Criminal Law

In prosecution on series of drug charges that stemmed from defendant’s role in selling drugs to victim who died as result of ingestion of said drugs, Dist. Ct. did not err in precluding defendant’s counsel from asking two witnesses who had pleaded guilty to similar charges and who were testifying as govt. witnesses about exact length of their mandatory minimum 20-year sentences. While defendant argued that Dist. Ct.’s ruling impinged on his right to confrontation with respect to said witnesses, Dist. Ct. could properly place instant restriction on defendant’s cross-examination since information about defendant’s potential sentence (that stemmed from knowledge about witnesses’ sentences) might confuse or mislead juries in deciding defendant’s guilt or innocence. Moreover, defendant was able to elicit from witnesses that they had “substantial mandatory minimum” and that they were testifying under plea agreements. Also, Dist. Ct. did not err in allowing govt. undercover agent to testify that defendant’s voice was recorded in phone conversation, where said agent had opportunity to become familiar with defendant’s voice at meeting prior to date of phone conversation.

Dist. Ct. erred in sentencing defendant to 180-month term of incarceration on possession of firearm by felon charge, where said sentence was based, in part, on finding that defendant qualified for negative treatment under Armed Career Criminal Act due to his prior Indiana conviction on charge of resisting law enforcement officer, which Dist Ct. found was “violent felony.” Defendant’s conviction for “inflicting bodily injury or otherwise causing bodily injury” on law enforcement officer did not qualify as “violent offense,” since said offense could be committed without use of violence.

In prosecution on charge of conspiracy to transport stolen goods in interstate commerce, Dist. Ct. did not err in entering preliminary forfeiture order in amount of $2.8 million after Dist. Ct. held evidentiary hearing in which investigator from one of defendant’s victims and Secret Service agent testified about interview with individual who claimed that he sold items obtained from defendant on eBay that generated approximately $3.5 million in sales over several year period. While defendant argued that govt. failed to establish that items sold on eBay had been stolen by defendant, govt. reasonably supported $2.8 million figure as net loss to victims through circumstantial evidence and statements made by defendant in his plea agreement. Moreover govt. was not required to trace back each item sold on eBay to charged offense. Also, defendant failed to present any evidence showing that items in question were obtained legitimately. Fact that testimony regarding eBay sales consisted of only hearsay statements from seller did not require different result.

Dist. Ct. did not err in dismissing defendant’s habeas petition seeking his immediate release from custody that arose out of state-court conviction on armed robbery and unlawful restraint charges, as well as his natural life sentence, under circumstances where defendant had successfully obtained habeas relief in prior habeas petition that directed govt. to re-offer defendant plea agreement on said charges that called for 15-to-30-year sentence, and where govt. had re-offered and defendant had accepted said plea, yet state trial court rejected said plea agreement based on defendant’s extensive criminal history. Once govt. had re-offered its proposed plea agreement, directives arising out of original habeas petition had been complied with, and Dist. Ct. thereafter lost jurisdiction of instant matter. Moreover, correctness of state trial court’s rejection of plea agreement was matter of state law that is currently pending on state-court appeal. As such, dismissal of instant habeas petition was appropriate because defendant received all relief that he requested in original habeas petition, and he may file another habeas petition regarding rejection of plea agreement only at end of state appellate process.

In prosecution on firearm charge, Dist. Ct. erred in imposing defendant’s sentence based on finding that defendant’s prior Wisconsin burglary conviction constituted “crime of violence” under section 2K2.1(a)(2) of USSG, since said conviction could not serve as predicate offense under section 2K2.1(a). However, defendant was not entitled to new sentencing hearing under instant plain error standard, since: (1) although Dist. Ct. set incorrect base offense level, its 50-month sentence was still 13 months below low end of correct sentencing range; and (2) there was no indication in record that calculation error affected fairness or integrity of defendant’s sentencing hearing.

In prosecution on bank robbery charge, Dist. Ct. did not commit reversible error in allowing bank teller to identify defendant as culprit, even though police used suggestive identification procedures when initially asking teller if photos of only one individual was actual individual who had robbed bank. Record showed that police had shown teller only photographs of defendant based on hunch of one police officer, and subsequent 6-person photo display containing defendant’s photograph was also suggestive, since four of six photos did not match description of culprit, and defendant’s photo was clearest and brightest on page. However, bank teller’s identification of defendant was still reliable under totality of circumstances given: (1) her proximity to culprit during bank robbery; (2) confident nature of her identification of defendant as culprit; and (3) her written description of culprit done shortly after robbery that essentially matched defendant’s physical characteristics. Moreover, other witnesses who observed bank’s tape of incident identified defendant as culprit, and defendant was in area of bank at time of incident. Also, defendant’s explanation regarding his whereabouts at time of robbery seemed implausible.