Criminal Law

Dist. Ct. did not err in sentencing defendant to below guideline 36-month sentence on wire fraud charge stemming from defendant’s participation in scheme with several others to submit fraudulent property loan applications that were approved by defendant and resulted in $290,000 loss to defendant’s employer. While defendant challenged Dist. Ct.’s imposition of enhancements for abuse of position of trust and use of sophisticated means in committing instant fraud, record supported said imposition where defendant’s employer relied on defendant, as long-term and licensed employee, to determine whether straw purchaser that was subject of fraudulent loan application was suitable loan risk. Moreover, imposition of sophisticated means enhancement was appropriate, where scheme involved straw purchases, false property assessments and false verifications of information by attorneys. Fact that Dist. Ct. relied in part on findings made in sentencing hearings of co-defendants did not require new sentencing hearing, where defendant did not challenge accuracy of said information.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on grounds that state trial court denied defendant’s right to counsel by failing to ensure that his decision to waive trial counsel was either knowing or voluntary. Trial court explicitly warned defendant about hazards of self-representation and gave him one week to think about decision before accepting waiver of counsel. Moreover, while defendant, in citing to his borderline mental retardation IQ score, argued that he did not subjectively understand instant waiver, defendant could not identify any fact that should have alerted trial court to suspect that defendant had impaired faculties, where record showed that defendant was lucid and responsive throughout pre-trial proceedings. Defendant also did not suggest to trial court at time of waiver that he had difficult relationship with his counsel.

Dist. Ct. did not err in sentencing defendant to 78-month term of incarceration on wire fraud charge stemming from defendant’s participation in Ponzi scheme in which defendant promised potential investors large returns from investments in defendant’s companies that would pay for their home mortgages. Dist. Ct. could properly deny defendant any acceptance of responsibility downward adjustment since defendant did not plead guilty until after several witnesses had testified against her at trial. Moreover, Dist. Ct. did not err in applying abuse of position of trust enhancement where victims placed their money and their faith in defendant to obtain substantial returns and to make home mortgage payments on their behalf from investment proceeds. Ct. further noted that defendant’s counsel had effectively waived said issue by stating in his sentencing memorandum and at sentencing hearing that he had no objection to application of said enhancement.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his conviction on drug distribution charge on ground that his trial counsel was ineffective in failing to inform defendant during plea negotiations that his prior conviction would trigger section 851 provisions calling for higher minimum penalty of 20 years on instant charge, where prosecutor’s plea offer was sentence that was five months below 20-year term. While counsel admitted to failing to inform defendant of any 851 treatment on his potential sentence that defendant believed during plea negotiations was only 10-year minimum, defendant failed to show any prejudice with respect to his counsel’s representation, where at time of plea negotiations defendant was emphatic that he would not accept any proposed plea agreement that had been offered to him.

In prosecution on unlawful possession of firearm charge stemming from search of defendant during traffic stop, Dist. Ct. did not err in denying defendant’s motion to suppress search where defendant was passenger in said vehicle. While defendant argued that police lacked reasonable basis to frisk him, police had reasonable suspicion to frisk him where: (1) police had reasonable basis to stop vehicle; (2) police had reasonable basis to frisk driver, since police had knowledge that driver had recently been arrested with firearm on two other occasions and had attempted during instant stop to flee through red light; and (4) police could have concluded that driver had opportunity during car chase to transfer firearm to defendant. Defendant, though, was entitled to new sentence hearing where: (1) Dist. Ct. was under misunderstanding that five-year period of supervised release was statutorily prescribed minimum period of time; and (2) Dist. Ct. failed to adequately explain its rationale for imposition of 210-month sentence. Fact that defendant had suggested 210-month sentence as one of several alternatives did not relieve Dist. Ct. of its obligation to provide said explanation.