesses that govt. intended to use at trial. Govt. is not obligated to assist defense counsel in crafting trial strategy and disclosures required under Brady concern only exculpatory evidence, and defendant’s statements involving threats made to witnesses were not exculpatory in nature.

Dist. Ct. committed procedural error when sentencing defendant to 36-month term of incarceration on bank fraud charge stemming from defendant’s scheme with others to obtain mortgages by using straw home buyers who made misrepresentations about employment on loan applications, where Dist. Ct. failed to make specific factual findings to support its conclusion that defendant was responsible for eighteen fraudulent transactions, that defendant’s conduct involved ten or more victims or that defendant’s conduct resulted in losses between $2.5 and $7 million. Fact that Dist. Ct. indicated that defendant was responsible for at least eight fraudulent transactions was insufficient. Ct. also noted that record lacked factual findings to support Dist. Ct.’s $3,760,859 restitution award.