Criminal Law

Record failed to contain sufficient evidence to support defendant’s conviction on charge of transporting and possessing contraband cigarettes in violation of 18 USC section 2342(a), even though defendant possessed 23,400 cigarettes, which did not bear Indiana tax stamps, as well as bag containing $15,000 in cash. While record showed that defendant had violated Indiana’s requirements regarding transportation of unstamped cigarettes over Indiana highways, govt. failed to prove beyond reasonable doubt that defendant had intended to sell said cigarettes in Indiana, so as to trigger obligation to obtain Indiana tax stamps for said cigarettes and to establish that said cigarettes met contraband definition in section 2342(a).

Dist. Ct. did not err in sentencing defendant to 57-month term of incarceration on real estate fraud charge, after finding that said offense involved loss of $2.36 million based on losses to properties that were covered by charged offense, as well as other similar losses incurred during defendant’s scheme. While defendant argued that said loss amount should have been reduced by amounts victims received from sales of properties used to secure fraudulently obtained loans, defendant waived any issue with respect to amount of loss, where defendant’s counsel withdrew his objection to loss calculation at trial. Fact that Dist. Ct., during prior remand, revised downward restitution award based on said sales did not require new loss calculation or preserve issue for subsequent review.

Record contained sufficient evidence to support jury’s guilty verdict on charges of bribery and conspiracy to bribe Ho-Chunk Nation legislator in order to secure favorable treatment for three different vendors seeking to do business with said Nation. Although defendant argued that said legislator was unaware of his efforts to extract money from potential vendors, and that defendant had kept all proceeds for himself, record showed existence of series of emails that were copied to legislator, where defendant held himself out as legislator’s agent and demanded cash and other remuneration in exchange for legislator’s action. As such, jury could have concluded that legislator was knowing participant in bribery conspiracy. Dist. Ct. also did not err in admitting false invoices submitted by defendant to vendor, since such evidence was relevant to show means defendant used to mask efforts that defendant and legislator used to obtain bribes from said vendor.

In proceeding seeking to apply defendant’s assets to $12,376,310 restitution order, Dist. Ct. erred in granting govt. request to have third-parties turn over $300,738 in defendant's additional assets to what govt. had previously acquired, but not yet distributed to defendant’s victims in his underlying healthcare fraud conviction. Defendant objected to govt. turnover request on grounds that defendant’s existing assets that had previously been turned over to govt. were sufficient to satisfy restitution order, and Dist. Ct. failed to allow parties to conduct discovery and to hold evidentiary hearing on issue prior to granting govt.’s request. Ct. rejected govt. argument that any excess money collected from defendant’s assets over restitution amount could be applied to defendant’s $20 million civil judgment and further found that govt. could not use Mandatory Victims Restitution Act in instant proceeding to collect on $20 million civil judgment.

Defendant was barred from appealing his 168-month sentence on drug distribution charge, where defendant had agreed to appeal waiver clause in his plea agreement. Although defendant argued that appeal waiver clause should not apply because his counsel was ineffective by failing to challenge Dist. Ct.’s finding that he was career offender, and because said ineffectiveness was “patent,” clear language of appeal waiver clause covered instant ineffective assistance of counsel claim, regardless of whether counsel’s ineffectiveness might be characterized as patent, subtle or otherwise.

In prosecution on unlawful possession of firearms charge, Dist. Ct. did not err in suppressing defendant’s gun seized from black car in which defendant was passenger, even though defendant argued that police lacked reasonable suspicion to justify stop of said car. Police had reasonable suspicion to stop defendant’s vehicle where: (1) just minutes prior to stop, police received multiple reports of gunfire coming from black vehicle; (2) reports of gunfire concerned dangerous crime in instant urban area; and (3) stop occurred one mile from location of gunfire at time when there was only light traffic during late night hour, and when defendant’s vehicle matched color description of car that was subject of reports.