Criminal Law

Defendant was entitled to new sentencing hearing on his drug distribution conviction, where Dist. Ct. imposed 108-month term of incarceration, as well as three-year term of supervised release. While Dist. Ct. provided sufficient justification to impose above guideline sentence, Dist. Ct. committed procedural error, when it orally stated that it intended to impose sentence that was 27 months above high end of guideline range, when instant sentence was actually 37 months above said guideline range. Also, remand was required with respect to imposition of term of supervised release, where Dist. Ct. had failed to provide any justification for imposition of non-mandatory conditions of supervised release or for length of term of supervised release.

In prosecution on drug distribution charges, Dist. Ct. did not err in denying defendant’s request for appointment of third expert witness for purpose of examining informant’s recording of drug transaction between defendant and informant. Dist. Ct. had granted defendant’s two prior requests for appointment of expert to examine said recording, and both experts found no relevant abnormality with respect to said recording. Moreover, defendant failed to present any evidence supporting his theory that recording had been tampered with or that software that govt. used to transfer recording to DVD contained flaw. Also, admission of instant DVD recording did not violate Best Evidence Rule, even though DVD constituted duplicate of original recording, since defendant failed in his burden to raise question regarding authenticity of original recording.

Defendant was entitled to new sentence hearing on drug distribution charge, where record showed that govt. had breached plea agreement requiring it to refrain from seeking departure from sentencing guideline and to recommend sentence within applicable Guideline range as determined by Dist. Ct. Record showed that after Dist. Ct. determined Guideline range to be188 to 235 months, govt. argued in favor of upward departure and recommended 320-month term of incarceration. Ct. rejected govt. claim that there was subtle difference between seeking enhancement and seeking sentence departure and found that instant 320-month recommendation by govt. required remand for new sentence hearing. Ct. also rejected govt. claim that defendant could not show prejudice, after noting that record did not compellingly demonstrate that instant recommendation played no role in ultimate sentence.

Dist. Ct. did not err in sentencing defendant to life term of incarceration on charge of purchasing child for production of child pornography as well as consecutive 1,020-month term of incarceration on multiple counts of producing and possessing child pornography arising out of incident where defendant had given money to mother of four-month-old infant girl for purposes of subjecting girl to various sexual acts. Dist. Ct. could properly consider sentencing memorandum’s discussion of defendant’s videos that depicted defendant’s masturbation, since said videos were relevant to sentencing decision because they demonstrated that defendant had taken pleasure in producing instant graphic films. Moreover, while Dist. Ct. committed procedural error in imposing consecutive sentence to instant life sentence without providing rationale for said imposition, remand was not required where instant life sentence was same as life sentence plus 1020 months. Ct. further found that instant sentence was substantively reasonable given nature of instant offense.

Dist. Ct. erred in denying defendant’s habeas petition that challenged his murder conviction on ground that prosecutor violated defendant’s due process rights by failing to correct perjured testimony from one of govt.'s witnesses who identified defendant as shooter of victim. Defendant did not procedurally default on his claim even though he embedded it in his ineffective assistance of counsel claim, since state appellate court squarely considered factual and legal basis of claim. Moreover, state court’s finding that instant perjury issue was “not meritorious” was unreasonable application of Supreme Court precedent, where: (1) record supported finding that witness lied on witness stand by denying that she had recanted her identification of defendant as culprit to States Attorney; (2) prosecutor was aware of witness’ false statement and did nothing to correct it; and (3) evidence against defendant was not strong. Also, defendant’s appellate counsel was ineffective for failing to raise perjury issue on appeal.

Dist. Ct. did not err in sentencing defendant to 24-month term of incarceration followed by one-year term of supervised release, after finding that defendant had violated original term of supervised release by leaving state without authorization, testing positively for marijuana, and obtaining 7-year sentence on aggravated battery charge arising out of beating of defendant’s 8-year-old son. While defendant argued that Dist. Ct. improperly relied on seriousness of offense factor contained in section 3553(a)(2)(A) that is not listed in relevant statute for post-revocation sentencing (i.e., section 3583(e)), record showed that Dist. Ct. relied upon nature and circumstances of defendant’s violations, as well as his history and characteristics that were set forth in section 3583(e). Moreover, Dist. Ct. did not abuse its discretion when imposing instant one-year term of additional supervised release given extensive nature of defendant’s criminal history, and Ct. rejected defendant’s challenge on vagueness grounds to terms of supervised release that called upon him to, among other things: (1) refrain from knowingly being present at place where drugs are sold or knowingly interact with felons; (2) report to probation officer as directed and to allow said officer access to defendant’s home during certain hours; and (3) refrain from purchasing controlled or psychoactive substances.