Criminal Law

Ct. of Appeals rejected defendant’s claim that his conviction on charge of being unlawful user of controlled substance in possession of firearm was unconstitutional, even though defendant claimed that term “unlawful user” found in 18 USC section 922(g)(3) was unconstitutionally vague, or that statute’s ban on possession of firearm by unlawful user of controlled substance impermissibly burdens defendant’s Second Amendment rights. It also rejected defendant’s claim that Dist. Ct. had failed to properly instruct jury on who constitutes “unlawful user” of controlled substances. However, defendant was entitled to new trial under Rehaif, 139 S.Ct. 2191, where: (1) govt. was required to show that defendant knew not only that he possessed firearm, but that he belonged to relevant category of person barred from possessing firearm; (2) instant indictment did not allege and jury instructions did not advise jury that it must find that defendant knew he was unlawful user of controlled substances; and (3) there was reasonable probability that outcome of trial might have been different had govt. been required to prove that defendant knew he was unlawful user of marijuana.

Dist. Ct. did not commit procedural error in sentencing defendant to lifetime term of supervised release as part of his sentence on charge of distribution of child pornography, even though defendant claimed that lifetime term of supervised release violated parsimony provision of sentencing statute, which requires that sentence be sufficient, but not greater than necessary. Dist. Ct. expressed belief that lifetime term of supervised release was necessary to accomplish goals of sentencing, and Dist. Ct. could properly impose said term, where record showed that there was possibility that defendant would re-offend because he had done so in past, and that defendant would need help at rehabilitation even at advanced age. Dist. Ct.’s observation that 10 to 15-year term of supervised release was equivalent to lifetime term did not require different result, since  Dist. Ct. did not imply that shorter term of supervised release would accomplish sentencing goals.

Dist. Ct. did not commit plain error in admitting dual-role testimony of federal agent in defendant’s trial on charge of possession of firearm in connection with drug trafficking crime. Although Dist. Ct. failed to follow correct procedures for admitting testimony of agent, who testified as fact witness and gave opinion regarding connection between guns and drugs found in glove compartment of defendant’s car, said error was not plain, where: (1) record contained evidence of agent’s extensive background in investigating firearms and drug trafficking crimes to support his opinion; and (2) govt. had other evidence to show that defendant was using firearms found in his car to facilitate his drug dealing. Also, while Dist. Ct. erred in giving jury instruction that failed to define possession of firearm “in furtherance of” drug offense that was element of charged offense, said error did not compromise defendant’s substantial rights, where: (1) “in furtherance of” has plain meaning; and (2) record contained strong evidence of defendant’s guilt, where jury heard unmistakable evidence showing connection between guns recovered from car and drugs that he had planned to deliver to govt. informant.

Record contained sufficient evidence to support Dist. Ct.’s finding in bench trial that defendant was guilty of drug distribution conspiracy charge, where: (1) record contained testimony of co-conspirator, four mail receipts and testimonies of Puerto Rican police officers who arrested defendant and found in his car defendant’s birth certificate and four mail receipts for packages sent to co-conspirator who told Wisconsin police that defendant had repeatedly sent him packages containing cocaine; and (2) forensic scientists determined that one intercepted package contained cocaine and had defendant’s fingerprints inside package. While defendant argued that he was entitled to acquittal finding as matter of law because government’s witnesses were not credible, defendant’s arguments did not demonstrate that government’s proffered evidence was either physically impossible or otherwise unbelievable. Moreover, defendant could not otherwise prevail on appeal, since credibility determinations are best handled by trier-of-fact and not appellate court.

Dist. Ct. did not err in granting defendant’s habeas petition that challenged his solicitation of murder for hire conviction on ground that trial court improperly precluded him from providing testimony about his interactions with police informant during five-week period prior to defendant’s recorded conversation with hit-man that defendant claimed would support claim that he did not have any intent to have his ex-wife and her boyfriend killed. While trial court found that defendant’s proposed testimony was irrelevant to knowing what defendant's intent was on day of recorded statement, said exclusion violated defendant’s due process right to present complete defense to charged offense, since: (1) his proposed testimony represented his entire defense that he lacked requisite intent to have hit-man kill his ex-wife and her boyfriend, where defendant claimed that his expressed intent to kill his ex-wife and her boyfriend during recorded conversation was charade; (2) as result of trial court’s exclusion, jury lacked vital context to weigh defendant’s credibility about his lack of intent; (3) instant exclusion of defendant’s proposed testimony was arbitrary, where prosecutor was able to present evidence of defendant’s motive to kill his ex-wife that dated back to four months prior to recorded conversation, which was same timeframe of defendant’s proposed testimony; and (4) excluded testimony was material and favorable to defendant. Ct. rejected State’s argument that defendant was essentially able to present defense to instant charged offense through other admitted evidence.

Dist. Ct. did not err in sentencing defendant to 151-month term of incarceration on armed bank robbery charge, where said sentence was based, in part, on Dist. Ct.’s finding that defendant had used real gun during bank robbery. While defendant asserted that record lacked sufficient evidence to support Dist. Ct.’s finding that she had used real gun during robbery, record contained sufficient evidence to support Dist. Ct.’s finding, where expert testified that still photographs taken during robbery indicated that defendant had actual pistol, and that clicking noise from firearm described by bank employee was consistent with noise produced by said pistol. Moreover, Dist. Ct. could properly find that defendant was not credible in her testimony that she purchased fake gun from Walmart. Also, Dist. Ct. could base instant sentence on defendant’s false statement that she used fake gun during robbery, and that Dist. Ct.’s reliance on defendant’s false statement did not violate any 5th Amendment rights, where defendant actually broke her silence by uttering false statement, and where said privilege to remain silent is not tantamount to privilege to lie without consequences.