Criminal Law

In prosecution on drug trafficking and firearm charges, Dist. Ct. did not err in denying defendant's motion to suppress search of his home under circumstances, where: (1) defendant was serving term of "extended supervision" at time of search; and (2) instant search was performed under section 302.113(7r) of Wisconsin Statutes. Privacy expectations of offenders, like defendant, who are on post-imprisonment supervision are weak and are substantially outweighed by govt.'s strong interest in preventing recidivism and safely reintegrating offenders into society. Moreover, said statute allowed search of defendant's home based only on reasonable suspicion of criminal activity, and police had such suspicion, where: (1) defendant's live-in girlfriend had previously told police that methamphetamine that she had ingested came from stash that defendant had shared; and (2) police had concern as to safety of girlfriend's children left in custody of defendant. Ct. also likened defendant's status as individual who was on judicially imposed parole, who had no greater expectation of privacy than parolee, and noted that under Samson, 547 U.S. 843, no-suspicion search of parolee was constitutionally permissible. As such, instant reasonable suspicion search under Wisc. statute was also constitutionally permissible.

Dist. Ct. did not err in denying portion of defendant's habeas petition, alleging that his trial counsel was ineffective for failing to pursue defendant's proposed alibi defense to attempted murder charge. Record showed that defendant gave confession to charged offense, and that defendant gave different alibi to trial counsel than one presented in habeas petition. As such, trial counsel could not be deemed ineffective, where: (1) state court could reasonably conclude on disputed evidence that defendant never told counsel of alibi defense at issue in habeas petition; and (2) trial counsel testified that different alibi that defendant gave to him was not corroborated. However, Dist. Ct. erred in granting defendant's portion of habeas claim that his appellate counsel was ineffective for failing to present argument that there was insufficient evidence to convict because govt. failed to present evidence that his confession was corroborated. Sentencing issue that appellate counsel raised was not so weak so as to be equivalent to filing no brief at all, and defendant failed to present case law to support his corpus delicti argument that govt. was required to present evidence to corroborate details contained in his confession. Moreover, record contained independent evidence that corresponded to confession, and that said evidence lined up with details as to how crime occurred. As such, defendant failed to show that his proposed sufficiency of evidence claim was both obviously and clearly stronger than sentencing issue raised by appellate counsel on direct appeal.

Defendant was entitled to new trial on two of three convictions on charges of viewing and transporting child pornography, where Dist. Ct. improperly allowed govt. to rebut testimony of one of defendant's witnesses regarding where defendant had resided at time of commission of said offenses with statement defendant gave to Pretrial Services, where govt. used statement as "impeachment by contradiction." Said statement, which was otherwise confidential, was relevant only if offered for truth of matter asserted, which was prohibited under 18 USC section 3153(c)(1) and (3). Moreover, error was not harmless because there was substantial risk that jury considered evidence of defendant's statement as evidence of his guilt. Also, if govt. chooses not to re-try defendant on said charges, defendant is entitled to new sentencing hearing on third charge (which did not require evidence of defendant's residence) because sentencing guideline range for said charge would be lower without existence of vacated convictions.

Dist. Ct. erred in sentencing defendant to 204-month term of incarceration on conspiracy to distribute drugs and unlawful possession of firearm offenses, where said sentence was based on information presented under 21 USC section 951 regarding defendant's prior Ohio conviction for possession of cocaine that Dist. Ct. believed made him eligible for mandatory minimum sentence of 10-years' imprisonment, rather than applicable five-year mandatory minimum.  Under applicable First Step Act of 2018, defendant's prior conviction had to qualify as "serious drug felony," i.e. offense involving manufacture, distribution or possession with intent to manufacture or distribute controlled substance in order to qualify for 10-year mandatory minimum sentence, and Ohio statute at issue did not indicate that conduct proscribed necessarily entailed intent to manufacture or distribute controlled substance. Fact that defendant's Ohio conviction involved possession of more than 100 grams of crack cocaine or 1,000 grams of powder cocaine, which suggested intent to distribute, did not require different result. As such, remand was required for new sentencing hearing that concerned, at starting point, only 5-year mandatory minimum sentence.