Criminal Law

Dist. Ct. did not err in sentencing defendant to 75-month term of incarceration on wire fraud charge, even though Dist. Ct. based said sentence, in part, on finding in presentence report that estimated loss to victims was around $1.8 million. While defendant claimed that said loss was only around $1 million, defendant failed to present any evidence to show that information used to support $1.8 million figure was unreliable or erroneous. Moreover, govt.’s documentary evidence regarding victim’s loss was taken from defendant’s own bank account records. Ct. also rejected defendant’s argument that his prison sentence should be shorter in order to give him more time to satisfy $1.8 million restitution order.

In prosecution on two counts of creating child pornography, Dist. Ct. did not err in denying defendant’s motion to suppress evidence collected from two searches of his home, where defendant claimed that police lacked probable cause to effectuate either search. Record showed that: (1) mother of child placed in defendant’s home care told police that she had discovered recording video camera in restroom vent in defendant’s home; and (2) within one day of mother’s tip, police discovered that defendant was on sex offender registry and had been convicted of first-degree sexual assault. As such, police could properly view such evidence as establishing probable cause that defendant had violated Wisconsin statute prohibiting certain clandestine recording of others, and result of first search gave police probable cause to seek evidence of child pornography in second search. Moreover, instant warrant was not overbroad either with respect to seeking too many items or searching in too many places on defendant’s property, since warrant’s list of several concrete categories of items concerned capture, storage or dissemination of recorded images that related to instant charges.

Dist. Ct. did not err in denying defendant’s request for attorney fees under Hyde Amendment, even though govt. conceded that its key witness was no longer available to testify at trial, which in turn led govt. to dismiss criminal charge against defendant. Defendant failed to show that govt.’s decision to drop instant criminal charge was anything but exercise of prosecutorial discretion in face of challenges to securing conviction at trial. Moreover, while key witness had cognitive problems associated initially with his Asperger condition and then with his brain cancer condition, defendant could not show that govt.’s prosecution of instant case was vexatious, frivolous or in bad faith for purposes of award of attorney fees, where: (1) record suggested that govt.’s case against defendant was sufficiently strong without key witness’ testimony to convince grand jury to find probable cause to indict defendant; and (2) simply having either Asperger syndrome or brain cancer did not disqualify key witness from testifying on date of said diagnoses, so as to support defendant's contention that govt.’s subsequent prosecution of case was in bad faith.

Dist. Ct. did not err in re-sentencing defendant-former Governor to 168-month term of incarceration on corruption-in-political-office-related crimes, even though five out of 18 counts of defendant’s original conviction had been vacated subsequent to imposition of original 168-month sentence. Dist. Ct. could properly impose same sentence based on gravity of defendant’s offenses and need to deter other public officials from committing similar offenses, and instant sentence fell within applicable sentencing guideline range. Ct. rejected defendant’s argument that: (1) instant sentence was unlawfully high, where Ct. of Appeals had stated in original opinion that 168-month sentence was not unlawfully high in view of vacated convictions; (2) Dist. Ct. improperly rejected defendant’s evidence that he was model prisoner, where said prison conduct did not show that defendant had fundamentally changed his attitude toward corrupt dealing; (3) he was entitled to lower sentence in view of vacated convictions, where Ct. of Appeals found that vacated convictions did not affect original sentencing guideline range, and where there had been no finding that defendant was innocent of vacated counts; and (4) instant sentence represented unwarranted disparity compared with other sentences.

Record contained sufficient evidence to support jury’s guilty verdict on kidnapping charges arising out of defendant’s efforts to falsely tell adopted parents of two minor children that she was qualified to take care of said children and that social workers had recommended defendant for care of foster children, when in fact defendant’s parental rights to her own two children had been terminated due to allegations of abuse and neglect. Record also showed that defendant and her husband had sexually fondled said children, and that defendant had returned said children to their adoptive parents only after said parents had grown suspicious of defendant. Ct. rejected defendant’s argument that govt. had failed to prove instant kidnapping charge, where, according to defendant: (1) adoptive parents of said children had been “inveigled” as contemplated under 18 USC section 1201, rather than said children; and (2) section 1201 requires inveigled person to be same person who was kidnapped. Ct. further rejected defendant’s claim that she did not “hold” said children where parents had voluntarily given them to her, after Ct. noted that defendant had obtained custody of said children through false claims.