Criminal Law

Dist. Ct. did not err in sentencing defendant to 150-month term of incarceration on charges of wire fraud, tax evasion and violation of Commodities Exchange Act arising out of Ponzi-scheme in which defendant used clients’ margin fund accounts to pay for his personal expenses. While defendant challenged Dist. Ct.’s finding that actual loss arising out of scheme was between $7 million and under $20 million, defendant admitted during colloquy plea that he misappropriated over $10 million in client funds, and analyst gave opinion that additional losses came from other customers. Ct. rejected defendant’s claim that clients’ margin balances were inappropriate measures of loss, even though defendant argued that other innocent factors such as agency shut-down of defendant’s business could have played role in said loss.

Dist. Ct. did not err in denying defendant’s habeas petition alleging that his trial counsel was ineffective for failing to properly advise him of consequences of failing to accept plea bargain that required defendant to serve only one more year in prison verses consecutive 6-year and 21-year terms of incarceration that defendant actually received after he took case to trial on sexual assault and kidnapping charges. Defendant failed to establish any prejudice arising out of counsel’s failure to advise him that he could receive consecutive sentences that required that he serve 85, as opposed to 50 percent, of said sentence if he failed to accept plea, where record showed that: (1) defendant’s assertions as to what he would have done had he been properly advised by counsel were uncorroborated; and (2) during plea process, defendant insisted that he would not accept plea because he was innocent of instant serious charges. Moreover, although disparity in proposed sentence in plea bargaining and defendant’s actual sentence was great, defendant was required to show something more that sentence lengths to establish that he would have pleaded guilty to said charges if properly advised by counsel.

In prosecution on drug distribution charge, Dist. Ct. did not commit plain error in admitting testimony of forensic analyst, who opined that substance obtained from defendant was crack cocaine, even though analyst did not personally test said substance, but rather based testimony on raw data generated by colleague of analyst, who did not testify. No Confrontation Clause violation occurred, where analyst relied on information gathered and produced by another analyst and based her independent conclusion after reviewing said data. Moreover, defendant did not deny at trial that substance was crack cocaine. However, limited remand was required for Dist. Ct. to determine it would have entered instant below-guideline, 144-month sentence if it was aware that Fair Sentence Act guidelines applied to defendant’s sentence.

In prosecution on drug distribution charge, Dist. Ct. did not err in admitting statements of confidential informant contained in audio-tape of conversation between defendant and confidential informant, even though confidential informant failed to testify at trial. No Sixth Amendment violation occurred, where instant statements were used to provide necessary context for defendant’s own admissions contained in audio-tape. Also, Dist. Ct. did not err in failing to give missing witness instruction relating to failure of confidential informant to testify, where defendant failed to show that confidential informant would have given helpful testimony.

Dist. Ct. did not err in sentencing defendant to 151-month term of incarceration on drug distribution charge, where Dist. Ct. also determined that defendant was career offender under section 4B1.1 of USSG based on his two prior convictions for aggravated fleeing from police. Ct. rejected defendant’s contention that instant within-guideline sentence was not presumptively reasonable because said guideline was not developed through use of Sentencing Commission’s traditional empirical approach, but rather through recognition of congressional mandate in 18 USC section 944(h). Ct. further noted that instant sentence was subjectively reasonable, where Dist. Ct. noted need to protect public from defendant’s propensities for violence and impulsive behavior.

In prosecution on drug distribution charge, defendant forfeited issue alleging that prosecutor violated Batson by using peremptory challenge to strike juror on basis of her religious commitment when defense counsel failed to properly preserve issue for review. Batson covers only use of peremptory challenges based on either race or gender, and defendant otherwise failed to specifically state to Dist. Ct. that he was raising Batson challenge based on juror’s religion. Also, while defense counsel mentioned juror’s religion when challenging govt. use of its peremptory challenge, he did so in context of asserting that actual motivation of prosecutor was based on juror’s race. Moreover, defendant could not prevail on any plain error standard where prosecutor’s religious commitment explanation was paired with another neutral factor that would not have posed Batson problem if raised on its own.