Criminal Law

Dist. Ct. did not err in sentencing defendant to 480-month term of incarceration on conspiracy to receive and distribute child pornography charges. Dist. Ct. could properly rely on sentencing range set forth in presentence report and was not required to discuss alternative sentencing ranges in said report. Moreover, Dist. Ct. could look to defendant’s reduced mental capacity as factor that might make him less amenable to rehabilitation and properly rejected defendant’s claim that his sentence constituted unwarranted disparity with others who had received sentences of 17 to 22 years. Ct. also found that instant sentence was substantively reasonable in light of defendant's near blindness and fact that statistics suggested that defendant had low recidivism rate.

Dist. Ct. did not err in denying on jurisdictional grounds defendant’s second motion for reduction of sentence under section 3582(c) based on recent amendment to sentencing guidelines for crack cocaine offenses. Dist. Ct. established at original sentencing hearing that defendant’s relevant conduct involved at least 31 kilograms of crack cocaine, and Dist. Ct. lacked jurisdiction to consider instant motion for reduction since defendant’s original sentencing range was not lowered by recent amendments to sentencing guidelines. Ct. also rejected defendant’s claim that Dist. Ct.’s adoption of original presentence report’s determination of 31 kilograms of relevant conduct was clearly erroneous.

Record contained sufficient evidence to support defendant’s conviction on wire fraud scheme designed to obtain mortgage proceeds from lenders arising out of fake home sales that used fake buyers and sellers. While defendant argued that she merely performed typical actions of real estate lawyer during closing process, and that she lacked necessary intent to defraud, jury could find existence of defendant’s knowledge of scheme and intent to defraud where defendant: (1) helped two individuals purchase five homes in short period of time through use of different lenders at high loan-to-value ratios; and (2) rushed clueless buyers and sellers through closing process and gave mortgage proceeds to third-party. Dist. Ct. also did not err in allowing witness who organized scheme to give opinion that defendant had financial arrangement with third-party in scheme, where said testimony was admissible as lay witness opinion based on his close working relationship with defendant and third-party.

Dist. Ct. did not err in sentencing defendant to 18-month term of incarceration on charge of making false statement to gun dealers where said sentence was based, in part, on fact that prosecutor declined to move for third-level reduction of offense level under 3E1.1(b) of USSG arising out of defendant’s guilty plea. While defendant received two-level reduction, prosecutor could refuse to move for third-level reduction where, as here, defendant refused prosecutor’s request to waive any appeal. Ct. rejected defendant’s contention that motion for third-level reduction was mandatory whenever defendant’s guilty plea comes early enough to spare prosecutor burden of trial preparation, after noting that under Deberry, 576 F3d 708, prosecutor may withhold instant motion for any reason that does not violate Constitution.

Dist. Ct. erred in sentencing defendant to 108-month term of incarceration on possession of child pornography charge where said sentence was based, in part, on enhancement that defendant had in fact distributed said pornography by downloading said pornography through use of two peer-to-peer sharing computer programs. Remand was required since defendant insisted that he did not know that files he downloaded could be viewed by other users of said programs, and Dist. Ct. failed to make required finding that defendant knew or was reckless in failing to discover that downloaded files could be viewed online by others.

Dist. Ct. did not err in granting defendant’s motion for judgment of acquittal after jury found defendant guilty of drug distribution charges arising out of claim that defendant actually manufactured crack cocaine. No witness testified that defendant either possessed or cooked cocaine that formed basis of charged offense, and govt. was unable to establish through its extensive surveillance of residence either how long defendant was inside residence where police claimed crack had been manufactured, or whether defendant was inside residence for sufficient amount of time to manufacture crack. Moreover, remaining circumstantial evidence was insufficient to support instant guilty verdict where contents of telephone recordings contained evidentiary gaps that precluded identification of defendant as individual responsible for making crack, and where any necessary inference to defendant being individual responsible for making crack was based on speculation.

Dist. Ct. did not err in joining defendant’s marijuana and cocaine trafficking cases in same trial, even though defendant argued that said charges were not of similar character because they concerned different types of drugs and involved different time frames. Ct. found that said offenses were properly joined since both sets of crimes concerned drug dealing and constituted similar class of offense. Moreover, defendant was not entitled to severance of charges since defendant provided only general assertion that his trial strategy might have been different had said charges been tried separately. Also, record contained strong evidence of defendant’s guilt as to both sets of offenses given defendant’s confession and his recorded conversations regarding drug deals. Additionally, defense counsel was not ineffective for failing to call witness, who had previously indicated that he would take 5th Amendment if forced to take witness stand, where decision not to call said witness was product of trial strategy that effectively precluded prosecutor from introducing statements from said witness that implicated defendant in charged offenses.