Criminal Law

Dist. Ct. erred in imposing as special condition of defendant’s supervised release on his extortion conviction instant prohibition on defendant being self-employed, as well as requirement that defendant subject himself to search by probation officer, even without warrant or reasonable suspicion of wrongdoing. Dist. Ct. failed to articulate direct relationship between said conditions and defendant’s conviction and failed to provide reason for why search without reasonable suspicion of wrongdoing was appropriate.

Dist. Ct. did not err in denying defendant’s motion to vacate his 240-month term of incarceration on unlawful possession of firearm and ammunition charges, where basis of motion was defendant’s claim that his counsel was ineffective for failing to object to pre-sentence report’s characterization of his 1995 burglary conviction as crime of violence and for failing to fulfill defendant’s request to plead guilty. Dist. Ct. found that defendant had actually rejected plea offer tendered to prior counsel, and instant counsel was not required to press any plea offer on defendant, where defendant had insisted to instant counsel that he wanted to go to trial. Moreover, present counsel’s failure to object to characterization of 1995 burglary conviction as crime of violence was appropriate under case law at time of sentencing.

In prosecution on drug distribution and firearm charges, Dist. Ct. erred in denying defendant’s motion to suppress guns and drugs seized pursuant to search warrant, where defendant alleged that magistrate lacked probable cause to issue said warrant where affidavit used to support said warrant contained no information regarding confidential informant’s credibility, and where Dist. Ct. refused defendant’s request for Franks hearing. Failure of affidavit to contain any information of informant’s credibility deprived magistrate of ability to make accurate probable cause finding, and Franks hearing on remand is necessary to determine whether officer’s omission of information regarding informant’s criminal background and financial incentive for providing information to police was example of officer’s reckless disregard of truth so as to preclude any application of good faith exception to exclusionary rule.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his drug conspiracy conviction on ground that Dist. Ct. moved one of defendant’s Spanish-speaking interpreters from defense table to interpret for Spanish-speaking witness at trial, and that said failure to have interpreter during said testimony deprived him of ability to inform his counsel that said witness had been threatened by govt. agents. Defendant does not have due process right to have interpreter continuously seated at defense table or right to simultaneous interpretation of attorney-client communications, and defendant otherwise had opportunity to communicate with counsel during break to inform him of any threats made to witness. Moreover, Dist. Ct. specifically found that one interpreter was located at defense table during testimony of said Spanish-speaking witness. Ct. similarly rejected defendant’s claim to right to have all discovery translated into his native language, and his counsel otherwise testified that he reviewed voluminous discovery in case and spent six hours with defendant explaining results of his review of discovery.

In prosecution on charge of receipt of child pornography stemming from defendant’s efforts to pose as teenage boy on Internet in order to persuade under-aged girls to provide him with sexually-explicit pictures, Dist. Ct. did not err in denying defendant’s motion to suppress incriminating statements defendant made during 5.5 hour execution of search warrant. While defendant argued that he was “in custody” during execution of warrant, such that he should have been given Miranda warnings prior to making such statements, Dist. Ct. was entitled to credit officer’s testimony that defendant was free to leave premises at any time and that he was free to move about premises for all but few minutes after police made their initial entry. Moreover, warrant was supported by probable cause even though it was issued eight months after last police investigator download of child pornography from IP address at defendant’s residence, since affidavit supporting search warrant made statement indicating likelihood that child pornography would still be contained in computers located at said residence.

Dist. Ct. erred in imposing as special terms of defendant’s supervised release prohibitions on defendant’s possession of sexually stimulating material, as well as his having contact with minors, as part of his sentence on charge of transportation and shipping of child pornography. Instant prohibitions were overly broad, and Dist. Ct. on remand must define what materials are “sexually stimulating” so as to not block defendant’s access to protected speech. Moreover, Dist. Ct. failed to explain why no-contact ban with respect to minors was necessary in defendant’s case.