Criminal Law

Record contained sufficient evidence to support wire fraud charge stemming from defendant’s theft of funds from entity over which defendant had been appointed receiver. While defendant argued that motion that defendant had sent to court, which contained false statement that receivership had enough funds to pay others could not form part of wire fraud charge since defendant had withdrawn all funds prior to sending said motion, defendant’s motion was designed to lull victims into false sense of security, and thus furthered said fraud. As such, said motion could properly be viewed as part of wire fraud charge that could be used to satisfy limitations period for bringing said charge. Moreover, defendant’s assertion of instant reasonable doubt argument supported Dist. Ct.’s denial of defendant’s request for 2-level downward departure of offense level for acceptance of responsibility. Also, Dist. Ct. did not err in calculating loss at $331,840 that defendant had withdrawn from receivership funds without giving credit for $216,000 that defendant had paid for receivership expenses from other funds, since defendant’s payment of said funds were made to hide original withdrawals.

Record contained sufficient evidence to support defendant’s conviction on two counts of Hobb’s Act robberies, as well as friend’s use of firearm in commission of said robberies, even though defendant argued that evidence was insufficient to show that he knew in advance that his friend would commit said robberies, that friend would use gun in said robberies, or that he had assisted friend in commission of said robberies. Friend’s testimony was sufficient to support guilty verdict on one robbery, where friend testified that defendant had driven him to said store, that he and defendant had agreed to split robbery proceeds and that defendant had given him gun to commit said robbery. Also, with respect to second robbery, friend testified that defendant had driven him to second store, that he used same gun that was used in prior robbery, and that defendant had split proceeds with him. Moreover, jury could consider fact that defendant had been present with friend at other stores, where robberies involving friend were committed to support finding that defendant had planned second robbery with friend based upon similarities in robberies. Record also contained other evidence that supported certain aspects of friend’s testimony.

Dist. Ct. erred in dismissing defendant’s habeas petition that challenged his 1982 murder conviction, even though record showed that defendant had filed post-conviction petition in 1992, which incurred series of delays caused by defendant and was ultimately denied on laches grounds in 2014. Dist. Ct based instant dismissal on belief that defendant had procedurally defaulted underlying claims of ineffective assistance of counsel and double jeopardy, because denial of post-conviction petition on laches grounds was adequate and independent state-law ground of decision that barred Dist. Ct. from reviewing merits of any federal claim. Ct. of Appeals, though, found that dismissal was inappropriate, because there was no firmly established and regularly followed Indiana rule that laches applied to delays to already-filed actions, as opposed to yet-to-be filed actions. On remand, Dist. Ct. could explore issue as to whether any failure to prosecute post-conviction petition was alternative ground for finding procedural default in instant habeas claim.

In prosecution on possession of child pornography charge, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of child pornography found in defendant’s home that occurred pursuant to search warrant. Dist. Ct. could properly find that warrant was supported by probable cause, where affidavit supporting warrant informed state-court judge that: (1) defendant placed ad on Craigslist, and police officer impersonating teenager responded to said ad; (2) defendant and officer thereafter conducted extensive electronic exchange that included defendant sending officer sexually explicit emails and graphic photos that included photo of man on bedspread with object in his rectum; and (3) defendant requested that officer send him picture of officer in compression shorts with “hard-on.” Ct. rejected defendant’s claim that search of defendant’s home was unreasonable because there was no indication that any activity prior to issuance of warrant took place at his home so as to justify search of that location. Ct., though, found that agent’s claim in affidavit that his “training and experience” suggested link between pedophilia and child pornography would not support finding of probable cause without providing specifics of said training and experience.

In prosecution on robbery and firearm-related charges, Dist. Ct. did not err in denying defendant’s motion to suppress police collection of cell-site location information (CSLI) that placed defendant in vicinity of four charged robberies, even though defendant argued that collection of said data over 314-day period, although in compliance with procedures set forth in Stored Communications Act (SCA), violated 4^th Amendment because said collection was without warrant, and because he had reasonable expectation of privacy in said CSLI data. While Ct. in Carpenter, 138 S.Ct. 2206 subsequently found that individual in defendant’s circumstances had legitimate expectation of privacy in records of his physical movements disclosed by CSLI data, Ct. of Appeals found that said CSLI evidence need not be excluded, where it was obtained in good-faith reliance on SCA. Also, Dist. Ct. did not commit reversible error in precluding defendant from asking govt. witnesses about whether defendant had accused police of unjustifiably shooting defendant’s cousin during confrontation following first robbery. Defendant was able to effectively bring out each witness’s motivation for testifying on behalf of govt., and defendant was able to put before jury cousin’s death and defendant’s threatened complaint against police despite Dist. Ct.'s adverse ruling.

Dist. Ct. erred in dismissing as untimely defendant’s habeas petition that challenged his Wisconsin conviction on sexual assault charge that involved his son, where defendant alleged that he was actually innocent of said charge. While Dist. Ct. believed that defendant could not meet standard for actual innocence under Schlup, 513 U.S. 298, because son’s recantation was cumulative evidence that was already put before jury that convicted defendant, Dist. Ct. should have conducted evidentiary hearing to test veracity of recantation in light of other evidence supporting defendant’s conviction. Moreover, while instant petition was filed beyond one-year limitations period, defendant might be able to satisfy actual innocence exception to limitations period requirement if recantation represented truth, especially where defendant’s conviction was based in large part on son’s claims made at trial. Also, determination that recantation was cumulative evidence was erroneous, where it was inaccurate to say that recantation was before jury. However, if Dist. Ct. finds that reasonable juror could still convict defendant beyond reasonable doubt notwithstanding recantation, defendant’s habeas petition must be dismissed as untimely.

Dist. Ct. did not err in denying defendant’s motion to vacate his guilty plea on charge of felon in possession of firearm, even though predicate felony used to support said conviction, i.e., Ill. aggravated use of weapon had been found to be unconstitutional ab initio. Under Lee, 72 F.3d 55, instant state-court conviction could still be used as predicate felony, since defendant had not moved to vacate said conviction by time he committed instant offense. As such, govt. proved all elements of instant offense, because at time it was committed, defendant had prior felony conviction on his record, and, as Supreme Ct. noted in Lewis, 445 U.S. 55, there is no exception for individuals whose outstanding felony convictions ultimately might turn out to be invalid for any reason.