Criminal Law

Dist. Ct. erred in sentencing defendant to 96-month term of incarceration on charges of fraud and money laundering, where said sentence was based, in part, on 4-level enhancement for fraud committed by commodity pool operator under section 2B1.1(b)(18)(iii) of USSG and 2-level enhancement for abuse of position of trust under section 3B1.3 of USSG, since Application Note 14(c) of section 2B1.1 barred abuse of trust enhancement in fraud case, where enhancement for being commodity pool operator applies. However, on remand, defendant could face the same or higher sentence, where presentence report did not consider ramification of defendant’s money laundering conviction, and where record contained testimony that would support vulnerability enhancement.

Dist. Ct. erred in sentencing defendant to 78-month term of incarceration on charges of possession of identification devices, possession of counterfeit access devices and identify theft, where Dist. Ct. based said sentence, in part, on two-level enhancement under section 2B1.1(b)(11)(B) of USSG, after Dist. Ct. found that defendant had trafficked in unauthorized access devices. Application Note 2 to 2B1.6 Guideline that covered instant identify theft charge precluded Dist. Ct. from applying said enhancement, where, as here, defendant had been convicted of identity theft under 18 USC section 1028A, and where Dist. Ct. found that defendant’s trafficking of unauthorized access devices (i.e., fake social security cards) also constituted transfer of “means of identification.”

In prosecution on drug distribution and unlawful possession of firearm charges, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of drugs and firearms from his apartment, where police had seized said items while attempting to execute search warrant for nearby apartment in same building. Record showed that: (1) police were aware that shooting had occurred earlier that day in building; (2) police encountered open doors to defendant’s apartment and apartment that was subject to search warrant; (3) officer shot pit-bull, that had initially run up stairway leading to defendant’s apartment but suddenly turned and charged officer; and (4) officer observed drugs in defendant’s kitchen while conducting protective sweep of building. While defendant argued that instant seizure should have been suppressed because police made initial entry into his apartment without warrant or lawful reason to enter, initial entry into defendant’s apartment was proper, where officers could reasonably conclude that they might face danger while enforcing first search warrant.

In prosecution on series of child pornography charges, Dist. Ct. did not err in allowing jury to view properly admitted pictures of child pornography that had been collected from defendant’s residence that resembled pictures of child pornography at issue in charged offenses. Defendant did not challenge admissibility of said pictures under Rules 404(b) and 414, and while defendant argued that submission of pictures to jury for purposes of deliberation on charges was unduly prejudicial because of inflammatory nature of said pictures, jurors are generally entitled to examine admitted exhibits. Moreover, instant pictures possessed great deal of probative value, since they represented strong evidence that defendant was named user, who advertised and distributed child pornography on web site that formed basis of charged offenses.