Criminal Law

Ct. of Appeals denied govt.'s motion to stay issuance of Ct. of Appeals' mandate pending govt.'s filing of petition for certiorari challenging Ct.'s reversal of Dist. Ct.'s denial of defendant's habeas petition alleging that his trial counsel was ineffective for failing to file required pre-trial motion seeking admissibility of evidence that alleged victim of sexual assault had made prior false accusations of sexual assault against others. Govt. failed to show reasonable probability either that four justices would grant certiorari petition or that five justices would reverse Ct. of Appeals' judgment. Ct. further noted lack of irreparable injury if stay request is denied given improbability that defendant would be set free during pendency of certiorari petition.

Dist. Ct. did not err in sentencing defendant to 115-month term of incarceration on charge of mail fraud after finding existence of two-level enhancement under section 2B1.1(b)(9)(C) for use of sophisticated means to perpetuate financial scheme. Record supported instant enhancement where scheme covered period of seven years and involved defendant's use of forged documents, fictitious checks and correspondence, as well as forged real estate documents. Defendant also misled several local public officials over same time period. Ct. rejected defendant's argument that enhancement applied only to fraud that had little chance of detection by victims of scheme.

Dist. Ct. did not err in denying defendant's habeas petition seeking to vacate his guilty plea on claim that his counsel was ineffective for failing to file motion to suppress guns seized from defendant's home. While defendant argued that counsel failed to pursue his claim that police officer coerced him to retrieve guns by brandishing weapon, defendant conceded at guilty plea hearing that he voluntarily consented to search of his home. Moreover, record suggested that defendant never told his trial counsel about alleged coercion so as to alert counsel of any potential 4th Amendment claim.

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant's motion to suppress drugs seized from defendant's vehicle that had been tagged by police with GPS device. Under Garcia, 474 F3d 994, installation and use of GPS device does not violate 4th Amendment where said device merely records activity occurring on public street. Moreover, Ct. rejected defendant's argument that use of said device over 60-hour period that covered his trip across country constituted impermissible intrusion on his privacy. (Dissent filed.)

Dist. Ct. did not err in sentencing defendants to above-guideline range sentences on conspiracy charge involving dog-fighting scheme even though Dist. Ct. sua sponte submitted his own report on dog-fighting and entered said report into record as sentencing memorandum. Filing of said memorandum, which contained background material on dog fighting, did not exceed powers of judiciary established in Article III of Constitution, and Dist. Ct. otherwise justified imposition of above-guideline sentences under section 3553(a) based on number of dogs attributed to each defendant and extraordinary cruelty used against said dogs.

Ct. of Appeals granted appointed counsel’s motion seeking guidance on scope of counsel’s representation when prisoner-client seeks to have counsel brief issues that are not contained in certificate of appealability from denial of prisoner’s habeas petition. Counsel has no obligation to argue claims that are not certified for appeal, but may file motion with Ct. of Appeals to expand certificate to include additional claims that counsel believes contain debatable or wrong rulings by Dist. Ct. Moreover, counsel should also file motion with Ct. of Appeals seeking permission not to brief any certified issue that counsel believes should not have been certified. Finally, Ct. rejected appointed counsel’s request to establish Anders-style procedure whenever prisoner in appeal of habeas proceeding disagrees with appointed counsel’s representation about arguments brought before court.

In prosecution on charge of unlawful possession of firearms, Dist. Ct. did not err in denying defendant’s motion to suppress firearms seized in plain view during eviction of defendant from his leased residence. While entry by officers into home is generally considered search, defendant could not establish any 4th Amendment violation since he had no subjective expectation of privacy in residence to which he was occupying unlawfully at time of seizure. Moreover, result might have been different had instant landlord not previously obtained eviction order to which defendant had notice.

Dist. Ct. did not err in denying defendant's section 3582(c)(2) motion to reduce defendant's 174-month term of incarceration on charge of drug conspiracy to distribute crack cocaine after finding that defendant was responsible for in excess of 4.5 kilograms of crack cocaine, since said calculation would not have changed defendant's offense level under new guidelines. Ct. rejected defendant's claim that Dist. Ct. impermissibly made new findings in instant proceeding in order to attribute 4.5 kilograms of crack cocaine to him, or that record did not support Dist. Ct.'s calculation of said drugs.

Dist. Ct. did not err in sentencing defendant to 108-month term of incarceration on multiple charges of misusing Social Security numbers, and aggravated identity theft that involved scheme in which defendant and others obtained personal information to facilitate purchases of items that would eventually be resold. Dist. Ct. could properly impose two consecutive sentences on two separate charges of aggravated identity theft, and overall sentence was reasonable given number of victims, extensive nature of defendant's planning, and harm visited on victims of identity theft. Ct. rejected defendant's claim that sentence was unreasonable in light of his medical impairments, as well as his stated apology to victims.

In prosecution on wire fraud and aiding and abetting wire fraud charges stemming from scheme to defraud investors who purchased CDs in defendant's financial planning entity, Dist. Ct. did not err in denying defendant's motion to suppress incriminating corporate documents that defendant's wife had tendered to govt., even though govt. had failed to obtain search warrant for said documents. Record did not suggest that defendant's wife posed as agent for govt. where govt. had no prior knowledge that wife had been gathering said documents when she unilaterally tendered them to govt. Moreover, Ct. rejected defendant's claim that his wife lacked authority to consent to govt. search of said documents, where record showed that wife had joint custody over subject documents that defendant had tendered to her.