Criminal Law

Dist. Ct. did not err in sentencing defendant to 105-month term of incarceration on charge of traveling in interstate commerce and failing to register as sex offender, where said sentence was based, in part, on 6-level enhancement under section 2A3.5(b)(1)(A) of USSG for committing sex offense while in failure-to register status. Dist. Ct. properly applied “categorical approach” in finding that defendant’s incest of his 18-year-old daughter qualified as “sex offense” for purpose of imposing instant enhancement, where Indiana’s incest statute indicated that incest was criminal offense that had as element sexual acts or sexual contact with another. Moreover, daughter’s testimony that she did not consent to defendant’s sexual conduct precluded defendant from asserting that instant incest involved consensual sexual conduct that would have prevented imposition of instant enhancement.

In prosecution on charge of felon in possession of firearm, Dist. Ct. did not err in denying defendant’s motion to quash his arrest and suppress gun seized from his vehicle, under circumstances where police officer received tip from reliable confidential informant that individual who matched defendant’s description was selling drugs from his vehicle at certain location, and where defendant was arrested at scene by another officer who had received report from first officer that he had witnessed defendant sell drugs from his car at said location to another individual. Instant arrest and subsequent search of defendant’s car was supported by probable cause based on informant’s tip and personal observations of first officer, and fact that arresting officer did not personally witness purported drug transaction did not require different result since collective knowledge doctrine applied. Moreover, subsequent search of defendant’s car was permissible where arresting officer could reasonably believe that vehicle contained contraband or other evidence of illegal activity.

Dist. Ct. did not err in denying defendant’s habeas petition alleging that his trial counsel rendered ineffective assistance of counsel by advising him to forego direct appeal and to pursue habeas relief in defendant’s efforts to challenge Dist. Ct.’s order denying his motion to vacate his guilty plea. Counsel’s advice amounted to strategic choice that was not erroneous, where: (1) defendant’s challenge to voluntariness of his guilty plea relied on alleged facts that were not contained in record, and thus could not have been considered in any direct appeal; and (2) any direct appeal raising ineffective assistance of counsel claim that could not be fully addressed in direct appeal could have risked finding of procedural default on said claim in any subsequent habeas petition. Defendant also failed to establish any prejudice arising out of counsel’s advice to forego direct appeal.

In prosecution on Medicare fraud charge stemming from defendant’s submission of false claims of services rendered to clients, Dist. Ct. did not err in denying defendant’s motion to admit two out-of-court statements made by third-party, who, according to defendant, gave inculpatory statements with respect to instant charge. Said statements did not qualify for exception to hearsay rule under Rule 804(b)(3) as statements against penal interest, even though third-party stated that defendant had done nothing wrong, and that he (third-party) “disregarded the law,” since third-party’s statements concerned actions that were not at issue in charged offense. Moreover, third-party’s close relationship to defendant called into question whether instant hearsay statements were trustworthy. Dist. Ct. also did not err in admitting testimony that defendant was setting up similar practices offering psychological services in other states, even though defendant argued that such testimony constituted improper propensity evidence. Said testimony qualified as either direct evidence regarding instant charged offense or as admissible evidence of defendant’s knowledge and intent with respect to charged offense.

In prosecution on drug conspiracy charges arising out of long-term series of drug sales by two gangs and others, Dist. Ct. erred in failing to give buyer/seller jury instruction with respect to one defendant, even though four witnesses testified that they engaged in drug transactions with said defendant, and two witnesses stated that they occasionally sold drugs to said defendant on credit. Sporadic drug purchases on credit were insufficient to defeat said defendant’s request for buyer/seller instruction, and none of subject drug sales had usual elements of drug conspiracy such as consignment arrangements, profit sharing or distribution agreements. Moreover, evidence was equivocal as to whether said defendant was fellow gang member with others accused of drug conspiracy. Also, Dist. Ct. did not err in denying defendants’ Batson claim that prosecutor used preemptory challenges to excuse two African-American jurors. Although Dist. Ct. found as “less than persuasive” prosecutor’s explanation that he excused one juror because juror was “self-employed,” Dist. Ct.’s ultimate finding that defendant failed to show that prosecutor had improper motive was entitled to deference, especially where two African-American jurors remained on jury under circumstances where prosecutor had not used all of his challenges.