Criminal Law

Ct. of Appeals suspended consideration of defendant’s appeal of 15-month term of incarceration imposed by Dist. Ct., after finding that defendant had violated certain terms of his supervised release by testing positive for marijuana and by violating rules of halfway house, where he had been living. Record contained some evidence that Dist. Ct. Judge had participated in previous revocation of defendant’s supervised release prior to becoming Dist. Ct. Judge. As such, parties were directed to submit supplemental briefs as to whether section 455(b)(3) of Judicial Code applied so as to disqualify instant Dist. Ct. Judge from deciding current revocation petition.

Dist. Ct. did not err in imposing 2-level enhancement for production or trafficking in credit and debit cards under section 2B1.1(b)(11)(B)(ii) of USSG as part of his sentence on charges of conspiracies to use counterfeit devices, to possess forged securities and to commit bank fraud, after officials discovered 304 credit and debit cards in names of defendant and others involved in charged conspiracies. While defendant argued that enhancement was improper in absence of explicit finding of defendant’s intent to traffic or dispose of said cards, Dist. Ct. made necessary implicit finding that defendant and others had produced said cards in their own names in preparation for conducting other crimes so as to justify instant enhancement. Dist. Ct. erred, though, in imposing as special terms of defendant’s supervised release requirement that defendant: (1) pay for certain monthly drugs tests, where Dist. Ct. failed to make finding that defendant could afford to pay for said tests; and (2) be subjected to random searches, where record failed to contain any justification for said searches.

Record contained sufficient evidence to support jury’s guilty verdict on charge that defendant violated Contraband Cigarette Trafficking Act (CCTA) that prohibited defendant from receiving/possessing contraband cigarettes that failed to have required state tax stamps, where said conviction stemmed from multiple purchases of large quantities of cigarettes totaling over $600,000. While defendant claimed that he was authorized to possess said cigarettes under exemption for agents of licensed distributors in Illinois, defendant failed to present evidence indicating either that he obtained invoice for said purchases to satisfy accounting requirements under CCTA, or that he had purchased said cigarettes from approved cigarette distributor, so as to qualify for said exemption. Ct. further rejected defendant’s claim that CCTA was unconstitutional because it violated 10th Amendment and/or was otherwise impermissibly vague.

In prosecution on drug conspiracy and various fraud charges, Dist. Ct. did not err in entering order requiring defendant to forfeit eight parcels of real estate that govt. claimed were purchased through funds generated by defendant’s criminal activities. While defendant argued that forfeiture was improper under Rule 11 and 410 because forfeiture was based on statements made by defendant during two proffer discussions, defendant waived such argument since he signed proffer letter. Moreover, govt. did not have burden to establish that said waiver was knowing or voluntary, and Rules 11 and 410 do not apply to forfeiture proceedings. Alternatively, record supported forfeiture where instant parcels qualified as “substitute assets” that could be used to satisfy in personam judgment entered by Dist. Ct. Also, Dist. Ct. properly used “net worth” analysis to justify forfeiture order, where record showed that there was no likely source of legitimate income to purchase said parcels.