Criminal Law

Record contained sufficient evidence to support Dist. Ct.’s revocation of defendant’s term of supervised release, where said revocation was based on initial statements that defendant’s girlfriend gave to police officials and medical personnel that defendant had assaulted her with small souvenir baseball bat. While defendant argued that he was denied due process under both 5th Amendment and Rule 32.1 because precise crime that ultimately led to instant revocation was not cited in revocation petition, Ct. of Appeals rejected defendant’s proposed per se rule that would require such notice. Moreover, Ct. found that defendant had received adequate notice for purposes of his due process rights where instant revocation petition cited to specific police report that contained detailed allegations of assault that formed basis of instant revocation.

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant’s motion to suppress 15 kilograms of cocaine found in trap compartment of vehicle defendant was driving, after defendant was stopped on traffic violation, and after police dog alerted for presence of drugs. Videotape of police stop supported officer’s contention that defendant had actually committed lane violation so as to support instant stop, and while instant police dog had only 59% accuracy for alerting to presence of drugs, instant alert, along with other evidence indicating that defendant had large amount of cash on his person, was enough to support finding of probable cause for officer’s search of vehicle.

In prosecution to revoke defendant’s supervised release based on defendant’s conviction on unlawful possession of firearm charge, Dist. Ct. did not err in sentencing defendant to 12-month term of incarceration, half of which was to be served consecutive to sentence on unlawful possession of firearm charge. Ct. rejected defendant’s argument that Dist. Ct. failed to consider relevant sentencing factors, such as nature and circumstances of his arrest, under section 3553(a), where Dist. Ct.: (1) noted defendant’s inability to learn from his past criminal behavior, as well as need for incremental punishment to address defendant’s violation of term of supervised release; and (2) commented on need to address serious effects of violent crime associated with defendant’s possession of firearm.

Dist. Ct. erred in imposing $31,845 restitution order on defendant’s bank robbery convictions, where $21,230 of said restitution order was based on four uncharged bank robberies that defendant had admitted to doing, since restitution statutes authorize restitution only for victims of charged offenses. Ct. rejected govt. claim that Dist. Ct. could impose such restitution as term of supervised release.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress two handguns found in defendant’s car during routine traffic stop. While defendant argued that he did not consent to said search when he said "I guess so” in response to officer’s question “mind if I look” and then failed to respond to officer’s follow-up question “so we’re good” since he actually was responding to wife on his cell-phone, Dist. Ct. could properly find that defendant gave consent to search car based on testimony of two officers, who stated that defendant’s response of “I guess” was directed to officer’s request to search car. Moreover, defendant’s failure to stop officer from searching car once officer began search also indicated that defendant had actually consented to search.

Dist. Ct. erred in increasing from 348 months to 472 months defendant’s sentence on certain drug charges, where: (1) defendant’s original 540-month sentence was reduced to 348 months pursuant to 18 USC section 3582(c)(2) based on retroactive change to sentencing guidelines for said offenses under Amendment 782 of Sentencing Guidelines; and (2) Dist. Ct.’s increase came more than 14 days after date Dist. Ct. had reduced defendant’s sentence to 348 months. Rule 35 provides that Dist. Ct. has only 14 days to correct any error in sentencing, and Dist. Ct. otherwise failed to identify any “arithmetical, technical or clear error” to justify its modification of reduced sentence under section 3582(c)(2).

Dist. Ct. erred in finding that defendant was guilty of willful/criminal contempt for failing to report for jury duty in spite of having received summons to do so. Defendant explained that she merely forgot to appear for jury duty at time when she was experiencing difficult pregnancy, and when she was taking care of seriously ill mother, and Dist. Ct. essentially shifted burden of proof to defendant to convince him that she had not willfully disobeyed jury summons under circumstances where defendant gave her statement of reasons for failing to appear, and where govt. lawyer engaged in no cross-examination of defendant. Moreover, Dist. Ct. failed to cite statutory basis for finding defendant guilty of contempt. Fact that defendant did not appear for jury duty, by itself, did not establish proof that defendant had willfully disobeyed summons.