Criminal Law

In prosecution on drug conspiracy charges, Dist. Ct. did not commit plain error in admitting evidence of National Precursor Exchange System logs concerning pharmacy purchases of products containing pseudoephedrine by two of defendant's co-conspirators. Plain error standard applied since, although defendant had raised objection to admission of said logs in pretrial motion, Dist. Ct. made no ruling on said motion, and defendant failed to lodge any objection to admissibility of said logs during trial. Moreover, admission of said logs did not violate any right of confrontation, since said logs were non-testimonial in nature, because they were kept pursuant to state regulatory measures and not in response to active prosecution. Too, Dist. Ct. did not err in admitting video depicting “shake and bake” method of manufacturing methamphetamine, even though said video portrayed different method of drug production, since: (1) said video informed jury about how common household items could be used to make methamphetamine using “shake and bake” method that matched said items found at co-conspirator’s house; and (2) record showed that video was not meant to depict defendant’s exact method in making methamphetamine. Also, defendant’s two prior Illinois aggravated battery convictions qualified as “violent felonies” for purpose of sentencing defendant under section 4B1.2(a)(1) of USSG.

In prosecution on drugs and firearm charges arising out of series of drug sales and drugs for firearm sales, Dist. Ct. did not err in allowing police official to testify on cross examination regarding occasion where defendant was observed at location conducting what appeared to be transaction with unidentified third party. While defendant argued that said testimony was speculative, as well as prejudicial in light of his entrapment defense and constituted improper expert testimony, where testifying police official did not personally witness said incident, record showed that police official later clarified that he had not witnessed any transaction between defendant and third party and had only received information about incident from another police official. As such, said testimony was not prejudicial with respect to defendant’s entrapment defense, and jury could otherwise decide what weight to give such testimony. Also, Dist. Ct. did not err in giving entrapment instruction that informed jury that govt. had to prove either that law enforcement officers did not induce defendant to commit charged offenses, or that defendant was predisposed to commit charged offenses before he had contact with law enforcement officers. Moreover, fact that said instruction did not require govt. to prove that law enforcement officers did not persuade or otherwise induce defendant to commit charged offenses did not require different result.

Dist. Ct. did not err in sentencing defendant to 151-month term of incarceration on drug and money-laundering charges, even though said sentence was based, in part, on prior state-court misdemeanor conviction that was used to enhance instant sentence. While defendant claimed that Dist. Ct. could not base enhancement on said misdemeanor conviction, since it was obtained without use of Spanish interpreter, defendant could not raise instant collateral attack on his state-court conviction that was used to enhance his sentence. See, Custis, 511 U.S. 485. Moreover, transcript of state-court proceedings did not reveal any “plainly detectable” flaw with respect to defendant’s state-court conviction.

Record contained sufficient evidence to support defendant’s conviction on charge that defendant threatened President Obama in violation of 18 USC section 871(a). Record showed that defendant drove to location where President Obama was scheduled to speak and told several people that he intended to kill President Obama and that it was his constitutional duty to do so. Moreover, defendant told individuals that he could kill someone with his slingshot, which he had in his car. Jury could view defendant’s statements as “true threat” to Obama, even though defendant argued that he was obviously unable to carry out threat, since: (1) jury could find that defendant was capable of injuring President Obama with his slingshot; and (2) record showed that first person to whom defendant communicated his threat took defendant seriously by quickly forwarding defendant’s threat to authorities. Ct. further found no error, where Dist. Ct. instructed jury that defendant acted “willfully” if he either actually intended his statement to be true threat, or that he knew that other people reasonable would view his statement as true threat, but he made said statement anyway.

Dist. Ct. did not abuse its discretion in imposing requirement that defendant give notice to his probation office before using certain electronic devices as condition of supervised release that formed part of his sentence on possession of child pornography conviction. Ct. rejected defendant’s contention that such conviction was unconstitutionally vague, because it failed to sufficiently explain what devices would trigger notice requirement, since defendant need only notify probation office of specific device prior to using said device. Said condition also was not overly broad given fact that defendant had used computer system to obtain child pornography, and condition was sufficiently tailored to address Dist. Ct.’s concerns that defendant had taken measures to make tracking of his access to illicit images more difficult.

Dist. Ct. did not err in sentencing defendant to 24-month term of incarceration on wire fraud charge that stemmed from scheme in which defendant improperly obtained over $200,000 from 17 victims. While defendant argued that he should have only received term of probation due to his cancer diagnosis, his need for expensive drug that was not in prison’s drug formulary, and prison’s inability to give appropriate medical care, Dist. Ct. gave sound reasons for imposing term of incarceration due to serious nature of charged offense and need to protect public from defendant. Moreover, prison had ability to provide appropriate medical care and had granted all 10 prior requests to use specific drug for other prisoners. Defendant also had option to file grievance should prison decide not to use said drug. (Dissent filed.)

Dist. Ct. denied defendant’s motion for order authorizing Dist. Ct. to entertain second petition for collateral review, even though defendant had claimed that his 110-month sentence for two murders he committed at age 16 was unconstitutional under Miller, 132 S.Ct. 2455. Record showed that defendant’s sentencing judge had significant discretion under Indiana Code when sentencing defendant, and, in fact, considered in mitigation defendant’s age at time of instant murders. (Dissent filed.)

Dist. Ct. did not err in re-sentencing defendant to 240-month term of incarceration on felon-in-possession of firearm charge, even though: (1) Dist. Ct. had imposed 120-month term of incarceration for same felon-in-possession of firearm charge at first trial, along with consecutive 120-month sentence on companion use and carrying firearm conviction; (2) Ct. of Appeals vacated use and carrying of firearm conviction and remanded matter for new trial on carjacking and use and carrying firearm charges; and (3) defendant was subsequently acquitted of carjacking and use and carrying firearm charges. Dist. Ct. was not required to re-sentence defendant to same 120-month sentence originally imposed on felon-in-possession of firearm conviction, since: (1) original remand contemplated full re-sentencing hearing after completion of second trial; and (2) original 120-month sentence was not stand alone sentence, but rather was part of sentencing package. Ct. also rejected defendant’s contention that govt. waived any reliance on 15-year minimum sentence specified by Armed Career Criminal Act (ACCA), which otherwise applied to defendant’s sentence, even though both defendant and govt. had failed to note its applicability at first sentencing hearing. (Dissent filed.)