Criminal Law

Ct. of Appeals denied defendant’s mandamus petition seeking dismissal of his indictment on drug charge since Dist. Ct. lacked subject-matter jurisdiction over him because he had never been in U.S., and since speedy trial clause of 6th Amendment barred his prosecution due to govt.’s failure to extradite him from either England or Nigeria. While Dist. Ct. currently has no jurisdiction over defendant, instant indictment has no expiration date, such that if defendant ever came to U.S., he could be put on trial for said charge. Moreover, defendant’s speedy trial claim is premature since issues regarding duration of delay, defendant’s responsibility for said delay and harm to defendant because of delay could not be determined until Dist. Ct. proceedings had been complete. Ct. further observed that since defendant always had ability to come to U.S. to face instant criminal charge, he could not reasonably assert that govt.’s failure to extradite him required dismissal of instant charge.

Record contained sufficient evidence to support defendants’ convictions for drug conspiracy regarding distribution of heroin, even though defendants argued that they were not part of charged conspiracy, which defendants argued was committed by others. At least one witness testified that both defendants were involved with others in drug trafficking activities that included plans to purchase drugs twice per week, to prepare said drugs for retail sales and to direct others in said drug activities. Ct. rejected defendants’ claims that they were merely present while others conducted drug conspiracy, or that they were involved in different conspiracy. Dist. Ct. also did not err in admitting under Rule 801(d)(1)(A) one witness’s grand jury testimony, where said witness indicated in her trial testimony that she could not recall making any incriminating statements against defendant.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in admitting out-of-court statement by individual who claimed that he saw defendant point gun at victim’s head in backyard area of tavern. Said statement qualified as excited utterance, where individual witnessed event, came back into tavern within one minute and whispered to another to call police. Fact that defendant whispered utterance did not detract from startling nature of incident. Moreover, declarant need not be completely incapable of deliberative thought at time of utterance in order for it to be admissible under excited utterance exception to hearsay rule. Also, any error was harmless since there was other evidence to support finding that defendant unlawfully possessed weapon.

Dist. Ct. did not err in sentencing defendant to 100-month term of incarceration on unlawful possession of firearm charge, where said sentence was based in part on enhancement under section 2K2.1(c) of USSG, where defendant’s offense concerned prohibited transaction involving firearm. Record supported imposition of said enhancement where: (1) weapon was found in proximity to defendant and drugs that were in plain view at time of defendant’s arrest; and (2) testimony at sentencing hearing indicated that defendant had been selling drugs at same location on evening prior to his arrest. Ct. rejected defendant’s claim that Dist. Ct. lacked reliable evidence establishing connection between charged offense and drug activity. Fact that Dist. Ct. allowed hearsay evidence during sentencing hearing regarding instant drug sales did not require different result, where certain aspects of hearsay evidence was corroborated by police officer’s observations during search of residence.