Criminal Law

Dist. Ct. did not err in imposing 160-month term of incarceration on drug conspiracy charge involving over 50 grams of meth, where said sentence was based in part on enhancement under section 2D1.1(b)(1) of USSG for possession of two firearms seized from houses used in drug conspiracy. While defendant argued that she did not possess said firearms, which were otherwise not foreseeable to her, Dist. Ct. could properly look to scale, scope, nature and defendant’s role in conspiracy to find that possession of said firearms by co-conspirators were foreseeable to her where: (1) defendant was engaged in daily activities of organization that involved large sums of money and drugs; (2) defendant regularly made deliveries to three houses that contained guns; and (3) defendant was arrested holding over $100,000 in meth. Also, Dist. Ct. did not commit plain error in failing to sua sponte apply safety-valve provisions of 18 USC section 3553(f), where issue as to whether instant firearm enhancement application served to preclude any eligibility for safety-valve treatment was one of first impression.

Dist. Ct. did not err in dismissing for lack of personal jurisdiction plaintiff’s action against defendant filed in Illinois, alleging that plaintiff sustained personal injuries as he was attempting to board chairlift operated by defendant. Defendant owned and operated ski slopes only in Wisconsin and had its principal place of business in Wisconsin. Moreover, plaintiff did not engage in print or broadcast advertisement in Illinois, and its attendance at one yearly tradeshow in Chicago was insufficient to establish personal jurisdiction where customers could not purchase tickets during trade show, and where plaintiff otherwise had no business office in Illinois. Fact that substantial percentage of defendant’s customers at its ski reports are from Illinois did not require different result.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his death sentence, even though defendant argued that trial court improperly relied on non-statutory aggravating factors and failed to consider defendant’s mitigating evidence when imposing instant death sentence. Under deferential AEDPA standard of review, state supreme court’s factual determinations that trial court had not relied on non-statutory aggravating factors when imposing death sentence, and that trial court had considered all proffered evidence in mitigation were not unreasonable. Fact that state supreme court relied in part on trial court’s assurance that she considered only statutory factors when imposing death sentence did not require different result.

Dist. Ct. erred in granting defendant’s habeas petition challenging his conviction on charges of kidnapping and aggravated battery based on his claim that he was denied his right to counsel when state trial court, after initially granting defendant’s request to represent himself, failed to grant his subsequent request for appointment of counsel made three days prior to start of trial. Under deferential AEDPA standard of review, defendant’s request for appointment of counsel was untimely under circumstances of case, where he had previously and successfully sought to represent himself, and pro se defendant who requests counsel at last minute runs risk that judge will hold him to his original decision in order to avoid both disruption of court’s schedule and inconvenience of participants in trial, which in this case involved potential re-scheduling of 12 witnesses.

Dist. Ct. did not err in sentencing defendant to 15-year term of incarceration on possession and transportation of child pornography charges, where said sentence was based in part on Dist. Ct.’s own extensive examination and disagreement with defendant’s expert, who opined that defendant was not pedophile. Dist. Ct. was not required to recuse herself based on her own extensive knowledge about pedophilia, which, according to defendant, led Dist. Ct. to unfairly reject opinion of his expert, since: (1) extensive questioning by court will rarely be viewed as prejudicial to criminal defendant where, as here, there was no jury; and (2) defendant failed to show any favoritism by Dist. Ct. in her 11 minute questioning of his expert. Moreover, information that Dist. Ct. knew about child exploitation was available to general public. Also, while Dist. Ct. erred in finding that defendant had exhibited pedophilic identification since said finding was not based on any expert opinion contained in record, no reversible error occurred since it was unlikely that Dist. Ct. would have issued different sentence in absence of such finding.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on grounds that his appellate counsel was ineffective when she failed to raise two issues, i.e., trial court’s denial of defense counsel’s request to impeach govt. witness with pending forgery charge and its denial of defense counsel’s attempt to introduce reputation evidence about different govt. witness. Appellate counsel is free to select most effective issues to appeal, and although defendant established that error occurred with respect to both issues, defendant failed to show that said issues were clearly stronger than three issues actually raised by appellate counsel that resulted in remand on one issue and produced dissenting vote as to other two issues. Defendant also failed to establish any violation of right to compulsory process, even though trial court denied defendant’s request to introduce testimony of 11-year old boy, who at time of trial would have testified that someone else was responsible for murder. Record showed that proposed witness recanted his story at post-trial hearing. As such, and because court could look at witness’ proposed testimony and testimony actually given after defendant’s trial, defendant could not establish that witness’ testimony would have been material at his trial.

Ct. of Appeals reversed and remanded three sentences, where Dist. Ct. had imposed various “standard” and “special” conditions under circumstances where Dist. Ct. either failed to articulate need for said conditions or generated conditions that were impermissibly vague or overbroad. Among such errors were: (1) imposing standard condition without making findings consistent with section 3553(a) factors; (2) requiring defendant to refrain from excessive use of alcohol where “excessive use” was not defined; (3) requiring defendant to support his dependents and meet other family obligations where defendant did not have any dependents at time of sentencing; (4) requiring defendant to notify probation officer of change in employment where condition was unclear as to whether it applied to change of jobs with same employer; (5) banning defendant from using “mood altering substances” where said phrase was not defined; and (6) banning defendant from viewing pornographic materials where ban covered material protected by 1st Amendment. Ct further recommended that defense and govt. counsel make their recommendations and/or objections to proposed conditions of supervised release in advance of sentencing hearing.

Dist. Ct. did not err in finding that entirety of defendant’s disability insurance benefits generated from privately purchased disability insurance policy was subject to garnishment proceeding under Mandatory Victims Restitution Act to satisfy $800,000 restitution order entered in defendant’s criminal mail fraud case. Ct. rejected defendant’s claim that portion of said disability payments was exempt from garnishment and further rejected claim of defendant’s ex-wife, who had previously been awarded child support from said disability payments, that her interest in said payments was superior to government’s restitution lien in said payments.

In prosecution on conspiracy to distribute heroin charge, Dist. Ct. did not abuse its discretion under Rule 611(b) in allowing prosecutor to cross-examine defendant on statements defendant made to DEA agents in which defendant had identified individuals who had supplied him with heroin and had participated in brokered drug deals with defendant and his associates. While defendant had argued that said questions went beyond scope of his direct examination, said questions were not improper, where questions touched on issue of defendant's motive for purchasing drugs from his supplier and attempted to debunk defendant’s claim in his direct testimony that his purchase of drugs was only to satisfy his heroin addiction.