Criminal Law

Dist. Ct. did not err in denying defendant's habeas petition that challenged his state-court robbery-related convictions on ground that trial court improperly disqualified his retained counsel prior to trial, where record showed that: (1) retained counsel had also been appointed (for six-week period) to represent co-defendant on same charges in separate trial; (2) prosecution listed co-defendant as potential witness in defendant's trial; and (3) co-defendant initially refused to provide unconditional waiver of conflict of interest arising out of retained counsel's representation of co-defendant. Under Wheat, 486 U.S. 153, trial court has discretion to disqualify counsel to avoid serious risk of conflict of interest, and fact that co-defendant appeared on prosecution's witness list posed such risk, where retained counsel could potentially use confidential information gathered from his representation of co-defendant when cross-examining co-defendant. Fact that co-defendant never testified at defendant's trial did not require different result.

Dist. Ct. did not err in denying defendant's habeas petition under section 2241, even though defendant argued that prosecutor violated Brady by failing to turn over evidence that would have shown that government witness had misrepresented results of polygraph examination in defendant's underlying trial on charge that defendant paid third-party to kill potential witness in federal criminal case. Record showed that: (1) defendant had filed and lost direct appeal and filed and lost initial section 2255 habeas petition in 2005; and (2) Eighth Circuit Court of Appeals denied appeal of denial of section 2255 habeas petition, as well as defendant's request to file successive section 2255 petition that raised instant Brady violation. Denial of section 2241 petition was appropriate, where defendant could not show that instant Brady claim could not have been decided in section 2255 petition, and fact that defendant did not succeed in his initial section 2255 petition did not make section 2255 remedy ineffective. Also, instant 15-year delay between discovering witness' alleged misconduct and first making instant Brady claim under section 2241 petition precluded defendant from obtaining any relief on said claim.

In prosecution on various sex trafficking/prostitution-related charges in which two Chinese-national women testified that defendant lured them to U.S. and forced them into committing sex acts with her spa customers, Dist. Ct. did not abuse its discretion in admitting testimony of two Department of Homeland Security agents that contained out-of-court statements made by others during agents' investigation. Said statements were not hearsay, since they were offered only to establish course of agents' investigation, rather than truth of matters asserted, and jury was otherwise admonished to consider said statements only for limited purpose of explaining investigation. Record also contained sufficient evidence to support jury's guilty verdict on charge that defendant trafficked said women to force their labor, where graphic nature of women's testimonies established that defendant confiscated their passports, threatened to deport them, withheld their wages and subjected them to constant monitoring. Record also supports defendant's 360-month term of incarceration that was based, in part, on imposition of enhancements under sections 2H4.1(b)(4)(B), 2G1.1(c)(1) and 3C1.1 of USSG, where defendant: (1) transported said women to U.S. for purposes of having them provide sex services in Indiana; (2) placed said women in fear of physical, financial and psychological harms; and (3) provided false testimony in affidavit that was read at trial.

Government did not violate Double Jeopardy Clause of 5^th Amendment, when it tried defendant for second time on attempted-murder charge, under circumstances where defendant was acquitted in first trial of murder charge, but jury could not reach unanimous verdict on instant attempted murder charge that arose during same encounter as murder charge. Instant encounter was captured on video, which indicated that defendant had shot attempted-murder victim twice and then shot murder victim. While defendant at first trial used successful self-defense claim in murder charge, jury could have readily found that defendant had no justification for shooting attempted murder victim. Moreover, Ct. rejected defendant's claim that first jury's finding that he had acted in self-defense in killing one victim necessarily applied to his encounter with attempted-murder victim, so as to prevent instant re-trial on attempted murder charge. Also, under Currier, 138 S.Ct. 2144, courts are to read acquittals for least that they establish, as opposed to most that they might represent. Too, defendant's trial counsel was not ineffective for failing to vigorously impeach at second trial testimony of attempted-murder victim, where differences in his testimonies were only subtle, and where any failure to impeach said witness was not prejudicial where actual encounter was captured on video.

In prosecution on charge of unlawful possession of firearms, Dist. Ct. did not err in sentencing defendant to 41-month term of incarceration based, in part, on imposition of enhancement under section 2K2.1(b)(6)(B) of USSG, where Dist. Ct. found found that defendant possessed said firearms in connection with felony offense of methamphetamine trafficking. While defendant argued that enhancement was improper, because he was acquitted of drug distribution charge, sentencing court may consider acquitted conduct if its findings are supported by preponderance of evidence. Moreover, there was sufficient evidence to support Dist. Ct.'s finding under said standard, where: (1) firearms and methamphetamine were found in basement of defendant's former residence, under circumstance where owner of house testified that basement was defendant's domain; (2) defendant admitted to dealing in methamphetamine; and (3) most of defendant's belongings were still present in basement at time police discovered firearms and methamphetamine. Also, defendant failed to establish any prejudice arising out of imposition of instant enhancement, where Dist. Ct. indicated that it would have imposed same sentence regardless of applicable guideline range.

Dist. Ct. did not err in dismissing defendant's section 2255 habeas petition that challenged validity of his convictions under 18 USC section 924(c) for use of firearm during underlying crime of violence. Record showed that defendant had received seven concurrent life sentences for crimes related to deadly kidnapping scheme, as well as consecutive 45 year-imprisonment for his section 924(c) convictions. As such, instant denial was appropriate under harmless error grounds, since: (1) any error in his section 924(c) convictions would not have effected his seven life sentences for other crimes, which were not contested in instant habeas petition; (2) defendant had not established that he would suffer any concrete, non-speculative collateral consequences if Ct. of Appeals declined to reach merits of his habeas claim; and (3) defendant failed to show that there were any consequences affecting his "custody" for purposes of seeking habeas relief. (Dissent filed.)