Criminal Law

Dist. Ct. erred in imposing life term of supervised release as part of his sentence on charge of failing to register as sex offender, where applicable range was statutory term of five years, and where Dist. Ct. failed to explain why life term of supervised release was warranted. Dist. Ct. also erred in banning all use of alcohol as special condition, where there was no evidence that defendant’s alcohol use contributed to his repeated criminal conduct. While Dist. Ct. could impose some restriction on defendant’s alcohol use, it must define on remand what constitutes excessive use of alcohol. Dist. Ct. also erred in: (1) requiring defendant to use computer filter, where defendant’s computer use was not involved in instant offense; (2) imposing restrictions on defendant’s contact with his own children; and (3) requiring defendant to pay costs for certain conditions of supervised release without stating any consequence for his failure to pay. Dist. Ct. did not err, though, in imposing sex offender treatment program, where defendant had history of making inappropriate contact with unrelated minor girls.

Dist. Ct. did not err in denying defendant’s motion to withdraw his guilty plea to unlawful possession of firearms charge, where defendant asserted that record did not establish factual basis for said charge during plea colloquy given defendant’s contention that he was only in proximity to third-party, who possessed firearm during car jacking. Facts related during plea colloquy indicated that defendant and third-party undertook joint criminal activity when committing car jacking and subsequently fleeing from authorities to avoid capture. As such, defendant was liable for acts of third-party, who, with defendant’s knowledge, used firearm to advance joint venture of fleeing from authorities.

Dist. Ct. did not err in sentencing defendant to 77-month term of incarceration on charge of unlawful reentry into U.S. without permission, where instant sentence was at low end of advisory sentencing range, and where defendant had extensive criminal history that included six convictions for drug trafficking-related offenses and two prior unlawful reentry convictions. While defendant argued that Dist. Ct. erred in failing to address defendant’s argument that he was entitled to downward adjustment based on treatment given to others in fast-track districts, no error occurred since: (1) govt. (as opposed to Dist. Ct.) had discretion to render defendant eligible for such treatment and govt. stated that defendant’s extensive criminal history did not make him good candidate for such treatment; and (2) defendant’s argument wrongly assumed that instant Dist. Ct. did not participate in fast-track program. Moreover, while defendant presented several mitigating factors, his sentence was substantively reasonable given his criminal history.

In prosecution on charges that defendant attempted to use weapon of mass destruction and attempted to damage building by means of explosive, Dist. Ct. erred in finding, after conducting in camera and ex parte procedure of classified materials under Foreign Intelligence Surveillance Act (FISA), that although she was capable of making accurate determination as to whether classified information obtained in govt.’s electronic surveillance of defendant was lawfully conducted under FISA based upon information contained in classified materials, such materials should be made available to defendant’s counsel because said materials “may be necessary” in going forth with his motion to suppress such surveillance evidence. Attorney General made necessary statement that disclosure of such classified materials would harm national security of U.S., and FISA language allows disclosure to defendant’s counsel only if Dist. Ct. could not make ruling on motion without assistance of defendant’s counsel. Fact that defendant’s counsel had requisite security clearance to receive such information did not require contrary result. Ct. also indicated that it would be drafting classified opinion to explain its observation that govt. investigation into defendant’s activities did not violate FISA.

Record contained sufficient evidence to support defendants’ RICO convictions stemming from their involvement in gang-related murders and attempted murders, aggravated assaults, extortion and drug trafficking. Record showed that defendants, as members of Latin Kings gang, used violence and threats of violence to carryout revenge murders, discipline of fellow gang members and coercion of third-parties to pay “protection” money. Moreover, jury was not required to agree unanimously on existence of predicate acts supporting RICO conspiracy even though some defendants were not personally involved in all predicate acts. Fact that certain threats were made prior to dates set forth in indictment did not require different result. Moreover, Dist. Ct. could impose three consecutive 20-year sentences (for both predicate acts and RICO offense) to achieve maximum possible 60-year sentence, and fact that one defendant would likely die in prison as result of sentence did not require different result. Remand was required for new sentencing hearings for two defendants where Dist. Ct. failed to make finding as to applicable sentence range and failed to properly give another defendant credit for acceptance of responsibility.

In prosecution on child pornography distribution charge, Dist. Ct. erred in failing to give defendant’s proffered entrapment instruction on child pornography distribution charge based on efforts by third-party, who had been previously arrested on child pornography charges, to repeatedly ask defendant to download defendant's collection of child pornography from defendant’s computer. Record showed no evidence that defendant had ever before distributed child pornography prior to multiple requests by third-party to do so, and while defendant used file-sharing applications to acquire child pornography, he never unlocked his computer files to allow others to obtain his collection. Fact that defendant had possessed child pornography was insufficient by itself to demonstrate predisposition to distribute. Moreover fact that third-party was good friend of defendant, who otherwise suffered from social anxiety, presented some evidence that govt. had exploited friendship to induce defendant to agree to download request.