Criminal Law

Dist. Ct. did not err in granting defendant-employer’s motion for summary judgment in ADEA action by plaintiff alleging that he was terminated on account of his age, where plaintiff failed to show that defendant had requisite 20 employees during relevant time period so as to establish defendant as covered employer under ADEA. While defendant had 17 employees plus three other individuals who performed occasional services for defendant but were employed by separate business that had common ownership with defendant, plaintiff could not count said individuals as defendant’s employees under economic realities test, where: (1) record showed that defendant lacked any control over said individuals; (2) defendant did not instruct said individuals with respect to their job tasks performed on behalf of defendant; and (3) defendant did not pay said individuals for job tasks performed on behalf of defendant. Also, plaintiff could not count all employees from second company that employed said individuals under any indirect employment theory since, although there was certain degree of integration between both companies, defendant and second company were separate entities that observed corporate formalities such as separate boards, separate invoices, separate bank accounts, separate management, and separate tax returns.

Dist. Ct. did not err in sentencing defendant to 235-month term of incarceration on drug distribution charge, even though defendant argued that Dist. Ct. violated his due process rights by: (1) holding telephone conference with defense counsel and prosecutor regarding procedures that would be used at future sentencing hearing; and (2) issuing short opinion seven days prior to sentencing hearing indicating that operative guideline range would be 235 to 293 months. While defendant argued that said proceedings were improper because he was not present at time they occurred, Ct. found that no error occurred, where defendant’s counsel was present at telephone conference where only procedural matters were discussed, and where short opinion provided defendant with opportunity to prepare for arguments at actual sentencing hearing.

Record contained sufficient evidence to support two defendants’ convictions on drug conspiracy charge based on evidence gathered through controlled drug buys and wiretapped phone calls. Record showed that both defendants shared customers, drug supplier and heroin while making drug sales. However, Ct. vacated third defendant’s conspiracy conviction, where Dist. Ct. improperly refused said defendant’s request to instruct jury about difference between conspiracy and mere buyer-seller relationship, since evidence suggested that said defendant was mere customer of co-defendants. Record showed that: (1) said defendant, who purchased drugs from both co-defendants, was not under control of either co-defendant; (2) said defendant did not have common drug sales goals with either co-defendant; and (3) record failed to contain evidence that said defendant purchased heroin on credit from either co-defendant or agreed with co-defendants to look for customers. Fact that record contained some evidence suggesting presence of conspiracy such as said defendant’s single sale of drugs to common customer of conspiracy did not require different result.

Dist. Ct. erred in sentencing defendant to 71-month term of incarceration on charges of impeding IRS from collecting taxes and three counts of presenting fictitious financial instruments with intent to defraud. Under section 2T1.1(c)(1) of USSG, relevant attempted loss calculation was equivalent to $5.3 million tax lien that IRS imposed on defendant’s properties, rather that $14 million calculated by Dist. Ct., which was total amount of fraudulent checks that defendant had passed to IRS. Thus, new sentencing hearing was required because instant miscalculation of loss resulted in Dist. Ct. using wrong/inflated base offense level. However, Ct. rejected defendant’s contention that tax loss calculation could not include tax penalties and interest, where, as here, Dist. Ct. found beyond reasonable doubt that defendant had intended to defraud IRS by willfully failing to pay taxes that he owed to IRS.