Criminal Law

Dist. Ct. did not err in denying defendant’s habeas petition challenging his reckless homicide conviction on grounds that Wisc. trial court improperly denied his request to proceed pro se on ground that, although defendant was competent to waive counsel, his limited literacy skills and education prevented him from competently proceeding to trial. While Ct. of Appeals observed that said denial came close to violating Faretta, 422 U.S. 806, because trial court had used two different standards of competency, and that it would have granted defendant’s request, it further found under AEDPA standards that trial court’s denial of defendant’s request to proceed pro se was not unreasonable application of Faretta given defendant’s limited literacy and education. However, remand for hearing was required on defendant’s ineffective assistance of counsel claim, where: (1) defendant made strong argument that prosecutor committed error in vouching for credibility of state’s witness during closing argument; and (2) record failed to contain statement of trial counsel as to why counsel had failed to object to prosecutor’s closing argument.

Dist. Ct. did not err in sentencing 80-year-old defendant to statutory 15-year minimum term of incarceration plus life-term of supervised release on charge of producing child pornography and posting it on internet. While defendant argued that his life term of supervised release was procedurally improper because Dist. Ct. had failed to separately justify its length by referencing factors set forth in 18 USC section 3583(c), Dist. Ct. need not separately justify length of supervised release where, as here, Dist. Ct.’s justification for imposing term of imprisonment can also apply to term of supervised release. Moreover, Dist. Ct. adequately justified instant life term of supervised release by acknowledging defendant’s sexual deviancy and ease in which crimes victimizing minors can be committed by means of computer, as defendant did in charged offense. Also, defendant waived any challenge to specific conditions of his supervised release, where defendant had advance knowledge of said conditions and expressly declined to raise any objection, although invited by Dist. Ct. to do so.

Dist. Ct. did not err in sentencing defendant to 180-month term of incarceration on drug distribution charge, where said sentence was based, in part, on finding that defendant was responsible for uncharged distribution of 3 kilograms of crack cocaine, and that defendant possessed firearm during his drug distribution activities. Dist. Ct. could properly credit testimony of customer, who stated that: (1) he made consistent drug purchases of crack cocaine from defendant in 2008 to 2010 time frame and intermittent crack cocaine purchases from 2012 to 2013; and (2) he saw defendant with firearm during said time frame. Moreover, said time frames overlapped time period of defendant’s stipulated conduct in charged offense, and said sales concerned same drug at issue in charged offense. Ct. also rejected defendant’s claim that Dist. Ct. committed procedural error in failing to address his arguments that govt. committed sentencing manipulation by allowing informant to make additional purchases of drugs in order to increase defendant’s sentence, and that Dist. Ct. should reject powder to crack ratio in sentencing guidelines, where: (1) Dist. Ct. was not required to address sentence manipulation argument; and (2) Dist. Ct. actually addressed powder to crack ratio argument in written sentencing order.

In prosecution on drug and firearms charges, Dist. Ct. did not err in denying defendant’s motion to suppress evidence seized from his home pursuant to search warrant issued by state court judge, even though defendant argued that search warrant was not supported by probable cause. State court lacked probable cause to issue warrant based upon affidavit from first confidential informant, where said informant described drug purchase that occurred 11 months prior to warrant application, and where police failed to give court any information regarding informant’s criminal history. However, affidavit of second informant provided sufficient probable cause to issue warrant, where said informant had no criminal history and provided testimony regarding recent drug-related incidents involving defendant. Record, though, failed to support jury’s guilty verdict on: (1) drug conspiracy charge, where record only showed buyer-seller relationship, and govt. failed to show that defendant either bought or sold drugs on credit; and (2) felon in possession of firearm and drug distribution charges stemming from incident in which third-party was found in possession of both items, since govt. was unable to show that defendant had possessed either item at time alleged in indictment.

Record contained sufficient evidence to support defendant’s conviction on charge of transporting minor across state lines to engage in criminal sexual activity, even though defendant contended that record failed to show that when he crossed state line, he intended to have sex with 14-year old victim. Victim testified that defendant: (1) booked motel room for 4-hour stay; (2) plied her with marijuana and cognac; and (3) forced himself on her after she objected and stated to her that he had paid for room and “was gonna get what I want.” Ct. rejected defendant’s claim that jury was confused over fact that it only had to resolve federal charge, but that federal charge also required jury to find that defendant violated state law after entering Illinois. Dist. Ct. erred, though, in modifying certain conditions of defendant’s supervised release while defendant’s appeal of said conditions was still pending with Ct. of Appeals, especially where prosecution sought said modifications. As such, Ct. found that Dist. Ct. could exercise jurisdiction to modify said conditions only after first receiving permission to do so under Circuit Rule 57.