Criminal Law

Ct. of Appeals lacked jurisdiction in govt. appeal of dismissal of drug charges, where instant appeal concerned Dist. Ct. order that directed govt. to provide defendant with nine categories of documents and data bearing on exercise of govt.’s law enforcement and prosecutorial discretion, where defendant claimed that instant prosecution was motivated by racial profiling and selective prosecution of criminal charges involving use of non-existent drug stash houses. Instant appeal came after Dist. Ct. had granted govt.’s request for dismissal of indictment without prejudice so that it could appeal underlying discovery order, and while govt. claimed that jurisdiction over appeal was proper under 18 USC section 3731, Ct. of Appeals found that it lacked jurisdiction over appeal since: (1) subject matters for appeals under section 3731 did not include Dist. Ct.’s discovery order; and (2) Dist. Ct.’s dismissal order was not final, where result of order would allow govt. to re-file case regardless of outcome of appeal.

Record failed to contain sufficient evidence to support jury’s guilty verdict on two of several wire fraud counts stemming from scheme in which defendant persuaded investors to loan money to defendant’s company under representation that money would be invested on profitable consumer receivables, when in fact money was used to pay for defendant’s lavish personal expenses and for making questionable loans to others that were not repaid. Govt. introduced only single-page descriptions of two wire transfers without introducing any other evidence indicating how said money from transfers was used to advance scheme. Fact that defendant made similar transfers to support other wire fraud counts did not require different result. Dist. Ct. also did not err in failing to give defendant's proposed instruction on securities fraud count that informed jury that delay in payments to investors is not scheme to defraud, where said instruction: (1) would have misled jury about scope of criminal liability under section 10(b); and (2) was not supported by evidence where defendant’s delay in payments played large role in investors’ decisions to either hold or cash out overdue investment certificates.

Dist. Ct. did not err in revoking defendant’s supervised release based upon incident that occurred in Texas, during which defendant was arrested during traffic stop after officer observed nearly 30 pounds of marijuana in defendant’s car. While said officer testified about his discovery of marijuana in defendant’s car via two-way video conference, said procedure did not violate Rule 32.1(b)(2)(C), which otherwise allows Dist. Ct. to excuse witness’s appearance altogether in revocation hearings under certain circumstances. Moreover, officer’s testimony by itself was sufficient to support instant revocation.

Dist. Ct. did not err in denying defendant-prisoner’s motion to stay prosecution of his section 2241 habeas petition (challenging defendant-prison’s revocation of commissary and telephone privileges, which defendant claimed were done in violation of his due process rights) pending defendant’s request for arbitration of his habeas claim. While defendant produced purported arbitration agreement signed by defendant in his assumed name of “David J. Nelson” and by representative of Bureau of Prisons, document was obvious forgery. Moreover, Dist. Ct. did not err in finding that defendant was not eligible for any relief under section 2241 since instant revocation did not concern length of his custody. Ct. of Appeals further fined defendant $500 for filing false document and referred matter to U.S. Attorney for consideration of bringing criminal perjury charges against defendant.

In prosecution on drug conspiracy charges, Dist. Ct. did not err in sentencing defendant to 360-month term of incarceration based in part on enhancement arising out of defendant’s culpability in killing of rival gang member, even though jury had acquitted defendant of such murder-related charge. Dist. Ct. may consider defendant’s culpability for rival member’s death at sentencing hearing in spite of jury’s not-guilty verdict on said murder charge and could properly find by preponderance of evidence that defendant was responsible for said death based on testimonies of two witnesses to said shooting. Ct. also rejected defendant’s argument that calculation of drug quantity associated with charged drug conspiracy was required to be made by jury and further found that defendant’s sentence was not substantively unreasonable, even though it was longer than his co-defendants, since Dist. Ct. could properly give reduced sentences to co-defendants to reflect their cooperation with authorities.

Dist. Ct. did not err in denying defendant’s habeas petition challenging state court’s denial of his request to appoint new appellate counsel, under circumstances where appellate counsel had failed to file “no-merit report” that would have allowed state appellate court to review defendant's underlying claim that defendant had failed to understand his guilty plea. Record showed that: (1) state appellate court had cured any deprivation of defendant’s appeal rights and ordered defendant’s appointed appellate counsel to file no-merit report; and (2) no-merit report was not ever filed, where defendant expressed desire after state appellate court ruling to have appointed counsel not file such report and eventually obtained dismissal of appointed counsel. Ct. further found that right to counsel of choice did not extend to defendants who require counsel to be appointed for them and rejected defendant’s claim that state appellate court had improperly forced him to discharge appellate counsel and proceed pro se.