Criminal Law

Record failed to contain sufficient evidence to support defendant's conviction under 18 USC section 2422(b) on charge of using any facility of interstate commerce to induce minor to engage in prostitution or any sexual activity for which any person could be charged with criminal offense, where basis for said conviction was defendant's act of masturbating in front of web cam and inviting police officer, who was posing as minor and watching defendant on computer screen, to do likewise. Sex acts that do not involve physical contact between two people are not covered under section 2422(b).

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant's request for Franks hearing to contest alleged misleading omission of fact by officer to obtain search warrant for defendant's home. While officer did not specify in warrant application quantity of marijuana found in defendant's trash, fact that officer had only recovered small flake of marijuana leaf in trash would not have upset state court's finding of probable cause to search defendant's home where other facts, including informant's observation that seven men had arrived and stayed only briefly at defendant's home, increased likelihood that defendant was involved with drugs found in his trash.

In prosecution on bank robbery charge, Dist. Ct. did not err in admitting testimony from defendant's sister and ex-girlfriend indicating that defendant was individual shown in still photograph generated from bank's video of bank robbery. While defendant argued that said testimony should have been excluded as impermissible lay opinion evidence, said evidence was admissible where witnesses had sufficient foundation for making said identification, and where witnesses' testimony assisted jury in determining identity of culprit and debunking defendant's claim that his uncle was real perpetrator. Dist. Ct. also did not err in admitting handwritten demand note found in defendant's car even though govt. did not argue that said note was actual note used in bank robbery since note's admission was solely for purpose of establishing that it was recovered from defendant's car.

In prosecution on various drug conspiracy and firearm charges stemming from police sting calling for robbery of non-existent drug house, Dist. Ct. did not err in sustaining govt.'s hearsay objection to defendant's attempt to elicit from police officer portions of defendant's own post-arrest statement that was not brought during officer's direct testimony. Officer could properly testify as to portions of defendant's post-arrest statement when testifying on behalf of govt. since defendant's statements qualified as exception to hearsay rule as party admission under Rule 801(d)(2)(A). Defendant, though, could not elicit during cross-examination other portions of same statement since Rule 801(d)(2)(A) did not provide exception for defendant seeking to introduce his own prior out-of-court statement for truth of matters asserted in said statement. Moreover, doctrine of completeness did not otherwise require that defendant be permitted to introduce said evidence where proffered testimony did not serve to explain admitted portion of his out-of-court statement.

Record contained sufficient evidence to support jury's guilty verdict on charge that defendant attempted to persuade, induce or entice minor to engage in sexual activity in case arising out of Internet sting operated by police officer posing as 16-year old female victim. Record contained evidence of defendant's intent to violate charged offense where chat transcripts indicated that defendant asked victim about her personal appearance and about her willingness to engage in oral sex, as well as made arrangements to meet victim and traveled to the scheduled meeting place. Moreover, Ct. found that govt. was not required to prove defendant's intent to engage in sexual activity, although it noted that said evidence was probative on relevant issue regarding his intent to persuade victim to engage in sexual activity.

Dist. Ct. did not err in sentencing defendant to 40-month term of incarceration on charge of illegal re-entry into US after having been deported even though Dist. Ct. erred in referring to defendant's two prior arrests that did not lead to any conviction since record lacked any factual detail with respect to said arrests. However, any error was harmless where Dist. Ct. focused on defendant's prior drug trafficking conviction to explain basis for instant sentence, which was otherwise below applicable guideline range.