Criminal Law

Dist. Ct. did not err in sentencing defendant to above-guideline, 120-month term of incarceration on fraud charge arising out of pyramid scheme, which resulted in over $4.5 million loss to at least 60 investors. While defendant argued that Dist. Ct. could not rely on 4-level upward adjustment under section 2B1.1(b)(2)(B) of USSG since his scheme only involved 45 victims, defendant waived this argument since he had stipulated in Dist. Ct. that said offense involved more than 50 victim minimum required for imposition of enhancement under section 2B1(b)(2)(B). Moreover, Ct. rejected defendant's argument that sentence was unreasonable where record showed that defendant had exploited his personal relationships with victims over long period of time.

Dist. Ct. erred in sentencing defendant to above-guideline, 30-month term of incarceration on mail fraud charge where said sentence was based in part on Dist. Ct.'s belief that increased incarceration was needed so that defendant could obtain treatment for his mental illness and alcoholism. Remand was required since, under Tapia, 131 SCt 2382, sentencing judge may not increase length of prison term in order to facilitate defendant's rehabilitation.

Dist. Ct. did not err in denying defendant's habeas petition even though defendant argued that his trial counsel was ineffective for failing to properly impeach witness, who claimed that defendant attempted to convince her to provide alibi for murder charge, and for failing to call another witness to establish said alibi. Defendant failed to establish any prejudice arising out of trial counsel's alleged failures where state presented two eyewitnesses, who placed defendant at scene of crime, and where details of proposed alibi were not supported by other evidence in record.

Dist. Ct. erred in summarily denying as untimely defendant-prisoner's motion to vacate his conviction and sentence under 28 USC section 2255 where defendant asserted that he was deprived of right to counsel when his trial counsel allegedly failed to comply with defendant's instruction to file notice of appeal. While there is no hard rule as to how long prisoner may take to discover his or her lawyer's missteps, instant defendant could take at least two months to suspect that his counsel had failed to file notice of appeal so as to start his one-year limitations period and render instant motion timely, where defendant experienced frequent prison transfers at start of his incarceration, and where trial court had failed to notify defendant of time to file any appeal.

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant's motion to suppress drugs found in defendant's truck in driveway of confidential informant. Police had probable cause to search truck where they listened to confidential informant make plans for defendant to deliver drugs, and defendant showed up at home of confidential informant according to said plan. Ct. rejected defendant's argument that police could not view confidential informant as reliable where they had no dealing with informant prior to instant arranged sale. Also, Dist Ct. did not err in limiting defendant's cross-examination of informant with evidence that said informant had violated order of protection involving another female where: (1) said cross-examination consisted of salacious testimony regarding informant's romantic relationship with female partner; and (2) defendant had ample opportunity to impeach informant's credibility and establish informant's bias with other evidence.