Criminal Law

In prosecution on bank robbery charges, Dist. Ct. did not err in admitting testimony from witness to one bank robbery that she had identified defendant as culprit by selecting his photograph from photo array containing six photographs given to her by police. While defendant argued that photo array procedure is improperly suggestive, and that police should have used procedure calling for police to give witness photographs sequentially until she identified culprit, instant photo array was not suggestive where nothing in array made defendant’s photograph stand out from others. Ct. also fined plaintiff’s $2,000 for failing to include in brief’s appendix transcript of hearing that produced ruling at issue on appeal and by falsely representing that appendix had contained all materials required under Circuit Rule 30(a) and (b).

In prosecution on drug and firearm charges stemming from traffic stop of defendant, where police officer experienced strong smell of marijuana, and where drugs and firearm were seized from car, prosecutor improperly vouched for credibility of police officer during closing arguments, where prosecutor stated that officer would not violate his oath or break the law, and that officer had no incentive to falsely implicate defendant in charged offense, since said statements referred to facts that were outside of record. However, error was harmless, where undisputed evidence indicated that defendant was alone in car that contained marijuana packets, loaded gun, multiple cell phones and substantial amount of cash.

Dist. Ct. did not err in sentencing defendant to 60-month term of incarceration on charge of unlawful possession of firearm, where said sentence was based in part on enhancement under section 2K2.1(b)(6)(B) of USSG, where defendant had transferred said gun to another individual whom defendant had reason to believe was felon, whose possession of said firearm was prohibited under 18 USC section 922(g)(1). Ct. rejected defendant’s argument that said enhancement could not apply where defendant had transferred firearm to another person, who, like defendant, was precluded by statute from possessing said firearm, since, according to defendant, third-party’s possession of same firearm was not “another felony offense” separate and distinct from defendant’s charged offense.

In prosecution on charges of making false statements relating to health care matters and health care fraud, arising out of scheme by defendant-internist to submit bills to insurers for reimbursement on large volume of unnecessary diagnostic tests, where said bills contained false diagnostic codes, fake symptoms and sham diagnoses, Dist. Ct. did not err in admitting summary charts listing large percentages of defendant’s patients, who received certain tests or diagnoses. While defendant argued that said tests were irrelevant without expert to testify that numbers on charts were comparatively high, govt. witness/internist, who qualified as expert, indicated that subject tests were not medically necessary, and that number of tests performed by defendant’s relatively untrained staff was exceedingly high, where medical industry would expect that only trained specialists would perform only small number of subject tests. Moreover, govt. witness also stated that defendant’s notes in patient charts did not contain information that would typically be found for patients with diagnoses given by defendant.