Criminal Law

Dist. Ct. did not err in sentencing defendant to 102-month term of incarceration on drug conspiracy and money laundering charges, even though defendant argued that Dist. Ct. erred in failing to apply minor-role reduction under section 3B1.2 of USSG. Record showed that, as part of conspiracy, defendant received drug shipments, maintained storage unit for said drugs, delivered drugs to dealers, collected drug proceeds, and wired proceeds to his brother, who was also part of conspiracy. While defendant argued that minor-role deduction applied, since his part in conspiracy was essentially to transport and store drugs, Dist. Ct. could properly reject defendant’s argument, since defendant’s role in conspiracy was more than mere storing and transporting drug, where he also laundered drug proceeds and was therefore aware of scale of conspiracy. Moreover, even though defendant took direct orders from his brother, Dist. Ct. could properly deem defendant’s role in conspiracy as not substantially less culpable than average participant in conspiracy.

Record contained sufficient evidence to support defendant’s aggravated identity theft conviction, arising out of defendant’s use of another individual’s Social Security number on series of loan and credit applications with local credit union, even though defendant argued that there was insufficient evidence that he knew that Social Security number used on said applications was real. Record showed that defendant used same Social Security number on his applications without owner of number’s consent, and jury could conclude that defendant was aware that said number was real, where he used said number on credit card application and had authorized credit union to conduct credit check using said number, where credit union subsequently informed defendant that he had been approved for said credit card, and where defendant subsequently used said number on other successful applications. Also, Dist. Ct. could properly calculate loss to credit union based on amount of money at issue in each application, even though some of said applications had been denied by credit union.

Dist. Ct. erred in denying defendant’s habeas petition that challenged his 167-month sentence on drug distribution charge, where defendant alleged that his trial counsel was ineffective for failing to challenge sentencing court’s determination that he qualified for career offender treatment under section 4B1.1 of USSG, based, in part, on his two Illinois convictions for unlawful delivery of look-alike substances. While Dist. Ct. found that defendant was properly sentenced as career offender, Ct. of Appeals found that both convictions did not qualify as section 4B1.1(a) predicate offenses for career offender purposes, because relevant Illinois statutes punished conduct more broadly than Guidelines controlled substance offense. As such, defendant should not have been sentenced as career offender, and remand was required to determine his ineffective assistance of counsel claim.

In prosecution on Medicare fraud charge, arising out of defendant’s drafting and submission of fraudulent claims for reimbursement for health services provided to patients who did not otherwise qualify for Medicare benefits or for submitting inflated claims or claims for which no services were provided, Dist. Ct. could properly conclude that government witness’s invocation of Fifth Amendment privilege on witness stand was proper, and that government’s refusal to issue said witness immunity did not distort fact-finding process, even though government had given immunity to other witnesses. Defendant did not show that fact-finding process was distorted, where said witness had initially told authorities about defendant’s role in conspiracy, and defendant could not point to anything else that witness could provide that was clearly exonerating for defendant. Also, record did not support defendant’s claim that witness lacked reasonable fear of future prosecution. However, defendant was entitled to new sentencing hearing, where Dist. Ct. erred in calculating Medicare loss that was attributable to defendant, since only speculation could support Dist. Ct.’s starting presumption that 90 percent of Medicare’s reimbursements to defendant’s employer were fraudulent regardless of which employee had submitted said claims.

Dist. Ct. did not abuse its discretion in denying defendant’s motion for new trial on sex-trafficking charges, even though defendant argued that he was unfairly prejudiced when certain documents taken from his cellphone and Facebook account that were admitted at trial, but not shown to jury was sent in computer with other documents to jury’s deliberation room. Record showed that: (1) after computer was sent to deliberation room, Dist. Ct. and defense counsel became aware that documents that had not been shown to jury had been included in computer; (2) Dist. Ct. immediately removed computer from jury room; (3) jury on same day announced that it had reached verdict; (4) Dist. Ct. told jury that it would have to re-deliberate with “proper evidence;” (5) when jury re-convened on following Monday, Dist. Ct. gave curative instruction telling jury to consider verdict only on evidence used at trial; and (6) jury came back with guilty verdict on all counts one hour later. No Remmer (347 U.S. 227) presumption of prejudice applied, where nothing outside record reached jury, and where there was no evidence that jury actually viewed any documents that defense counsel had identified as potentially prejudicial. Also, Dist. Ct. did not abuse its discretion in denying motion for new trial, where: (1) there was overwhelming evidence of defendant’s guilt; (2) of over 5,000 pages of documents incorrectly provided to jury, it was doubtful that jury actually viewed any of relatively few documents that had been identified by defendant as prejudicial, where jury had computer for less than three hours; and (3) subject-matter of documents identified by defendant was similar to other documents that were properly submitted for jury's consideration.

Dist. Ct. committed plain error by failing to tender to jury buyer-seller instruction in defendant’s trial on drug-trafficking conspiracy charge. Said charge requires showing that defendant had stake in venture, and that there was evidence of agreement to further advance drug distribution beyond initial transaction. Ct. of Appeals found that government’s evidence, at best, showed existence of either conspiracy or buyer/seller relationship, such that failure to tender buyer/seller instruction constituted reversible error that required that defendant be given new trial. Fact that defendant had purchased distribution qualities of heroin for over year and half did not, by itself, create inference of existence of conspiracy.

Record contained sufficient evidence to support jury’s guilty verdict on charges of production and attempted production of child pornography that stemmed from defendant’s possession of videos and pictures that he had created with his cameras of nude minor girls in various sexually-related poses that included pictures of girls’ breasts, vagina and anus. Dist. Ct. did not err in rejecting defendant’s proposed jury instruction that would permit conviction only if government had shown that defendant “caused” minor to engage in sexually explicit conduct and instead instructing jury that defendant could be convicted if evidence showed that defendant “used” minor to engage in sexually explicit conduct for purpose of producing visual depiction of that conduct. Moreover, Dist. Ct. did not err in giving jury instruction on meaning of “lascivious exhibition” that allowed jury to consider defendant’s intent in creating charged images, as opposed to requiring showing that charged images depicted conduct connoting sex acts with minors.