Criminal Law

Dist. Ct. did not err in sentencing defendant to 120-month term of incarceration on unlawful possession of firearm charge based in part on Dist. Ct.’s imposition of two-level obstruction of justice enhancement that stemmed from defendant’s trial testimony in which he denied that he had possessed gun that was found near defendant. Ct. rejected defendant’s claim that enhancement denied him right to fair trial, where Dist. Ct.’s perjury finding used to support enhancement was based solely on defendant’s testimony that was inconsistent with testimony provided by govt. witnesses. Moreover, enhancement was appropriate, where Dist. Ct. could properly find that defendant’s version of what happened at arrest scene (i.e. that he had thrown down cell-phone and not handgun shortly before his arrest) represented false testimony on material matter, rather than testimony that was result of confusion, mistake or faulty memory.

In action by defendants (convicted sex offenders who had completed their sentences), who challenged Wisconsin sex offender registration statute that required defendants to pay $100 annual registration fee, Dist. Ct. erred in finding that said “fee” was unconstitutional “fine” as form of retroactive punishment, and as such violated ex post facto clause of U.S. Constitution. Record failed to contain any evidence that $100 annual fee was grossly disproportionate to state’s annual cost of keeping track of sex offender registrants, so as to support Dist. Ct.’s finding that “fee” was really impermissible “fine.”

Record contained sufficient evidence to support defendant’s convictions on producing child pornography charges, even though defendant argued that govt. failed to satisfy commerce element. Govt. established that defendant’s two computer hard drives that stored child pornography images were manufactured in Thailand and China, which was sufficient to satisfy commerce element of charged offenses. Moreover, Ct. rejected defendant’s claim that commerce element could only be satisfied by showing that camera, which had generated child pornography images, traveled in interstate commerce. Dist. Ct. also did not err in admitting under Rule 413 testimony regarding uncharged sexual molestation of minor, where defendant’s charged child pornography offenses involved molestation of different minor, and where Rule 413 allows testimony of earlier sexual assault to show defendant’s propensity to commit instant charged offenses.

In prosecution on drug distribution charges arising out of series of secretly recorded controlled drug buys, Dist. Ct. did not err in admitting testimony of FBI agent, who offered opinions regarding meaning of words and phrases contained in transcripts of recorded conversations, even though defendant argued that agent improperly testified as expert witness under guise of lay witness. Govt. may use law enforcement officer as both expert and lay witness during same trip to witness stand, and instant agent testified only as lay witness, where: (1) he based his opinions on his personal observations and perceptions derived from investigation into instant charged offense; and (2) subject matter of opinions did not require scientific, technical or specialized knowledge. Fact that agent was experienced investigator did not alter nature of his testimony. Dist. Ct. also did not err in allowing jury to view transcripts containing agent’s interpretation of code words and phrases, since Dist. Ct. has discretion to allow jury’s viewing of said transcripts as listening aids, and since defendant failed to identify any inaccuracies of agent’s interpretations contained in transcript.

Dist. Ct. did not err in sentencing defendant to 170-month term of incarceration on drug distribution charge, after Ct. of Appeals had vacated original 262-month term of incarceration due to fact that Dist. Ct. had originally failed to sentence defendant based on Fair Sentencing Act of 2010. While defendant argued that Dist. Ct. had failed on remand to consider his two principal arguments in mitigation regarding alleged inapplicability of career offender guideline, as well as alleged inapplicability of instant full guideline sentence, Dist. Ct. actually carefully considered and rejected both arguments. However, limited remand was required to determine whether defendant’s sentence should be adjusted to account for eight months defendant was held in pretrial custody that Bureau of Prisons declined to give defendant credit.

Dist. Ct. did not err in sentencing defendant to 57-month sentence on unlawful possession of firearm charge, even though said sentence was 16 months above applicable guideline. While defendant argued that new sentencing hearing was required, where Dist. Ct., in basing instant sentence in part on fact that defendant had 17 unadjudicated arrests, violated policy statement set forth in section 4A1.3(a)(3) of guidelines by considering said arrests, Dist. Ct.’s failure to follow section 4A1.3(a)(3) was not grounds for vacatur of sentence, since defendant’s substantial history of arrests, that were similar in nature to charged offense, was reliable indicator that defendant posed recidivism risk that required longer sentence under section 3553(a) factors. Moreover, defendant admitted at sentencing hearing to having long history of criminal conduct.