Criminal Law

Ct. of Appeals determined that defendant-prisoner was entitled to equitable tolling of deadline to file appeal of denial of his habeas petition by extending 150-day judgment-deeming rule until date defendant actually received notice that his petition had been denied on February 9, 2011. Record showed that: (1) personnel had misled defendant regarding status of said petition by inaccurately telling him in December of 2011 that his petition was still pending; (2) Dist. Ct.’s decision dismissing said petition had not been sent to defendant at time of said decision; and (3) defendant did not become actually aware of true status of petition until March 22, 2013, when clerk of Dist. Ct. sent defendant letter informing him of actual date of dismissal. Ct. further noted that April 16, 2013 filing of petition was timely, and that under said circumstances, defendant had no reason to think that he would have to make periodic inquiries of clerk’s office concerning status of his case in order to protect his right of appeal.

Dist. Ct. did not err in sentencing defendant to 78-month term of incarceration on bank fraud charge, as well as 24-month consecutive sentence for aggravated identify theft, based on scheme to acquire personal information from bank customers and to use said information to divert funds into accounts controlled by defendant. Although said sentences were improperly enhanced on expanded version of term “victim” that was in effect in guidelines at time of sentencing, as opposed to narrower version that was in effect at time defendant committed charged offense, any overstatement regarding number of victims was harmless error where record is clear that Dist. Ct. would have imposed same sentence under narrower definition of victim.

In prosecution on bank robbery and witness intimidation charges, Dist. Ct. did not err in instructing jury that jury “must,” as opposed to “should,” find defendant guilty of charged offense if govt. proved defendant guilty beyond reasonable doubt. Defendant’s proposed instruction using term “should” was akin to improperly giving nullification instruction. Moreover, jury would have reached same verdict regardless of whether instruction contained either “must” or “should,” since both terms convey imperative when used to instruct jury on whether to convict defendant. Ct. rejected defendant’s argument that jury instruction must reflect theoretical availability of jury nullification.