Criminal Law

Dist. Ct. did not err in sentencing defendant to 18-month term of incarceration and five year term of supervised release on charge of failure to register as sex offender arising out of prior attempted sexual battery of minor conviction, even though defendant argued that Dist. Ct. had ignored his mitigation arguments. While Dist. Ct. only briefly mentioned defendant’s mitigation arguments concerning his educational, employment and volunteer efforts, defendant’s mitigation arguments were contained in PSR, which Dist. Ct. had reviewed and considered. Moreover, Dist. Ct.’s questioning of defendant indicated that it had considered defendant’s mitigation arguments and had simply rejected them. Also, Dist. Ct. could base certain terms of supervised release on defendant’s underlying 26-year-old attempted sexual battery conviction where: (1) defendant had never participated in sex offender treatment program that was required as term of probation in attempted sexual battery conviction; and (2) defendant’s subsequent criminal history, as well as his failure to register as sex offender, indicated potential for defendant to re-offend.

In prosecution on drug distribution charge, Dist. Ct. erred in denying defendant’s motion to suppress drugs found in defendant’s vehicle, as well as his subsequent confession, where police lacked reasonable suspicion to stop defendant’s vehicle on alleged violation involving display of his rear license plate. This is so, Ct. found, because arresting officer could not have reasonably believed that defendant’s commonplace license plate frame violated state law. Ct. rejected Dist. Ct.’s belief that because certain aspects of plate were hidden, violation occurred even though officer conceded that he could eventually decipher plate as he drew near to vehicle.

Record contained sufficient evidence to support jury’s guilty verdict on four counts of wire fraud arising out of Ponzi scheme, where defendant misrepresented to investors that their investment money was being deposited into secure account to facilitate additional lines of credit to build low-income housing. Rational jury could find that defendant knew that what he was telling investors was false, and that he acted with intent to defraud, where emails indicated that defendant knew that no low-income housing project existed, and that investment funds were taken out of secure escrow account and used for other purposes, including payment of promised inflated interest to initial investors.

Dist. Ct. erred in sentencing defendant to 71-month term of incarceration on charges of obstructing IRS and passing fictitious financial documents with intent to defraud, where said sentence was based in part on Dist. Ct.’s improper calculation of tax loss under section 2T1.1 of USSG. Record showed that defendant sent IRS series of bad checks to satisfy certain tax liens levied on defendant’s properties, and Dist. Ct. erred in calculating tax loss by aggregating amount of each fraudulent check that defendant attempted to pay off same debt owed to IRS. As such, Dist. Ct. should have calculated tax loss by amount that was actually owed to IRS when defendant first attempted to pay IRS. Dist. Ct. also erred in including penalties and interest in tax loss calculation.

Dist. Ct. did not err in dismissing for lack of jurisdiction defendant’s habeas petition challenging his continuing criminal enterprise (CCE) conviction, where said petition represented defendant’s second habeas petition that was barred under 28 USC section 2255. Record showed that defendant had previously filed 1997 habeas petition that resulted in vacatur of defendant’s drug conspiracy conviction, but left undisturbed defendant’s CCE conviction. Moreover, although Supreme Court’s 1999 decision in Richardson, 526 US 813, invalidated same jury instruction that was given in defendant’s case, Dist. Ct. could properly find that instant petition was impermissible successive petition, as contemplated under Suggs, 705 F.3d 279, where defendant's CCE conviction went undisturbed in his prior habeas petition.

Ct. of Appeals denied defendant’s request for certificate of appealability with respect to Dist. Ct.’s denial of defendant’s habeas petition challenging on several grounds his conviction on charges of first and second degree child sexual abuse. Ct found that defendant had failed to raise substantial showing that his due process rights were violated, even though defendant argued that his conviction was infirm in absence of any DNA evidence to support victim’s identification of him as culprit, where Ct. held that credible testimony of one identification witness was sufficient to support said conviction. Moreover, Ct. found no Double Jeopardy Clause violation, where state legislature indicated intent to punish each act of abuse separately.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged on double jeopardy grounds defendant’s convictions on 10 counts of bail jumping, where defendant was also convicted in same trial on 10 underlying substantive offenses that served as basis for finding that defendant had violated terms of his bail. While defendant argued that his bail jumping and underlying offenses constituted same offenses under Double Jeopardy Clause, defendant failed to show that Wisc. court’s determination that bail jumping and conduct underlying bail jumping charge were distinct and separate charges \was contrary to any well-established U.S. Supreme Court precedent. Moreover, even if both bail jumping and underlying offense proscribed same conduct, Double Jeopardy Clause would not prevent cumulative punishments in instant single trial setting, where Wisc. court found that Wisc. legislature intended for bail jumping statute to punish defendant separately from any underlying offense.