Criminal Law

In prosecution on murder charges, Dist. Ct. did not err in admitting grand jury testimony of brother of one defendant, as well as similar testimony from brother at first trial, where: (1) brother denied at second trial that either defendant had confessed to said murder; and (2) brother stated to grand jury and at first trial that one defendant had admitted role in said murder. Rule 801(d)(1) allows for admission of transcripts containing witness’s prior inconsistent testimony given under oath. Moreover, prosecutor could properly use brother’s inconsistent statements given to police officials shortly after instant murder to impeach brother at second trial, even though brother claimed that said statements were coerced by threats of future imprisonment, where brother had signed waiver of rights form prior to giving statement and one interrogator testified that brother had not been threatened prior to giving statement. Also, brother could not credibly explain that fear or future perjury charges motivated him to give similar grand jury statement at first trial since said fear does not amount to sufficient “coercion.”

Dist. Ct. did not err in sentencing defendant to 295-month term of incarceration on two counts of transportation of child pornography under 18 USC section 2252A(a)(1), even though Dist. Ct. based said sentence on section 2G2.1 of USSG, which was designed for violators of 18 USC section 2251(a), who induce minors to engage in sexually explicit conduct for purpose of producing and transmitting live depiction of such conduct. Dist. Ct. could properly rely on section 2G2.1 of USSG, where record showed that defendant’s webcam had recorded and transmitted to his computer three still images of live obscene performance by young girl, which, in turn, suggested that defendant had solicited said girl to perform in video that he recorded.

Defendant was entitled to new sentencing hearing on his drug and unlawful possession of firearm charges, where Dist. Ct. had originally sentenced defendant to 420-month term of incarceration plus 5-year term of supervised release. Record indicated that Dist. Ct. was unaware of possibility that defendant could be sentenced to 360-month term of incarceration on said offenses, and Dist. Ct. otherwise failed to take into consideration fact that defendant would be of advanced age at time of his release from incarceration. Moreover, with respect to instant 5-year term of supervised release, Dist. Ct. failed to apply section 3553(a) factors or articulate justification for imposition of non-mandatory terms of supervised release when imposing terms of supervised release.

Dist. Ct. did not err in denying defendant’s motion to dismiss on grounds of double jeopardy his indictment on various conspiracy, firearms and drug charges, even though defendant argued that current indictment was based on conduct that was used to enhance his sentence on his prior conviction on charge of use of communication facility in facilitation of drug-related felony. Dist. Ct. made no explicit reference in prior sentencing hearing to conduct at issue in current indictment, and offenses at issue in relevant conduct determination in prior sentencing hearing were not identical to offenses contained in instant indictment. Moreover, under Witte, 515 US 389, there can be no Double Jeopardy Clause violation since any consideration of uncharged conduct in context of sentencing on prior conviction is not “punishment” for purposes of triggering protections under Double Jeopardy Clause.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his armed robbery conviction on grounds that trial court improperly admitted testimony from two police officers that made references to defendant’s other crimes. Dist. Ct. could properly conclude that any error was harmless, where: (1) numerous other witnesses, including accomplice witnesses, identified defendant as participant in charged robbery; (2) defendant attempted to flee police at scene of crime; (3) defendant’s DNA was found on ski masks and duffel bags that were used in robbery; and (4) defendant’s vehicle, which he identified as “The Moneymaker,” was located at scene of crime.