Criminal Law

In prosecution on unlawful sale of firearm charge, prosecutor did not err in denying defendant’s request to offer co-defendant immunity against any potential perjury charge arising out of co-defendant’s testimony under circumstances where: (1) co-defendant, who had already pleaded guilty to said charges, but was awaiting sentencing, gave prosecutor inconsistent statements with respect to defendant’s role in controlled purchases of firearms; and (2) co-defendant asserted his Fifth Amendment rights by refusing to testify after prosecutor informed defendant that co-defendant gave recent statement favorable to defendant. Defendant failed to show that prosecutor intended to distort judicial fact-finding process by denying defendant’s request for issuance of immunity for co-defendant, where, as here, prosecutor held reasonable belief that co-defendant might perjure himself. Moreover, defendant failed to show any prejudice arising out of said denial where jury was able to view videotapes of controlled purchases to determine defendant’s role in said sales.

Dist. Ct. did not err in denying defendant's motion for reduction of sentence under 18 USC section 3582(c)(2), even though Sentencing Commission retroactively reduced guideline range for crack cocaine offenses, where defendant was originally sentenced as career offender on crack cocaine offense. Under Forman, 553 F3d 585, defendant, as career offender, was not eligible for reduced sentence under section 3582(c)(2), even though defendant had received downward departure under section 5K1.1 of USSG for giving substantial assistance to govt. that placed his eventual sentence within range for instant crack cocaine offense, which would have applied to defendant in absence of career offender designation. Ct. found that for purposes of section 3582(c)(2), relevant sentencing range is sentencing range that was calculated before he received benefit of downward departure.

In prosecution on drug conspiracy charge, Dist. Ct. did not err in denying defendant's motion to suppress statements elicited after defendant was arrested while conducting counter-surveillance for truck transporting large quantity of marijuana. While defendant argued that police lacked probable cause to stop and arrest him, police had probable cause to arrest defendant on drug conspiracy charge where, at time of arrest: (1) police had been aware that truck had recently been loaded with 500 kilograms of marijuana: (2) police viewed truck leave building with defendant's vehicle traveling approximately one car length behind; (3) both vehicles proceeded the same distance apart for approximately 20 minutes, making multiple turns and traveling in remote areas where it was unlikely to see two vehicles at same time; and (4) defendant was observed checking mirror, talking on mobile phone and looking back at unmarked police vehicle. Ct. also rejected defendant's claim that search of his vehicle after his arrest violated Gant, where Ct. found that it was reasonable to believe that evidence relevant to instant drug charge might be located in defendant's vehicle.

Dist. Ct. did not err in denying defendant's motion to suppress inculpatory statements about possession of child pornography that defendant made in public laundry room in apartment complex while police were executing search warrant on defendant's apartment. Dist. Ct. could properly conclude that defendant was not in custody at time he gave subject statements where statements were made in public venue in which defendant was free to leave, and where police, after informing defendant of his Miranda rights, told him that he was not under arrest, and that if he wanted to talk to them, he needed to do so voluntarily. Record also showed that defendant voluntarily waived his Miranda rights where defendant acknowledged familiarity with said rights and deliberated before finally signing waiver.