Criminal Law

Record contained sufficient evidence to support defendant’s conviction on charge of engaging in child-exploitation enterprise and imposition of 30-year sentence. Ct. of Appeals rejected defendant’s argument that either due process or 28 USC section 455(a) entitled him to new trial, since, according to defendant, Dist. Ct. should have recused himself based on fact that Dist. Ct. sent ex parte email to U.S. Attorney’s office during defendant’s trial. Under Orr, 969 F.3d 732, defendant would be entitled to new hearing if Dist. Ct. had labored under ethical problem and made discretionary decision that materially affected conviction or sentence. However, two alleged errors raised by defendant that pertained to admission of expert testimony and admission of evidence produced in response to subpoena issued to third-party did not entitle defendant to new trial, where defendant’s failure to adequately raise them in Dist. Ct. precluded Dist. Ct. from making any discretionary decision with respect to either issue. Moreover, different Dist. Ct. made reasonable finding that email, which arguably urged prosecution to get trial underway, had innocent connotation, and defendant’s sentence was imposed by different Dist. Ct. Judge.

In prosecution on drug distribution and firearm charges, Dist. Ct. erred in denying defendant’s motion to suppress drugs and firearm seized by police after police had entered defendant’s apartment for purpose of searching for fugitive. Record showed that police: (1) handcuffed defendant, obtained consent to search his apartment, conducted sweep of defendant’s apartment and failed to locate fugitive; and (2) continued to question defendant while he was still in handcuffs and discovered location of drugs and firearm that formed basis of instant charges. However, police did not have sufficient facts to support finding of reasonable suspicion under Terry to continue to detain defendant after unsuccessful sweep of defendant’s apartment, where police had no objective basis to suspect defendant of criminal wrongdoing other than his presence in same building with some potential connection to fugitive. As such, 4th Amendment violation occurred, since police could not prolong defendant’s detention following sweep of his apartment.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his rape and domestic battery conviction on ground that his trial counsel was ineffective by failing to investigate victim’s medication use and by failing to introduce evidence as to whether defendant used his cell phone during sexual assault as victim claimed. While defendant maintained that had his trial counsel explored victim’s medication use during trial, he could have impeached victim with respect to her recollection of events, trial counsel could properly make reasonable strategic decision not to obtain victim’s medical records, where: (1) victim indicated that any drug consumption did not affect her ability to recall defendant’s assaults; and (2) record showed that victim’s thoughts and speech were clear on night of assaults and during her later conversations with police. Ct. further observed that even if forensic analysis of defendant’s cell phone had been presented at trial, such testimony would not have necessarily been contrary to victim’s testimony and would not have changed outcome of trial. Also, defendant procedurally defaulted six claims of ineffective assistance of counsel, where defendant failed to previously raise them in Indiana state court, and exception to default rule did not apply, since all six claims were not “substantial,” where each claim was either vague, conclusory or underdeveloped.

Record contained sufficient evidence to support defendant’s drug conspiracy conviction, even though defendant argued that record showed, at best, existence of only buyer-seller relationship between defendant and his drug supplier. Jury could properly conclude that coded language between defendant and his drug supplier evidenced existence of course of conduct that involved extension of drugs on credit. Moreover, record supported fact that defendant sold drugs on consignment, that defendant acquired large quantities of drugs, and that defendant and his drug supplier had joint stake in drug operation so as to support drug conspiracy conviction. Also, venue was appropriate in Eastern District of Wisconsin, where defendant committee three overt drug-related acts in said District. Too, while Dist. Ct. abused its discretion in failing to give limiting instruction on admission of bill of lading into evidence, since said admission was on limited basis and not for truth of matters contained in bill of lading, error was harmless where contents of bill of lading did not advance case against defendant. Finally, Dist. Ct. committed plain error in admitting improper bolstering evidence that involved many steps government took to obtain wiretap. However, said error did not require reversal, where evidence against defendant was overwhelming.