Criminal Law

Dist. Ct. did not err in denying defendant's motion to dismiss his indictment on charge of illegal removal of asbestos under 42 USC section 7413(c)(1), even though defendant argued that govt. was required to prove that he knew his actions were illegal. Prior case law rejected defendant's argument, and indictment was not otherwise required to contain definition of "knowingly." Ct. also found that defendant was barred from asserting as-applied, vagueness challenge to section 7413(c)(1) where defendant raised it for first time on appeal after he had entered into conditional guilty plea.

Record contained sufficient evidence to support jury's guilty verdict on bank robbery charge, even though defendant argued that govt. had failed to prove that any money was taken through intimidation. Record showed sufficient evidence of intimidation where bank teller observed fellow co-worker (who was also accomplice to robbers) becoming afraid as co-worker showed teller demand note, and teller testified that she was afraid that robbers would use force if she did not follow directives in demand note.

Record contained sufficient evidence to support defendant's conviction on charge of attempting, through use of interstate commerce, to persuade minor to engage in sexual conduct, arising out of series of on-line conversations spanning 14-month period of time. While defendant argued that govt. failed to show that he took substantial step towards meeting said minor since defendant did nothing but talk to minor in chat room, jury could conclude that defendant's intent was to meet minor rather than to just talk about sex. Fact that defendant did not travel to meet minor is irrelevant where defendant took steps to groom minor in effort to reduce minor's inhibitions in preparation of minor for sexual activity. Ct. also did not err in admitting transcripts of unrelated conversations with other minors, as well as pornographic pictures sent during said conversations, to prove defendant's intent and absence of mistake with respect to charged offense.

In prosecution on drug distribution and unlawful possession of ammunition charges, Dist. Ct. did not err in limiting defendant's cross examination of key govt. witness who had accepted certain FedEx packages containing marijuana on behalf of defendant, where defendant had attempted to show that said witness played larger role in drug conspiracy than what govt. had otherwise portrayed. Defendant failed to clearly articulate in Dist. Ct. that purpose of disputed cross-examination was to reveal that witness was lying about size and frequency of her package deliveries to defendant, and govt. had already conceded at trial that not all marijuana in one of subject packages was earmarked for defendant. Moreover, any error was harmless given evidence of defendant's receipt of packages that included marijuana quantities that would defeat his claim that he only received marijuana for personal use.

Dist. Ct. did not err in sentencing defendant to 120-month term of imprisonment on five crack distribution counts and one unlawful possession of firearm count even though defendant argued at sentencing hearing that he was victim of vindictive prosecution where govt. sought his conviction on said counts after he had pleaded guilty to separate crack distribution count and received below-guidelines sentence on said count. Defendant failed to establish with objective evidence that any prosecutorial animosity motivated govt. decision to proceed on remaining counts after defendant had entered into guilty plea without any promise not to proceed on said counts. Moreover, fact that decision to proceed on instant counts was made shortly after sentencing on first count was insufficient by itself to establish prosecutorial animosity. Ct. also rejected defendant’s argument that concept of vindictive prosecution should include situations where prosecutor is motivated by desire to have defendant sentenced to significant term of imprisonment.

Dist. Ct. did not err in sentencing defendant to below-guidelines, 24-month term of incarceration on tax evasion charge, even though defendant argued that: (1) govt. materially breached plea agreement when it assented to presentence report’s tax loss calculation that covered losses for uncharged years; and (2) total tax loss found by Dist. Ct. was not proven by sufficient evidence. Language of plea agreement did not limit govt.’s recommendation to tax loss calculations covering charged years, and language in agreement supported proposition that tax losses stated in agreement remained uncertain. Presentence report could also properly rely on 1099s used in civil tax proceeding against defendant to support relevant conduct calculations covering tax losses for uncharged years.