Criminal Law

Upon remand from U.S. Supreme Court, Ct. of Appeals found that Dist. Ct. did not err in sentencing defendants on tax-fraud conspiracy charge by using Sentencing Guidelines in effect at time of sentencing hearing that contained harsher tax tables that resulted in higher sentencing range than Guidelines in existence during part of instant conspiracy. Timeframe of charged conspiracy extended beyond 2001, and none of instant defendants had withdrawn from conspiracy by effective date of 2001 Guidelines that contained harsher tax tables. Fact that most of loses caused by conspiracy were incurred prior to 2001 did not require different result, and Ct. rejected defendants’ argument that application of 2001 Guideline violated ex post facto clause.

In prosecution on drug distribution charge, Dist. Ct. did not err in failing to exclude defendant’s inculpatory statement made to DEA agent in defendant’s home even though defendant was in custody and had not been given Miranda warning at time of statement. Record showed that defendant had initiated his statement without prior solicitation by DEA agent. Moreover, Dist. Ct. did not err in admitting videotape of controlled purchase between defendant and informant, even though informant did not testify; no confrontation clause violation occurred because videotape was not “statement” that could be confronted to test its accuracy, and defendant otherwise had opportunity to challenge reliability of videotape. Dist. Ct. also did not err in denying defendant’s request to appoint new counsel for him, even though defendant argued that communications had broken down with trial counsel. Right to counsel of choice does not extend to defendants requiring appointed counsel, and defendant’s only remedy was ineffective assistance of counsel claim.

In prosecution on conspiracy to possess cocaine and heroin, Dist. Ct. did not err in denying defendant’s motion to suppress drugs and cash seized from his home after defendant gave verbal consent to search said home while being handcuffed. At time defendant was handcuffed, police had probable cause to arrest him, where officer had reason to believe that defendant had lied to him about not being in defendant’s home and concealing evidence of crime while officer was waiting for defendant outside defendant’s home. Moreover, Dist. Ct. could properly find that defendant’s consent to search his home was voluntary, even though he was in handcuffs at time consent was given, where: (1) defendant had demonstrated willingness to have officer search home earlier in day; (2) police had honored defendant’s interim request to have police obtain search warrant after defendant had consented to said search on two occasions; and (3) at time he ultimately gave consent that produced discovery of drugs and cash, defendant admitted that he understood necessity that police obtain search warrant in absence of his consent.

Dist. Ct. did not err in sentencing defendant to 51-month term of incarceration on tax fraud charges based, in part, on finding that intended loss for said offense was between $1 million and $5 million. Record supported Dist. Ct.’s finding that defendant actually participated in filing 68 fraudulent tax returns in 2007 that boosted total losses to over $1 million, and record showed that Dist. Ct. adequately addressed defendant’s argument in mitigation regarding effect of incarceration on her children. Fact that Dist. Ct. considered unauthenticated tax log to support its intended loss finding did not require different result.