Criminal Law

In prosecution on charge that defendant-police officer willfully deprived victim of his 4^th Amendment right to be free from unreasonable seizure, Dist. Ct. did not abuse its discretion in excluding proposed testimony from defendant’s expert witness, who would have testified that defendant’s actions during arrest of victim were consistent with police dept. policy. Record showed that defendant had punched victim several times after victim had been handcuffed, and defendant’s compliance with dept. rules was neither sufficient nor necessary to satisfy 4^th Amendment requirement that defendant act reasonably when arresting individual. Moreover, while there is no per se rule excluding instant proposed testimony, Dist. Ct. appropriately exercised its discretion in excluding said testimony, where: (1) expert’s explanation of police dept. procedure would not add anything that jurors could not ascertain from viewing videotape of incident and applying their own everyday experience to determine defendant’s guilt or innocence; and (2) admission of expert’s opinion had potential for jurors to inappropriately defer to expert’s testimony rather than to draw their own conclusions.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his state-court conviction on sexual molestation charge on ground that his trial counsel was ineffective for failure to seek suppression of recorded telephone call in which defendant had confessed to said offense, but only after defendant had claimed that he was pressured to confess because alleged victim had threatened to inform defendant’s own son of said allegations. State court unreasonably found that trial counsel was more credible in his claim that he did not seek suppression because defendant had told him that he did not feel threatened during telephone call, where trial counsel’s testimony was refuted by trial transcript. However, any error was harmless given overwhelming nature of defendant’s guilt as established through other properly admitted evidence. Also, defendant had procedurally defaulted claim (by failing to properly present it to Wisc. Supreme Court) that his trial counsel was ineffective for failing to object to prosecutor’s statement during rebuttal phase of closing argument that invited jury to consider whether it was “fair” for defendant to have been able to plead down to misdemeanor charge prior criminal case that contained allegations of similar misconduct.

In prosecution on firearm and drug distribution charges, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of drugs and firearm from his person and his vehicle, even though defendant argued that officer lacked probable cause to arrest him after defendant had been observed asleep for hour in McDonald’s drive-through lane. Officer had probable causer to arrest defendant for both marijuana possession and operating vehicle under influence, where officer was aware of report of defendant being asleep at wheel, and where officer, who smelled marijuana on defendant, did not believe defendant was answering her questions truthfully. As such, officer could search defendant, as well as his vehicle, because officer could reasonably believe that vehicle contained evidence of offense of arrest. Fact that defendant had been placed in police wagon at time of search of vehicle did not require different result. Also, officer had probable cause to search vehicle under automobile exception given existence of strong odor of marijuana.

Dist. Ct. did not err in imposing 80-month term of incarceration on defendant’s drug trafficking charge, even though defendant argued that Dist. Ct. assigned wrong offense level to “Alpha-PVP” drug at issue in charged offense. Alpha-PVP is not specifically listed in sentencing guidelines, and Dist. Ct., as factual matter, could properly find that most closely-related drug in guidelines in terms of chemical structure, effect and potency was methcathinone, as opposed to pyrovalerone, as suggested by defendant. Thus, Dist. Ct. could assign offense level for methcathinone to Alpha-PVP. Fact that Dist. Ct. considered live testimony from three users of Alpha-PVP, who described powerful stimulant of drug, did not require different result.
 

Defendant was entitled to new trial on drug conspiracy charge, where prosecutor withheld statement made by one of state’s witnesses during break in trial that key witness for govt. was still selling narcotics for drug supplier at time of trial, which was contrary to key witness' trial testimony. Said statement was favorable to defendant, since it tended to impeach key witness’ testimony, and said statement was material, since it suggested that someone other than defendant was responsible for drug sales at issue in charged offense. Also, disclosure of said statement created reasonable probability that trial would have had different outcome, where: (1) record contained no direct evidence of defendant’s involvement in charged conspiracy; (2) govt.’s other witnesses implicating defendant had long criminal histories; and (3) instant statement cast doubt on testimony of key witness.

In prosecution on charges of wire fraud, money laundering and securities fraud, arising out of scheme where defendant took investors’ money and, instead of making promised investments, spent said money on his personal expenses, Dist. Ct. did not err in allowing govt. witness to testify that certain initial payments defendant made to investors were “lulling payments” that came from uninvested funds. While defendant argued that said testimony improperly allowed said witness to express opinion as to defendant’s intent, said witness did not express any opinion as to defendant’s intent in making said payments, but rather told jury source of said funds. Also, Dist. Ct. could preclude plaintiff from referring to his own accountant witness as “expert,” where defendant was otherwise allowed to elicit opinion from said witness regarding legitimate nature of defendant’s payments to his investors. Moreover, prosecutor did not commit reversible error when comparing defendant’s conduct to Bernie Madoff during prosecutor’s closing argument, since: (1) record contained overwhelming evidence of defendant’s guilt on charged offenses; (2) instant comparison was not inaccurate; and (3) defendant had opportunity to rebut said claim in his own closing argument. (Dissent filed.)