Criminal Law

In prosecution on drug conspiracy charge, Dist. Ct. did not commit plain error in disqualifying defendant's retained counsel where govt. claimed that defendant's counsel posed potential conflict of interest where counsel could be called as witness on behalf of govt. in support of govt. theory that instant drug sales accounted for source of defendant's $25,000 cash retainer. Potential of defense counsel testifying at trial qualified as actual conflict of interest that permitted Dist. Ct. to disqualify counsel regardless of any offer by defendant to waive conflict. Fact that counsel did not actually testify at trial was immaterial, and Ct. rejected defendant's claim that disqualification was erroneous since govt. could have established source of retainer fee from another witness.

Dist. Ct. did not err in sentencing defendant to 18-month term of incarceration, plus 20 years of supervised release on charge of failure to register as sex offender in violation of SORNA. Dist. Ct. could properly classify defendant as Tier III offender based on underlying offense of forcible sodomy committed by defendant while was in military, even though Dist. Ct. made said finding by employing modified categorical approach that included consideration of charging instrument for underlying offense. Moreover, defendant's sentence was reasonable given fact that defendant had repeatedly failed to register as sex offender.

Dist. Ct. did not err in sentencing defendant to 210-month term of incarceration on felon in possession of firearm charge, after finding that defendant was eligible for treatment as armed career criminal based in part on prior burglary conviction. While defendant argued that Dist. Ct. did not look beyond fact that he had burglary conviction to determine that said conviction qualified as violent felony, record supported Dist. Ct.'s determination where defendant's burglary concerned his entry into grocery store.

Dist. Ct. did not err in denying defendant's habeas petition challenging his wire fraud/theft of honest services conviction on ground that, under Skilling, 130 SCt 2896, his jury instructions were defective because they permitted jury to convict him without finding existence of bribe or kickback. Defendant waived instant argument as to certain instructions since he proposed some of disputed instructions that were given by Dist. Ct. Moreover, Dist. Ct. could properly find on collateral review that defendant defaulted instant argument under "cause and prejudice" standard where: (1) nothing precluded defendant from making instant argument in Dist. Ct so as to explain his failure to raise instant argument in Dist. Ct.; and (2) defendant failed to show that he was actually innocent of wire fraud charge under standards set forth in Skilling since record compellingly established that defendant had received substantial payments from third-parties, and since jury could find that said payments were bribes.

Dist. Ct. did not err in sentencing defendant to 120-month term of incarceration on felon in possession of firearm charge, even though said sentence was based in part on Dist. Ct.'s consideration of drug-selling conduct for which defendant had been acquitted. Ct. of Appeals rejected defendant's claim that, for purposes of sentencing, consideration of conduct for which he had been acquitted is unconstitutional, and instead found that defendant's rights were not violated when govt. relitigated acquitted conduct at sentencing under lower burden of proof.

Dist. Ct. did not err in sentencing defendant to 60-month term of incarceration on charge of attempted extortion based on defendant's demands for bribes and other considerations in exchange of his recommended approval of liquor license applications arising out of his position as deputy liquor commissioner, where Dist. Ct. imposed 4-level enhancement under section 2C1.1(b)(3) of USSG. While defendant argued that enhancement was improper since he was neither high-level decision-maker nor person in sensitive position, Ct. of Appeals found that said enhancement was proper because defendant exercised substantial influence with respect to issuance of liquor licenses by mayor that qualified him for enhancement as person in sensitive position. Moreover, Dist. Ct. did not err in imposing above-guideline range sentence where record showed that defendant continued to collect unemployment after he was discharged and after he was found guilty of instant charge, and where defendant used his position in attempt to obtain sexual favors as precondition for obtaining license.

Dist. Ct. did not err in granting govt.'s petition to revoke defendant's supervised release arising out of his conviction on charge of possession of child pornography, where revocation was based on defendant's possession of 37 photographs of female erotica and certain photographs of high school girls at car wash, as well as his conduct in spending unsupervised time with infant girl. Defendant's possession of said photographs, as well as his time spent with infant constituted violations of his supervised release even though defendant posed innocent explanation for said violations.