Criminal Law

Dist. Ct. erred in denying defendant’s habeas petition challenging his criminal confinement conviction on ground that his trial counsel was ineffective for failing to object to prosecutor’s motion to amend charging instrument to add criminal confinement charge, where prosecutor’s motion was filed after “omnibus” deadline for filing said motions, as set forth in Indiana statute, and where Indiana Supreme Court had previously found that omnibus deadline must be strictly enforced. Facts in instant case were sufficiently similar to facts in Shaw, 721 F.3d 908, where Ct. of Appeals had previously found that trial counsel’s failure to object to untimely amendment of defendant’s charges under same Indiana statute constituted ineffective assistance of counsel. Fact that Indiana attorneys routinely disregarded text of statute and/or Ind. Supreme Ct. holding and allowed prosecutors to make untimely amendments did not require different result. Moreover, fact that at time of defendant’s trial certain Indiana Appellate Court decisions had consistently allowed untimely substantive amendments to charging instruments so long as defendant had adequate time to prepare for trial did not support state’s claim that reasonable practitioner could make tactical decision not to object to untimely motion to amend charging instrument. (Dissent filed.)

Dist. Ct. erred in denying defendant’s habeas petition alleging that he was entitled to new sentencing hearing on drug conspiracy charge, where he had received enhanced sentence under career-offender provision of 1990 Sentencing Guidelines based, in part, on prior felony “crime of violence” conviction on charge of conspiracy to kill govt. witness. Said conviction was crime of violence only under residual clause set forth in career-offender sentencing guideline, and Ct., in Johnson, 135 S.Ct. 2551, found that identical residual clause found in Armed Career Criminal Act was unconstitutionally vague. As such, defendant was entitled to new sentencing hearing. Fact that “conspiracy,” “murder,” and “manslaughter” were listed as crimes of violence in application notes to 1990 version of section 4B1.2 of USSG did not require different result or demonstrate that such charges qualified as crimes of violence under elements clause, since application notes’ list of qualifying crimes was valid only as interpretation of section 4B1.2 of USSG’s residual clause.

In prosecution on possession of firearm in furtherance of drug trafficking crime, Dist. Ct. did not err in submitting instruction to jury that purported to explain “in furtherance of” element of charge with factors identified in Duran, 407 F.3d 828, that had been proposed by govt., as well as dictionary definition of “facilitate” that had been proposed by defendant. Said instruction effectively gave jury its task, listed considerations to weigh in its discretion, iterated proper legal standard and clearly informed jury that it must determine whether firearm furthered, advanced, moved forward or facilitated crime. Moreover, record contained sufficient evidence to support jury’s guilty verdict on said charge, where: (1) defendant’s Facebook messages indicated that he had conducted drug deal earlier on day of his arrest; (2) at time of his arrest, defendant’s pockets contained drugs that he had packaged individually for sale, as well as other drug accoutrements and loaded gun; and (3) jury could determine that defendant had carried loaded gun to protect himself and his drugs on night he was arrested.

In prosecution on charge of exporting stolen cars and structuring financial transactions to avoid federal reporting requirements stemming from defendant’s shipments of containers of stolen cars where said containers had been packed by his customers, Dist. Ct. did not err in giving jury ostrich instruction that had been requested by govt. Defendant argued at trial that he did not know that he was exporting stolen cars, and that he had not looked into containers prior to shipping them, and Dist. Ct. could properly find that ostrich instruction was proper, where: (1) given his years of experience on shipping industry, defendant had cut off his normal curiosity by never looking into said containers; and (2) jury could find that defendant purposely did not subject containers to normal scrutiny and draw negative inference from his change in behavior. Also, although prosecutor misstated during closing arguments that employees at bank had been terminated for malfeasance, said misstatement did not entitle defendant to new trial, where: (1) Dist. Ct. gave jury curative instruction; (2) prosecutor’s comment suggesting that defendant had help at bank when committing crime was not crucial to case; and (3) evidence of defendant’s guilt on charged offenses was strong.