Criminal Law

In prosecution on drug distribution charge, Dist. Ct. did not commit plain error in allowing supervisor to testify about identity and quantity of drugs by reading parts of subordinate's report containing results of tests conducted by subordinate that indicated that drug that was purchased from defendant during controlled purchase was methamphetamine. While law is unclear as to whether supervisor could properpy testify from subordinate's report, any error was harmless where other properly admitted evidence in form of video-recordings of controlled purchases involving defendant amply supported instant guilty verdict.

In prosecution on drug conspiracy charge, Dist. Ct. did not err in denying defendant’s motion to suppress his confession, where said confession was given 16 hours after defendant’s arrest but before he was taken to magistrate judge for his initial appearance, and where defendant claimed that such confession was taken in violation of prompt presentment rule found in Fed. R. Crim. 5(a) and in violation of McNabb and Mallory decisions. Defendant signed written waiver of his Rule 5(a) right to prompt presentment, and although instant confession was taken beyond six-hour safe haven found in 18 USC section 3501, defendant waived any remedy for police failure to prompt present him to magistrate judge.

Dist. Ct. did not err in sentencing defendant to 360-month term of incarceration after defendant had pleaded guilty on two counts of producing child pornography involving 3-year-old daughter of defendant’s girlfriend. While defendant argued that sentence was unreasonable since Dist. Ct. sentenced him to statutory maximum in spite of fact that defendant had stable employment, had lacked any prior conviction and had experienced abusive childhood, Ct. found that maximum sentences are not reserved for worst offenders. Moreover, Dist. Ct. could impose instant sentence where Dist. Ct. relied on need for just punishment and need to protect others from defendant’s future offenses. Ct. also rejected defendant’s claim that Dist. Ct. improperly speculated about sex offender recidivism rates and about severity of damage suffered by sex-abuse victims.

In prosecution on drug conspiracy charge, Dist. Ct. did not err in denying defendant’s motion to suppress drugs seized from hidden compartment located in cab of defendant’s tractor-trailer after police had stopped tractor-trailer for expired license plate and after police had discovered that defendant had no valid driver’s license and had prior conviction for drug distribution. Defendant consented to search of tractor-trailer without registering any limitation to search at time consent was given, and officer could reasonably determine that drugs could be located somewhere in cab area. Moreover, officer may search for and open hidden compartments in vehicles based on general consent to search vehicle. Fact that police officer used flashlight and screwdriver to remove hidden compartment from alcove in cab did not mandate finding that officer exceeded scope of consent where officer’s actions did not dismantle any functional part of tractor.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his seven mail fraud and RICO convictions where: (1) RICO conviction was based on mail fraud convictions; and (2) Dist. Ct. gave jury instructions in mail fraud charges that, under Skilling, 130 S.Ct. 2896, improperly allowed jury to find that defendant was guilty of honest services fraud even if defendant had not taken any money in exchange for decisions over which defendant had control on behalf of state. However, any error in giving instant jury instruction was harmless where: (1) defendant’s convictions on four tax counts indicated that jury believed that defendant had knowingly accepted payments in exchange for official acts; (2) both defendant and govt. argued to jury that case was one about bribery, as opposed to case about receipt of undisclosed payments that created only conflict of interest for which defendant did not do anything in exchange; (3) jury must have found in mail fraud charges that defendant had actually accepted gifts from others with intent to influence his actions; and (4) such finding would be sufficient under Skilling to support at least two mail fraud charges, as well as resultant RICO charge.

Dist. Ct. did not err in granting defendant’s habeas petition challenging his murder conviction on grounds that his trial counsel was ineffective for failing to call two exculpatory witnesses, who would have testified that third-party acted alone in killing victim. Said witnesses were crucial to defendant’s theory of case, and trial counsel’s explanation that he did not call said witnesses to testify because jury might believe that said witnesses were biased due to fact that they were related to defendant was not legitimate reason for failing to call said witnesses to testify, especially where counsel failed to call any other witnesses on behalf of defendant.

Ct. of Appeals denied defendant’s motion for order authorizing Dist. Ct. to entertain second motion for collateral review where defendant sought to challenge his drug conspiracy conviction on grounds that his trial counsel was ineffective for failing to inform him of pre-trial plea offer from govt. While defendant argued that second petition for collateral relief was appropriate since recent decision in Frye, 132 S.Ct. 1399, supported his claim, Frye decision did not announce new rule and other court decision had supported defendant’s claim at time of first collateral attack. Ct also found that defendant did not timely raise issue where he knew about non-communicated plea offer for eight years.

Dist. Ct. did not err in finding that defendant stated viable claim in his habeas petition that his trial counsel was ineffective in defendant’s murder trial by failing to either interview and/or call as witness two individuals, who asserted that defendant was not at scene of crime at time key witness for govt. stated that she overheard defendant tell others to burn down victim’s apartment building. However, Dist. Ct. erred in granting defendant’s habeas petition without making determination as to whether facts contained in affidavits of defendant’s proposed witness were actually true and/or whether there was other evidence relevant to trial counsel's decision not to call said witnesses. On remand, Dist. Ct. may make required findings based on evidentiary hearing held on defendant’s habeas petition and/or may hold new evidentiary hearing to determine whether trial counsel was ineffective.

In prosecution on charge of conspiracy to transport and sell stolen goods in interstate commerce, Dist. Ct. did not deny defendant his 6th Amendment right to call witnesses by initially misstating that defendant could not subpoena certain witness because witness resided more than 100 miles from District Courthouse. Dist. Ct. eventually indicated that its subpoena power was nationwide, and Defendant's proposed witness would have given only impeachment evidence, which would have been merely cumulative to other testimony. Moreover, defendant was not entitled to mistrial based on testimony of witness that he had smoked marijuana with defendant where jury was admonished to disregard said testimony, and where witness' reference to defendant's alleged bad conduct was brief.