Criminal Law

Dist. Ct. did not err in sentencing defendant to below-Guidelines, 125-month term of incarceration on drug distribution charge, even though defendant asserted that Dist. Ct. should have calculated his sentence as if he had sold methamphetamine, instead of "ice." While guideline for selling methamphetamine is only 77 to 96 months, Dist. Ct. could properly decline defendant’s request to disregard Guideline’s distinction between methamphetamine and ice, and record otherwise showed that Dist. Ct. addressed defendant’s challenge to said distinction as set forth in Guidelines. As such, Dist. Ct. could base defendant's sentence on amount and purity of drug he distributed.

In prosecution on wire fraud charges arising out of scheme to defraud manufacturers that issue coupons for consumer products at trial in which defendant represented himself with stand-by counsel, Dist. Ct. did not err in denying defendant’s request for 18-month continuance of trial and for govt. to remove lis pendens on his home in order to retain counsel of his choice. No counsel entered appearance on behalf of defendant after his original counsel had died, and Dist. Ct. could look to fact that case had been pending for seven years, and that other co-defendants made requests to proceed to trial to deny instant continuance request. Also, Dist Ct. indicated that it would consider shorter continuance request if substitute counsel had entered appearance on behalf of defendant. Moreover, Dist. Ct.’s refusal to remove lis pendens did not violate defendant’s right to counsel, since record showed that defendant had access to assets to retain counsel where he actually sold his home for $1.5 million eight months prior to scheduled start of trial. Too, Dist. Ct. could properly conclude that defendant had waived right to counsel by failing to retain substitute counsel, where: (1) Dist. Ct. had conducted multiple hearings in which defendant made representations about retaining new counsel and concluded that defendant had engaged in deliberate delay; (2) Dist. Ct.’s allowance of eight months for any new counsel to prepare for scheduled trial was sufficient; and (3) while Dist. Ct. did not provide defendant with formal inquiry to explain ramifications for proceeding pro se, record showed that defendant had articulated that he appreciated difficulties of proceeding pro se and told Dist. Ct. that he was making calculated decision to proceed with stand-by counsel so that he could raise right to counsel issue on appeal.

In prosecution on firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress evidence seized after search of defendant’s cell-phone that was made pursuant to search warrant. While defendant argued that description of items to be seized, as contained in warrant, was too general because it allowed officer to search all applications and files in phone and decide which files satisfied description that included all documents or videos depicting crime of criminal recklessness, police could search all files and applications on phone, since incriminating evidence could be contained in any file or folder. Result might be different if police had advance notice of specific files or applications in defendant’s phone where incriminating evidence was located.

Dist. Ct. did not err in denying defendant’s section 2241 petition that challenged his life-term imprisonment on charge of selling heroin that resulted in user’s death, under circumstances, where: (1) defendant argued that Dist. Ct. had issued wrong instruction to jury under Burrage, 571 U.S. 204, since instruction allowed jury to convict defendant where drug was only contributory, as opposed to but-for cause of user’s death; and (2) defendant did not prevail on same issue in prior section 2255 petition that was resolved by 8^th Circuit Ct. of Appeals, which found that although wrong instruction was given, defendant forfeited said issue and otherwise failed to show any prejudice resulting from use of wrong instruction. Moreover, defendant could not use instant section 2241 petition to seek relief, where section 2255 habeas petition provided potential remedy. As such, defendant’s only remedy was appeal of decision of 8^th Circuit Ct. of Appeals.

In prosecution on drug, firearm and racketeering conspiracy charges arising out of defendants’ gang-related activities, Dist. Ct. did not err in finding that prosecutor’s post-trial disclosure of statement from confidential informant indicating there was in-fighting among members of defendant’s gang did not violate disclosure requirements of Brady, 373 U.S. 83, where Dist. Ct. could properly find that said statement was not material. While defendants argued that said statement was material because said statement precluded finding that conspiracy existed among gang members, Dist. Ct. previously rejected defendants’ argument that infighting among gang members was inconsistent with existence of conspiracy, where record showed that: (1) defendants’ gang acted as unit despite changes in membership and leadership; and (2) gang had sustained hierarchy that persisted over 10-year period. Moreover, instant statement was cumulative to what Dist. Ct. had learned during instant bench trial. Also, one defendant failed to establish any error under Bruton, 391 U.S. 1231, with respect to admission of statement from non-testifying individual, who implicated himself and said defendant in charged offenses, since: (1) rule in Bruton does not apply to bench trials where Dist. Ct. can disregard any prejudicial portions of statement; and (2) Dist. Ct. did not otherwise convict said defendant based on said statement.