Criminal Law

In prosecution on receipt of child pornography charge, Dist. Ct. did not err in denying defendant’s motion for Franks hearing, where defendant alleged that officer seeking search warrant for defendant’s home made intentionally false statement on warrant application that led to finding that police had established probable cause to support issuance of said warrant. While defendant alleged that officer had falsely stated in affidavit that IP address used by suspect was traced to defendant’s computer, where IP address could only identify modem that connect computers to Internet, Dist. Ct. could properly discount significance in any misstatement, where: (1) service account of user sharing incriminating files had been registered to defendant’s name and address; and (2) statement that IP address belonged to user’s computer was not false because term “computer” encompassed modem device. Fact that defendant’s neighbor could have accessed defendant’s modem wirelessly did not require different result.

Record contained sufficient evidence to support defendant’s conspiracy to distribute heroin conviction, even though defendant claimed that govt. had failed to show that he had any co-conspirator join in instant drug distribution operation. Record indicated that another individual drove defendant to and from Chicago on certain occasions to purchase heroin, and thus assisted him in accomplishing objective of conspiracy. Said individual also rented vehicles for said trips and drove defendant to locations to make drug deliveries. Fact that said individual did not obtain any financial gain arising out of her efforts to assist defendant did not alter her status as co-conspirator. Dist. Ct. also did not commit plain error in finding, as sentence enhancement, that defendant maintained drug house during his drug conspiracy, where witness testified that defendant had certain personal items stored at said house, had hid drugs in television console at said house, had stored large amount of cash in car parked at said house and had processed heroin at said house.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on ground that his trial counsel was ineffective, where Dist. Ct. found that defendant had procedurally defaulted said claim by failing to raise it in state appellate court until he had filed pro se reply brief at time he was still represented by counsel. Moreover, state appellate court’s discretionary refusal to consider defendant’s ineffective assistance of counsel claim constituted adequate ground to bar federal habeas review. Also, Ct. noted that defendant could have fired his appellate counsel to ensure that defendant’s preferred arguments, including his ineffective assistance of counsel claim, were raised and considered on merits by state appellate court.

Dist. Ct. did not err in sentencing defendant to above-guideline, 216-month term of incarceration on drug distribution charge that had statutory maximum sentence of 240 months. While defendant argued that Dist. Ct. had failed to give adequate explanation for sentence that was more than two years beyond high-end of guideline range, Dist. Ct. adequately addressed defendant’s main arguments in mitigation and then focused on defendant’s lengthy criminal record and its fear that defendant posed serious risk of recidivism. Moreover, defendant raised only borderline perfunctory arguments on appeal.

Dist. Ct. did not err in denying defendants’ habeas petitions challenging their convictions on ground that Wisconsin state trial court violated their 6^th Amendment rights under Presley, 558 U.S. 209, by forbidding members of public to attend their voir dire proceedings. Defendants forfeited instant issue on appeal where their trial counsel failed to object to trial court’s ruling that banned public from voir dire proceedings. Ct. rejected defendants’ claim that instant 6^th Amendment issue could only be waived via their open statement in court, as opposed to forfeited through counsel’s actions, where Ct. found that defendants had “evidently agreed” with their counsel not to seek admission of public at voir dire proceeding, especially where it was plausible that defendants did not wish to have public view voir dire proceeding given serious nature of their charges (reckless homicide and destruction of corpse).