Criminal Law

Dist. Ct. did not err in sentencing defendant to 130-month term of incarceration on charge of transporting child pornography, even though said sentence was based in part on 4-level enhancement under section 2G2.2(b)(4) of USSG for transporting material that portrayed minors in sadistic or masochistic conduct. While defendant argued that said enhancement constituted improper double-counting where he also received enhancement under section 2G2.2(b)(2) of USSG that also pertained to images of minors, record showed that certain images seized from defendant fit description contained in section 2G2.2(b)(4). Moreover, there is no prohibition for defendant receiving enhancements under both section 2G2.2(b)(2) and (b)(4). Also, Dist. Ct. did not err in failing to expressly address defendant’s argument that he deserved lower sentence due to an alleged enhanced chance that he would be abused in prison due to nature of his conviction, where defendant did not tailor his argument to his unique personal characteristics.

Defendant was not entitled to new trial on drug distribution charge, even though police used drug dog’s alert to presence of drugs while on defendant’s porch to obtain search warrant to enter defendant’s home, where police eventually found drugs. Said search occurred prior to Jardines, 133 S.Ct. 1409, where U.S. Supreme Ct. found that police could not use drug dog under similar circumstances to obtain probable cause to search defendant’s home because drug sniff itself was search protected under 4th Amendment. However, 7th Circuit case law at time of instant drug sniff allowed police to use drug dog’s alert to obtain search warrant, such that evidence obtained by instant search warrant could not be suppressed, where police based their actions on good faith reliance on existing case law.

In prosecution on robbery and firearm charges, Dist. Ct. erred in failing to act on defendant’s motion to waive his counsel prior to conducting hearing on defendant’s motion to suppress evidence, where defendant’s motion to waive counsel was filed nine days before hearing on motion to suppress. Although Dist. Ct. eventually granted defendant’s motion to represent himself, defendant had constitutional right to represent himself at suppression hearing, especially where Magistrate Judge found defendant to be competent at conclusion of said hearing. Moreover, said error was not susceptible to harmless error defense. However, instant remand is limited to new hearing on motion to suppress where defendant can represent himself, such that if Dist. Ct. denies said motion, defendant’s conviction will be reinstated.

In prosecution on wire fraud charge arising out of defendant’s scheme to sell used forklifts that defendant did not have in his possession, Dist. Ct. did not err in allowing prosecutor to ask whether defendant’s practice of drafting checks made out to “cash” that had on memo line “cost of goods sold” would qualify as valid business deduction in tax audit, even though defendant argued that said question pertained to improper propensity evidence under Rule 404(b). Said evidence was admissible to prove defendant’s intent to commit wire fraud and was relevant to support govt. claim that defendant used proceeds of said checks to evade $328,881.29 in charge-backs arising out of customers’ requests for refunds for undelivered forklifts. Ct. also found no error in giving instruction that told jury that “intent to defraud” included acts done with intent to deceive customers in order to gain money for defendant or to generate loss to third-party.

Dist. Ct. did not err in denying defendant’s habeas petition, alleging that his counsel was ineffective for failing to challenge attempted murder instruction that failed to specifically inform jury that defendant, with intent to kill, engaged in conduct which constituted substantial step toward said killing. Defendant failed to establish any prejudice in defective instruction, where: (1) victim, who had been hit on head with tire iron before losing consciousness, overheard either defendant or accomplice state “Don’t leave until she is dead;” and (2) both prosecution and defense counsel made clear during closing arguments that jury was required to find that defendant intended to kill victim in order to convict defendant of attempted murder.