Criminal Law

In prosecution on mail fraud charge stemming from defendant’s setting of fires to several properties in order to collect insurance money, Dist. Ct. did not err in admitting evidence that defendant set six fires, since, although defendant asserted that said fires constituted discrete episodes of alleged criminality that constituted improper character evidence under Rule 404(b), Dist. Ct. could properly find that such evidence was admissible as part of defendant’s mail fraud scheme. Under Davis, 471 F.3d 783, “scheme” is defined as continuing course of conduct during discrete period of time that can involve several acts by actor, playing same role and done in similar way, and Dist. Ct. could properly find instant six fires that included two diversionary fires, which occurred between 2010 and 2013, were part of charged scheme to defraud, where they were similar occurrences designed to defraud insurance company in similar way and took place during relatively short period of time. Also, Dist. Ct. did not err in admitting evidence of fire that occurred in 2004 for purposes of establishing identity and intent, since 2004 fire was particularly similar to 2010-2013 fires, where 2004 fire occurred less than 30 days after defendant's renewal of insurance policy and in same location as one 2013 fire.

Dist. Ct. did not err in dismissing without evidentiary hearing defendant’s section 2255 habeas petition challenging his life sentence under 21 USC section 841(b)(1)(B), after jury found defendant guilty of conspiracy to distribute heroin, and that victim’s death had “resulted from” use of said heroin. Defendant alleged that his trial counsel was ineffective for failing to object to death-results jury instruction that failed to explain that govt. needed to prove that victim would not have died “but for” heroin distributed by defendant. Instant instruction, though, tracked “results from” language from section 841(b)(1)(B) and was accurate statement of law, especially where: (1) defendant’s heroin was only source of heroin consumed by victim; and (2) medical expert testified that ingestion of heroin was cause of victim’s death. Moreover, defendant failed to establish any prejudice arising out of issuance of instant jury instruction, since nothing about defendant’s trial indicated that jury believed that it could hold defendant liable for victim’s death if heroin was only contributing cause of victim’s death. Also, Dist. Ct. could properly reject defendant’s claim that his counsel was ineffective for failing to call expert to suggest that ingestion of .1 gram of heroin at issue in instant case is not lethal, where defendant failed to show that such expert testimony existed.

Dist. Ct. erred in sentencing defendant to 84-month term of incarceration on drug distribution charge, where said sentence was based, in part, on imposition of leadership. Organizer enhancement under 3B1.1(c) of USSG. Record failed to support Dist. Ct.’s finding that defendant served as leader of Minneapolis drug operation, or that defendant managed two others to help him transport drugs at time of defendant’s arrest, where: (1) record showed, at best, that defendant was middleman in Minneapolis drug operation who exercised no control over unknown group of individuals; and (2) record showed that two individuals who assisted defendant in transporting drugs at time of defendant’s arrest actually worked for another individual, and that defendant did not actually control said individuals. Fact that defendant was given below-guidelines sentence did not preclude instant remand for new sentencing hearing, where record did not indicate what Dist. Ct. would have done had it considered correct guideline range without imposition of instant enhancement.

In prosecution on charges of possession and production of child pornography, Dist. Ct. abused its discretion by failing to qualify police officer as expert witness, since officer’s testimony about image-extraction process from defendant’s digital devices pertained to technical concepts that went beyond ordinary knowledge. However, any error was harmless, where: (1) evidence against defendant was strong, given fact that defendant had confessed to police about abusing minor victim and downloading child pornography; and (2) govt. could have presented another witness to offer same explanation about data-extraction software. Also, officer’s affirmative response to prosecutor’s question as to whether defendant’s devices contained child pornography did not constitute impermissible legal conclusion, where officer’s response was properly admitted as fact testimony because it was ordinary and accepted way to describe what officer observed. Too, trade inscriptions found on defendant’s seized equipment indicating that devices were “made in China” or were products of were admissible under Rule 807’s residual exception to hearsay rule and did not otherwise violate Confrontation Clause since said inscriptions were non-testimonial in nature.

Dist. Ct. did not err in dismissing defendant’s habeas petition under section 2241 that challenged his firearm convictions under section 924(c), under circumstances where defendant had previously filed unsuccessful motion seeking leave to file successive section 2255 habeas petition that challenged his firearms convictions under Johnson, 576 U.S. 591. Dist. Ct. stayed instant section 2241 petition pending U.S. Supreme Ct, decision in Davis, 139 U.S. 2319, and defendant subsequently filed another unsuccessful request to file a successive section 2255 petition that contended that he was entitled to relief under Davis because Davis found that residual clause defining “crime of violence” in section 924(c)(3)(B) was unconstitutionally vague. However, Dist. Ct. could properly find that defendant could not proceed under section 2241 because defendant could not show that there was anything structurally inadequate about section 2255 proceeding as remedy for individuals like defendant to challenge his section 924(c) convictions under Davis. Fact that defendant did not prevail on his request to file Davis-based, successive section 2255 petition did not demonstrate that section 2255 petition was inadequate vehicle to address his claims under Davis.

Dist. Ct. did not err in denying defendant’s habeas petition, alleging that inadvertent disclosure to jury of transcript containing prosecutor’s opening statement in co-defendant’s separate trial, indicating that co-defendant had given statement implicating defendant in charged murder violated his 6^th Amendment rights under Confrontation Clause. Any error caused by defendant’s inability to confront co-defendant’s statement was harmless, where govt. presented solid case against defendant that included two witnesses placing defendant and others at scene of shooting, as well as other unconnected witnesses, who confirmed defendant’s role as one of two shooters of victim. Moreover, instant prosecutor did not discuss co-defendant’s statement implicating defendant in shooting. Also, Dist. Ct. did not err in rejecting defendant’s claim that his counsel was ineffective for failing to object to evidence of subsequent shooting that resulted in capture of gun that was involved in instant charged offense, where, although defendant was not involved in said shooting, any failure to object to said testimony was harmless given strength of govt. case against defendant in charged offense.