Criminal Law

Dist. Ct. erred in sentencing defendant-police officer to 42-month term of incarceration on charge of attempt to commit extortion arising out of defendant’s receipt of bribes in exchange for funneling stranded motorists to certain tow truck operators, where said sentence was based upon defendant’s failure to consider defendant’s argument that Dist. Ct. should consider sentence of another police officer, who defendant believed was similarly-situated, and who had received 24-month term of incarceration from applicable guideline range of 46 to 57 months. Dist. Ct. held erroneous belief that it could consider such disparity evidence only if said disparity was presented on national basis. On remand, defendant may present evidence to allow Dist. Ct. to consider whether circumstances of proposed comparable police officer were truly similar as part of defendant’s argument that he deserved sentence below applicable 37-to-46-month range.

Dist. Ct. did not err in sentencing defendant to 120-month term of incarceration on wire fraud charge stemming from scheme to steal funds from elderly individuals, who had invested in his three sleep-related illness-treatment companies, where said sentence was based in part on calculation of loss amount of over $4 million and denial of credit for acceptance of responsibility. Dist. Ct. could properly calculate loss at over $4 million, rather than $700,000 that defendant personally benefited from scheme, since defendant put at risk $4 million that victims invested with defendant, where defendant performed no investment services and spent large quantity of funds on personal items. Moreover, while defendant pleaded guilty to charged offenses, defendant’s allocution supported Dist’s Ct.‘s denial of acceptance of responsibility credit since defendant had failed to take responsibility for his fraudulent conduct. Dist. Ct. could also reject defendant’s request for home confinement based on his medical condition, where Dist. Ct. made finding that two correctional facilities could take care of defendant’s severe medical infirmities.

Dist. Ct. erred in sentencing defendant to five-year term of incarceration, as well as 10-year term of supervised release, after finding that defendant had violated for second time terms of his supervised release on child pornography charge. Remand was required since version of 18 USC section 3583(k) in effect at time defendant committed charged offense authorized maximum incarceration of only two years upon finding of supervised release violation. Defendant, though, will not get credit on instant remanded sentence for three months spent while incarcerated for first violation of supervised release.

Dist. Ct. did not err in sentencing defendant to 120-month term of incarceration on drug charge, even though said sentence was based in part on relevant conduct arising out of defendant’s possession of drugs found in his home that had been subject of defendant’s successful motion to suppress. Under Brimah, exclusionary rule does not apply at criminal sentencing proceedings, and Ct. rejected defendant’s contention that suppression of drugs should be applied at his sentencing hearing where underlying 4th Amendment violation had been “egregious.” Ct. also questioned whether there had been any 4th Amendment violation, where search of defendant’s home, pursuant to search warrant, came after defendant had been arrested with marijuana on his person.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in excusing for cause sole Hispanic juror, after noting that juror was in need of Spanish translator, and that there were no funds to pay for said translator for rest of trial. Rule 24 provides for removal of juror who had become unable to fulfill duties of being juror, and instant juror did not satisfy requirements for jury service under 28 USC section 1865(b)(2), (b)(3), that included ability to read, write and understand English, where record showed that juror was unable to adequately communicate with other jurors or understand trial proceedings without use of interpreter. Fact that Dist. Ct. had allowed juror to sit for first day of trial did not require different result.

In prosecution on fraud charge to which defendant had pleaded guilty, govt. did not breach plea agreement, even though govt. had: (1) referenced defendant’s lengthy criminal history; (2) failed to recommend that loss amount for charged offense be based solely on dishonored checks used to purchase vehicles mentioned in charge; and (3) not approved defendant’s request for return of his property that was being held by state officials. No breach occurred, even though defendant received longer sentence than that to which he and govt. had agreed, where govt. was required to reference defendant’s lengthy sentence to justify agreed-upon, above-guideline sentence. Moreover, plea agreement authorized Dist. Ct. to include other bad checks drawn on bank accounts used in charged offense when determining loss calculation, and govt. could properly oppose defendant’s request for return of his property, where Dist. Ct. lacked jurisdiction to rule on said request.

In prosecution on unlawful possession of firearm and ammunition charges, Dist. Ct. did not err in admitting recorded 911 telephone call from defendant’s non-testifying girlfriend that was made shortly before defendant’s arrest, where girlfriend told operator that defendant had committed battery on her just minutes before and had gun in his possession. Said statement qualified for admission as excited utterance, where girlfriend made call regarding startling event, which occurred just minutes before the telephone call while girlfriend was still under stress of battery, and where statement related to battery that defendant had just committed on girlfriend. Responding officer’s testimony that girlfriend appeared emotional also supported claim that girlfriend was still under stress of battery incident when making telephone call. Dist. Ct. additionally did not err in denying defendant’s motion to dismiss based upon language in restoration of rights letter defendant had received in 1999 after serving his murder conviction, where said letter did not cover any of defendant’s other felony convictions that had occurred prior to murder conviction.