Criminal Law

Dist. Ct. did not err in dismissing defendant’s section 2241 habeas petition that challenged his 44-year sentence on charge under 18 USC section 844(i) of detonating pipe bomb, where Dist. Ct. had imposed instant enhanced sentence based on its finding under preponderance of evidence that pipe bomb had actually caused death of bystander. Ct. of Appeals rejected defendant’s claim that, under Burrage, 134 S.Ct. 881, jury, as opposed to Dist. Ct., was required to make finding as to cause of bystander’s death and instead found that Burrage stands only for proposition that enhanced sentence is proper only if there was finding that detonation of pipe bomb was “but-for” cause of bystander’s death and not merely contributing factor to it. Ct. further held that: (1) defendant could not use instant section 2241 petition to challenge his sentence, since he could have asserted in his direct appeal or in his original section 2255 habeas petition that pipe bomb was not but-for cause of bystander’s death; and (2) defendant could not show existence of any miscarriage of justice arising out of his sentence, since unrebutted testimony at trial indicated that pipe bomb was but-for cause of bystander’s death.

Dist. Ct. did not err in imposing 100-month term of incarceration on bank robbery by intimidation charge under 18 USC section 2113(a), after finding that defendant qualified for negative sentencing treatment under pre-2016 federal sentencing Guidelines for career offender status under section 4B1.2(a) of USSG. Instant charged offense qualified as “crime of violence” under elements clause set forth in section 4B1.2(a)(1) of USSG, since: (1) said charged offense had as element use, attempted use or threatened use of physical force; and (2) intimidation of victim for purposes of charged offense under section 2113(a) was caused by intentional threat of force. Ct. rejected defendant’s claim that charged offense could not qualify as crime of violence because charged offense required proof of only general intent, while crimes of violence required proof of specific intent.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his enhanced sentence on Indiana drug distribution and receipt of stolen property charges, where defendant argued that his appellate counsel was ineffective for failing to generate sufficient argument in defendant’s appeal that urged Indiana App. Ct. to reduce his 72-year enhanced sentence by using its discretionary authority under Indiana Appellate Rule 7(B). Defendant’s claim was in essence attack on state court’s assessment of merits of his Rule 7(B) argument, which was pure state law issue that was not addressable in instant federal habeas petition.

Dist. Ct. erred in denying without conducting evidentiary hearing defendant’s motion for new trial under Rule 33(a), alleging that his trial counsel was ineffective for failing to contact three proposed witnesses, two of which would have testified that defendant’s co-defendants admitted that defendant as “taking the rap” for them on instant charged offense. While Dist. Ct. believed that defendant had failed to establish any prejudice in trial counsel’s failure to call said witnesses, Ct. of Appeals found that reversal was required with directions to conduct evidentiary hearing, since: (1) ineffective assistance of counsel claims often require evidentiary hearing because they frequently allege facts that record does not fully disclose; (2) evidentiary hearing might produce evidence supporting defendant’s claim that counsel did not communicate with defendant’s proposed witnesses; and (3) said proposed testimony would have been admissible at least for impeachment purposes and could have been substantively admissible under either excited utterance or present sense impressions exceptions to hearsay rule if explored at evidentiary hearing, since said statements were allegedly made by co-defendants at time when defendant was being arrested and when his home was being searched.

Dist. Ct. did not err in accepting defendant’s guilty plea to charge of sex trafficking of minor by force, fraud or coercion and conspiracy to do same with his wife. Record showed that defendant enticed 15-year old victim to enter his vehicle through promise of obtaining modeling work for her, and then, with his wife, embarked on six-week spree of sexual exploitation of victim in which he sold victim’s sexual services to at least 15 men across three states. Defendant also threatened victim after she had refused to have anal sex with one customer and after victim had tried to escape. While defendant argued that he was incompetent to enter into guilty plea due to his lack of education, record showed that he had previously pleaded guilty to nine unrelated offenses and was sophisticated enough to operate instant online prostitution scheme. Moreover, defendant’s signed stipulation contained sufficient facts to support instant convictions, especially where defendant had never intended to obtain victim any modeling work, and where defendant had used threats of force to keep victim performing sexual acts.

Dist. Ct. did not err in finding that defendant’s conviction for robbing person having custody of property belonging to U.S. under section 18 USC section 2114(a) qualified as “crime of violence” for purposes of supporting his conviction on brandishing firearm in relation to crime of violence under 18 USC section 924(c)(1)(A)(ii). Second part of section 2114(a), i.e., “robs or attempts to rob any such person…of money…and in effecting such robbery did put life of said person in jeopardy by use of dangerous weapon,” which was at issue in defendant’s guilty plea, contemplates force that is capable of causing injury, and therefore qualified as crime of violence.

Record contained sufficient evidence to support jury’s guilty verdict on drug conspiracy charge, even though defendant argued that his membership in different gang precluded jury from finding that defendant had joined co-defendants’ narcotics distribution conspiracy. Record showed that defendant had agreed to pay co-defendant for right to continue to sell drugs in certain geographical area, and agreement to pay rent for right to sell drugs in particular geographical area is sufficient to establish drug conspiracy, regardless of whether defendant was competitor with co-defendants. Others also testified that defendant had admitted to working for member of conspiracy selling heroin, and that defendant was working in tandem with another individual when selling drugs. Dist. Ct. also did not err in denying another defendant’s motion for new trial based on allegation that prosecutor violated Brady by not timely informing him that one govt. witness had implicated himself in unrelated murder in statement made to different prosecutor. Newly discovered impeachment evidence will normally not be deemed material so as to support request for new trial under Brady, where, as here, govt.’s case against defendant did not rest entirely on said witness’s testimony and credibility.