Criminal Law

Dist. Ct. did not err in sentencing defendant to 151-month term of incarceration on wire fraud charge stemming from scheme to generate mortgage loan applications containing false representations, even though defendant argued that $1,447,270 loss figure to which he had stipulated as part of plea agreement should have been reduced by $486,000 because information about fraud associated with that amount was obtained through plea proffer sessions. Record did not support $486,000 figure, and that true figure of $423,750 was too small to change applicable sentencing range. Moreover, Ct. rejected defendant’s alternative argument that Dist. Ct. could not have viewed him as organizer or leader of scheme, after Ct. noted defendant’s admission to submitting 65 fraudulent mortgage loan applications, as well as defendant’s recruitment efforts and advice to others about submitting false documents.

Dist. Ct. erred in sentencing defendant to 30-year term of incarceration on four charges of knowingly recruiting girls under age 18 to go across state lines and engage in commercial sex act, where Dist. Ct. was under belief that applicable sentencing range was life imprisonment, which was sentencing range in effect at time of sentencing. Former sentencing guideline calling for range of 30 years to life should have been applied to two out of four victims, since defendant’s conduct as to them was completed prior to effective date of current guideline range. Ct. also rejected govt. argument that “one book” rule applied as to all four victims, so as to require sentencing under current sentencing guideline.

In prosecution on charge of attempted transfer of obscene material to minor by using means of interstate commerce under 18 USC section 1470 that arose out of defendant’s webcam chat with undercover police official posing as 13-year-old girl, Dist. Ct. did not err in denying defendant’s request to have two jurors excused for cause, even though one juror disclosed that her daughter had been raped, and another juror indicated that she had been raped. Both jurors gave unequivocal assurances that they could be impartial, and fact that defendant used his own peremptory challenges to excuse said jurors did not violate any constitutional or rule-based right. Moreover, defendant could not assert 6th Amendment claim based on his “loss” of peremptory challenges without showing that his jury was not impartial. Also, Double Jeopardy principles did not preclude instant prosecution, even though defendant had previously been acquitted on charge of attempted use of interstate facilities to engage in criminal sexual activity with minor under 18 USC section 2422 arising out of same incident, since each charge required proof of at least one fact not required by other charge.

Record contained sufficient evidence to support jury’s guilty verdict on charge of bribery under 18 USC section 666, where record showed that third-party paid defendants to arrange for lower property assessment. Although defendants argued that they could not be convicted of bribery, where they would have lowered assessment regardless of payment and intended to only deceive third-party, section 666 forbids defendants from taking gratuities to perform their duties, as well as taking bribes. However, defendants’ wire fraud convictions under 18 USC 1341 must be vacated where Dist. Ct. erroneously used instruction that told jury that they could convict defendants if they took third-party’s money intending to be rewarded for their official acts. Moreover, defendants’ secret receipt of gratuity does not violate mail fraud offense under section 1341, where theory of charged offense concerned allegation that defendants deprived County of their loyal services by secretly taking third-party’s money.

Record contained sufficient evidence to support defendant’s fraud conviction arising out of telemarketing scheme to assist owners of timeshares to resell their timeshares to others. Record showed that, contrary to defendant’s claim, defendant was aware of scope of conspiracy and knowingly misled timeshare owners into believing that: (1) she had viable buyers for their timeshares; and (2) fine print on contracts indicating that defendant's company was only selling advertisement space for said timeshares did not apply to said owners. Moreover, while one witness improperly testified that another co-defendant had pleaded guilty to instant fraud charge under circumstances where said co-defendant did not testify at trial, any error was harmless given strength of evidence against defendant.