Criminal Law

Dist. Ct. did not err in denying defendant’s motion to dismiss instant indictment alleging three counts of murder during commission of drug crime, even though federal prosecutor relied extensively on self-incriminating statements that defendant gave to state officials pursuant to state immunity agreement. While defendant argued that terms of separate immunity agreement with federal officials in which defendant gave statements regarding certain drug activities precluded use by federal prosecutor of statements defendant gave to state officials, plain language of federal immunity agreement did not immunize cooperative statements defendant gave to state officials. Ct. further rejected defendant’s argument that state officials violated his due process rights by encouraging federal officials to bring instant charges, where record showed that state officials had disclosed substance of instant self-incriminating statements prior to any alleged encouragement.

Dist. Ct. did not err in denying defendant-alien’s motion to dismiss his indictment on charge of illegal reentry after his removal from U.S., even though defendant argued that underlying removal order violated his due process rights. While underlying removal order was based on defendant’s prior conviction for cocaine possession, which U.S. Supreme Ct. subsequently found in another case to not qualify as “aggravated felony” for purposes of defendant’s removal, defendant could not collaterally attack prior removal order where: (1) defendant had failed to exhaust his administrative remedies by appealing or asking his counsel to appeal removal order; (2) defendant had failed to file any habeas petition that challenged removal order prior to his actual removal; and (3) while aggravated felony finding deprived defendant from seeking discretionary relief in removal proceeding, defendant had no due process right to apply for discretionary relief.

In prosecution on charge of possession of firearm by drug user, Dist. Ct. did not err in denying defendant’s motion to suppress evidence discovered by police during protective search of defendant’s home, after defendant had left his home and locked his front door just prior to his arrest. Protective sweep of defendant’s property was proper, where: (1) police SWAT team received report of hostage situation that had been validated by text messages from victim indicating that victim was being held hostage within defendant’s home; (2) victim indicated that defendant possessed gun, but no weapon was on his person at time of his arrest; (3) defendant waited for one hour to leave his home after police had demanded that all occupants leave defendant’s home; and (4) police held reasonable belief that armed and dangerous individual still remanded in defendant’s home at time of his arrest.

In prosecution on wire and mail fraud charges stemming from scheme in which defendant submitted fraudulent loan applications and convinced distressed homeowners to sign over title to their properties in exchange for unrealistic promise to return said titles mortgage-free at some point in future, Dist. Ct. did not err in rejecting defendant’s proposed instruction that required jury to unanimously find existence of specific fraudulent representation made by defendant. Elements of wire fraud offense requires jury to only unanimously find existence of scheme to defraud, and not specific fraudulent representation made by defendant, because defendant’s fraudulent representations constituted only “underlying brute facts” or means that defendant used to participate in scheme.

Dist. Ct. did not err in sentencing defendant to 92-month term of incarceration on bank robbery charges. Fact that defendant had never entered bank or participated in getaway did not require different result because defendant had admitted to having conspired to commit bank robbery, and thus was liable for crimes committed by those who had entered bank. Moreover, Dist. Ct. did not err in rejecting defendant’s claim that he was entitled to minor-participant reduction in guideline range, where Dist. Ct. noted that defendant recruited third-party and supplied third-party with pellet gun that third-party used in robbery.