Criminal Law

In prosecution on attempted drug distribution charges, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of 13 kilograms of cocaine found in closet of defendant’s apartment, even though defendant argued that his niece lacked authority to grant consent to police to search his apartment. While question was close, police had reasonable belief that niece had authority to consent to police search of said apartment where: (1) niece had key to open defendant’s apartment and regularly used key to take care of defendant’s son; and (2) cocaine was found in closet where niece would have found son’s clothes when preparing son for school. Ct. also noted that defendant reposed unusual degree of trust with niece, which served to support finding that niece had authority to consent to police search of apartment.

In prosecution on wire and commodity fraud charges stemming from scheme in which defendant and another trader purchased and sold customers' futures' contracts non-competitively so as to produce monetary gains for defendant once defendant sold said contracts at prevailing market price, Dist. Ct. erred in denying defendant's request to admit deposition transcript of other trader involved in disputed transactions where said trade had died prior to trial. Defendant was entitled to new trial since said transcript was admissible under Rule 804(b)(1) where: (1) CFTC, which ran subject deposition, was essentially same party as Justice Dept., which represented U.S. in instant case; and (2) CFTC had opportunity and similar motive in deposition to develop trader's testimony regarding actions taken by defendant and trader regarding customers' futures contracts. Moreover, error was prejudicial since testimony in transcript corroborated defendant's account of timing of trades that formed essential portion of defendant's defense.

Dist. Ct. did not err in sentencing defendant to 60-month term of incarceration on conspiracy to sell fake documents charge even though applicable guideline range was 37-to-46 month term of incarceration. While defendant argued that Dist. Ct. did not offer sufficient explanation to impose above-guideline sentence, Ct. found that Dist. Ct. rendered sufficient explanation where Dist. Ct. noted that defendant had produced 2,800 fake documents, which was 28 times highest number that triggered highest guideline sentence, and further found existence of other aggravating factors such as defendant's marketing of software for producing more counterfeit documents so as to justify instant sentence.

Dist. Ct. did not err in denying defendant's habeas petition challenging his 151-month term of incarceration on fraud and money-laundering offenses, based in part on enhancement under section 3B1.1(a) of USSG where defendant argued that his trial counsel was ineffective for abandoning his objection to such enhancement during sentencing hearing. Record showed that trial counsel did not abandon said objection where counsel registered objection to said enhancement in writing, never withdrew it, continued to argue for lower offense level and affirmatively stated he was not waiving any objection. Moreover, record showed, if anything, that defendant's appellate counsel failed to raise enhancement issue on direct appeal, yet defendant was not entitled to any habeas relief since defendant did not challenge his appellate counsel's effectiveness.

In prosecution of charge of soliciting third-party to murder defendant's ex-girlfriend, Dist. Ct. did not err in admitting uncharged bad acts, including: (1) orders of protection that ex-girlfriend had placed against defendant; (2) hiring another individual to throw caustic liquid in ex-girlfriend's face; (3) monitoring ex-girlfriend and recording her telephone calls; (4) hiring another individual to shoot girlfriend; (5) supplying crack to third-party to entice him to shoot ex-girlfriend; and (6) recruiting another individual to retrieve gun used in attempted shooting of ex-girlfriend. Said evidence was admissible to establish defendant's intent and motive to kill ex-girlfriend and was sufficiently close in time and was similar in nature to justify its admission. Fact that said evidence left jury with impression that defendant wanted to kill ex-girlfriend and had generated plan to kill her merely arose from jury's permissible uses of said evidence and did not constitute improper propensity evidence.