Criminal Law

Dist. Ct. did not err in reducing defendant’s life sentence on drug and firearm convictions to 420-month term of incarceration, where defendant had sought sentence reduction under First Step Act, even though defendant had argued that he was entitled to much larger reduction due to intervening Supreme Court decision in Mathis, 579 U.S. 500, which, if in force at time of defendant’s sentencing, would have produced Guideline range of between 210 and 262 months of incarceration. While both government and Dist. Ct. held belief that defendant was legally entitled to lower sentence, Dist. Ct. could properly find that reduction to only 420-month term of incarceration was warranted, where examination of section 3553(a) factors indicated that defendant had extensive criminal history, and where defendant had engaged in extensive drug operation at issue in charged offenses that included possession of four firearms and ammunition. Ct. also rejected defendant’s argument that his reduced sentence constituted unwarranted disparity with respect to reduced sentence that co-defendant had received under First Step Act, where disparity could be explained by difference in section 3553(a) factors applicable to both defendant and co-defendant.

In action by Trustee who prevailed against third-party entity via $578,366,822 default judgment and initiated post-judgment supplemental proceedings against defendant-Director of said entity, where Trustee alleged that it was entitled to sue defendant directly for embezzlement debt he owed to entity, and where defendant had embezzled $1,948,670.79 from entity to fund defendant’s expensive wine purchases for defendant’s personal use, Dist. Ct. did not err in applying seven-year statute of limitations for supplementary proceedings instead of five-year limitation period for embezzlement claims. Moreover, Dist. Ct. did not err in granting Trustee’s motion for turnover order without conducting evidentiary hearing, where: (1) defendant, in response to Trustee’s turnover motion, failed to present evidence creating issue of fact that would necessitate hearing; (2) defendant’s affidavit was insufficient to refute Trustee’s showing that defendant used entity’s funds to buy wine for his own use; and (3) defendant never asked for evidentiary hearing. Also, Dist. Ct. could properly use preponderance of evidence standard, as opposed to clear and convincing standard, to establish defendant’s embezzlement of entity’s funds. Ct. rejected defendant’s claim that evidence did not support Dist. Ct.’s finding that he had embezzled funds from entity.

Dist. Ct. erred in dismissing defendant’s indictment, alleging that defendant failed to comply with Sex Offender Registration and Notification Act (SORNA), where defendant, who had Minnesota conviction on charge of fourth-degree criminal sexual conduct for groping 14-year-old daughter, moved to Wisconsin and failed to register as sex offender. While Dist. Ct. based dismissal on finding that section 20911(5)(A)(ii) of SORNA was misaligned with defendant’s Minnesota conviction with respect to SORNA’s definition of “sex offense,” Ct. of Appeals found that Dist. Ct. erred in analyzing provisions of SORNA under categorical analysis, and that Dist. Ct. should have used circumstance-specific analysis, which requires Dist. Ct. to look to specific way in which defendant committed Minnesota crime to determine whether his Minnesota conviction qualifies as predicate offense for purposes of requiring defendant to register as sex offender under SORNA. (Dissent filed.)

Dist. Ct. did not err in sentencing defendant to above Guidelines, 72-month term of incarceration on charge of unlawful possession of firearm by felon, where said sentence was based, in part, on enhancement under section 2K2.1(b)(6)(B) of USSG, where Dist. Ct. found that defendant possessed firearm in furtherance of another felony, i.e., felony possession of drugs. While defendant argued that Dist. Ct. abused its discretion in applying instant enhancement, Dist. Ct. could properly find that defendant’s handgun found in bag with other drugs facilitated his drug possession, where: (1) defendant chose to carry loaded gun with drugs in public and then fled with gun when confronted by police; and (2) record showed that instant handgun emboldened defendant to possess drugs in public and in known drug-trafficking area. Moreover, Dist. Ct, could properly impose above Guideline sentence, where, during his arrest, defendant made overt attempt to shoot arresting officer, and where defendant had extensive criminal history that included string of convictions involving drugs and firearms.

Dist. Ct. did not err in denying defendant’s request for compassionate release under 18 USC section 3582(c)(1)(A) based on recent amendment to First Step Act that would have produced sentence that was 45 years less than his current 110-year sentence if it was in effect at time of his sentencing, and on fact that his prison record showed extraordinary rehabilitation. First Step Act provisions could not help defendant where said provisions that would have produced lower sentence applied only prospectively. Moreover, prisoners may not use section 3582(c)(1)(A) to navigate around Congress’s express choice in First Step Act not to make relevant provisions retroactive. Also, plaintiff’s exemplary behavior in prison, by itself, did not qualify as extraordinary and compelling reason to warrant his early release after having served 21 years on his sentence.

In prosecution on kidnapping charge, Dist. Ct. did not err in denying defendant’s challenge to prosecutor’s use of peremptory challenge to excuse two African-American jurors, under circumstances where resultant jury contained no African-American jurors. While defendant established prima facie case for Batson violation, defendant failed to show that prosecutor’s explanation for use of said challenges, i.e., that one juror was “too stoic” after hearing criminal allegations, and other juror had eyes closed during voir dire and seemed to have trouble hearing, were pretexts for race discrimination. Also, Dist. Ct. did not err in: (1) denying defendant’s motion to exclude testimony from three experts, where, according to defendant, government failed to provide sufficient evidence to establish that methods of testing and/or their conclusions were generally not accepted by scientific community; (2) allowing 12-year old victim to testify via closed-circuit television from another room within courthouse after victim attempted to take witness stand, but then broke down after seeing defendant and then left courtroom and collapsed in hallway; (3) denying defendant’s motion for mistrial after prosecutor stated during closing argument that he apologized for fact that victim did not want to be in same courtroom as defendant, where evidence overwhelmingly established defendant’s guilt; and (4) imposing $87,770 restitution order that included projected costs for victim for necessary medical and related professional services for psychiatric and psychological care over eight-year period of time.