Criminal Law

In prosecution on drug conspiracy charge involving crack and cocaine sales, Dist. Ct. did not commit reversible error in admitting evidence of uncharged marijuana sales involving defendant, even though defendant argued that said evidence violated Rule 404(b) as evidence of uncharged “bad acts.” While govt. did not assert valid purpose for said evidence, any error was harmless given weight of evidence from others who testified that defendant supplied them with huge quantities of cocaine and that defendant actively participated in packing and transporting drugs and drug proceeds throughout conspiracy. Moreover, Ct. noted that marijuana evidence was essentially cumulative to evidence of defendant’s crack and cocaine sales.

In prosecution on drug conspiracy charge stemming from incident in which defendant, along with others including govt. undercover agents, went to location and unloaded one ton of marijuana hidden in truck, Dist. Ct. erred in denying defendant’s request for jury instruction on lesser included offense of simple possession of marijuana. Record showed that issue of intent to distribute large quantity of marijuana was in dispute where defendant presented some evidence of abandonment after he assisted others in unloading truck by simply walking away without receiving any money or drugs for his services. Ct. rejected govt. argument that evidence of possession of large quantity of drugs without intention to use it requires finding of intent to distribute. Dist. Ct. also erred in failing to give entrapment instruction where: (1) defendant, who was unconnected to others at scene, was not predisposed to commit drug conspiracy; (2) defendant initially refused to unload truck once he became aware of its contents; and (3) defendant acquiesced to unloading truck only after undercover govt. agents (including defendant’s landlord) demanded that he assist them in unloading truck. Fact that defendant had failed to present evidence of extraordinary inducement did not require different result where, as here, govt. failed to present evidence of predisposition to commit charged offense.

Dist. Ct. erred in sentencing defendants to 200-month and 170-month terms of incarceration on charge of conspiracy to distribute more than 400 grams of substance containing fentanyl, where said sentences were based on drug quantity calculations in which Dist Ct. improperly multiplied enhanced number of retail doses of fentanyl substance by 2.5 to 1 ratio mentioned in applicable guidelines. Thus, Dist. Ct. should have calculated defendants’ guideline ranges on basis of defendants’ actual sales, and then adjust sentences to reflect considerations not taken into account by 2.5 to 1 ratio, such as many more retail doses that quantity of fentanyl produces than same quantity of heroin.

Dist. Ct. did not err in sentencing defendant to mandatory life sentence on drug conspiracy charges based on defendant’s prior two state felony drug convictions. Ct rejected defendant’s argument that Fair Sentencing Act of 2010 (FSA), which would have provided for a 10-year mandatory minimum sentence, should have been applied to his case, which was pending on appeal at time of Act’s enactment. It also rejected defendant’s claim that his life sentence violated his 5th and 8th Amendment rights because mandatory life sentence was arbitrary when compared to potential sentence under FSA, and because said sentence for instant charged offense constituted cruel and unusual punishment.

In prosecution on charge of attempt to distribute drugs arising out of sting in which defendant-police officer assisted undercover agents to obtain and distribute drugs by providing look-out services during said drug transactions, Dist. Ct. did not err in denying defendant’s request for entrapment instruction where defendant presented no evidence to suggest that he was not predisposed to commit crime, and where defendant demonstrated no reluctance in accepting attractive, but reasonable compensation for his services. Ct. further rejected defendant’s defense of public authority or entrapment by estoppel arising out of his claim that he was attempting to run his own sting operation on undercover agent where defendant failed to show that someone in authority had previously authorized his actions.

In prosecution on charges of attempt to entice minor to engage in sexual activity and obstruction of justice based on defendant’s attempt to have others destroy his electronics with intent to deprive govt. of its use, Dist. Ct. did not commit reversible error in admitting series of four photographs of suspected child pornography and over 150 profile pictures of young women. While said evidence was potentially admissible with respect to instant obstruction charge since said images were located either on defendant’s computer or storage disks that defendant had attempted to have others hide prior to govt. execution of search warrant, Dist. Ct. should have conducted weighing exercise to determine whether said evidence was unfairly prejudicial. However, any error was harmless given telephone calls from defendant seeking to have his computer and storage disks removed from his home, as well as instant messages, defendant's own video and police surveillance of defendant that established defendant’s conversations with purported minor and his travel to agreed upon location for purpose of having sex.

Dist. Ct. erred in sentencing defendant to 37-month term of incarceration on wire fraud charge arising out of scheme by defendant and others to defraud mortgage companies to loan money to purchase properties that had inflated values. While record reflected that Dist. Ct. exercised its discretion in failing to reduce defendant's within-guideline sentence based on his cooperation with govt., remand was required when Dist. Ct. failed to explain basis for its finding that defendant, who acted as straw purchaser of seven properties, was responsible for $1,792,000 in losses to mortgage companies. Moreover, Dist. Ct. erred in rejecting defendant's request for minor role adjustment where Dist. Ct. based denial on finding that defendant played necessary role in scheme and that defendant repeated his role to assist others in scheme, since person playing necessary role could still be minor participant in said scheme.

Dist. Ct. did not err in partially denying defendant's motion to suppress certain statements made to police officers, as well as physical evidence seized after traffic stop for speeding and after police dog alerted police to presence of drugs in defendant's car. Defendant conceded that police made lawful initial stop and pat-down of defendant, and Ct. rejected defendant's claim that officer could not remove cocaine base found in defendant's pocket to inspect it where officer testified that he was unsure that hard lump in defendant's pocket was not weapon. Moreover, Dist. Ct. could properly find that statements defendant initiated with police officers after his arrest were voluntary and admissible even under circumstances where defendant had not been given Miranda warnings by time of said statements since defendant had not been previously subjected to coercive interrogation at time of volunteered statements.