Criminal Law

Dist. Ct. did not err in denying defendant’s habeas petition challenging his Wisc. conviction for sexual assault of child on ground that his trial counsel was ineffective for failing to challenge time period for alleged assault set forth in charging documents, which, according to defendant, prevented him from preparing alibi defense. State Appellate Court rejected defendant’s claim on ground that defendant had failed to allege any facts showing that he would have been able to provide alibi defense had trial counsel pursued motion seeking more specific date-range for alleged sexual assault. Moreover, defendant failed to show that State Appellate Court’s decision was unreasonable application of Strickland’s requirement that defendant be able to show that trial counsel’s conduct was prejudicial to his case.

Dist. Ct. did not err in modifying terms of defendant’s supervised release to require defendant to attend sex offender assessment and treatment program, based upon Dist. Ct.’s discovery two years after instant sentencing hearing that defendant had been convicted on state charge of sexual abuse of minor. Ct. rejected defendant’s contention that Dist. Ct. lacked authority to modify terms of his supervised release, even though he had not previously violated said terms, and record showed that modified terms of supervised release were related to sentencing goals of deterrence, rehabilitation and protection of public, where defendant’s sexual abuse conviction was contemporaneous to his federal drug and firearm convictions, but had not been entered by time of his federal sentencing hearing.

Dist. Ct. did not err in dismissing as untimely defendant’s habeas petition challenging his 1999 Wisc. sexual assault convictions, where said petition was initially filed prior to defendant exhausting his state remedies, and where defendant had failed to file state habeas petition by March, 2003 deadline for doing so established by Dist. Ct. Defendant argued that he was entitled to equitable tolling, where he informed retained counsel of said deadline, and where counsel had disregarded said deadline based on erroneous belief that federal deadline for filing habeas petition had also been extended. Ct., though, found that defendant was not entitled to equitable tolling since: (1) defendant did not file state habeas petition until two years after deadline set by Dist. Ct.; and (2) mistake made by retained counsel was of “garden variety” dealing with miscalculation of filing deadline, which was insufficient to support application of equitable tolling. Moreover, defendant failed to establish his own due diligence during two-year gap between time his counsel withdrew from case and defendant’s filing of state habeas petition.

In prosecution on charges of aiding and abetting use and carrying of firearm by third-party during bank robbery, defendant waived any error with respect to Dist. Ct.’s use of certain jury instruction where defendant’s counsel indicated that he had no objection to proposed instruction when asked by Dist. Ct. Moreover, instruction accurately stated law requiring govt. to show that aiding and abetting related to use of firearm rather than aiding and abetting of bank robbery. Also, while defendant’s 7-year mandatory minimum sentence under 18 USC section 924(c)(1)(A)(ii) was based on facts not found by jury, and thus was erroneous under Alleyne, 133 SCt 2151, defendant was not entitled to new sentencing hearing where fact that served to increase his mandatory minimum sentence, i.e., brandishing of firearm, was amply supported by evidence in record.

Record contained sufficient evidence to support charge alleging that defendant failed to report foreign bank accounts on his income tax returns, even though defendant had filed required documents within time allotted by extensions granted by IRS. Defendant conceded that he did not file required reports for each calendar year from 2005 through 2007 by June 30 of following year, and although IRS published Notices that allowed for certain individuals to file late reports, defendant did not qualify for said extensions where at time extensions were granted, defendant was already under civil examination, and where defendant had not reported all of his taxable income at time he filed required reports. Moreover, Dist. Ct. did not err in precluding defendant from introducing evidence establishing that entities that had tendered money to defendant had in turn received loans from other entities, so as to support defendant’s defense that money he had received were loans instead of taxable income, since defendant had failed to present any legal support for said testimony. Record also indicated that defendant had failed to report more than $663,000 from corporate entities that supported charges of filing false tax returns.

Dist. Ct. did not err in sentencing defendant to below-guidelines, 48-month term of incarceration on wire fraud charges stemming from scheme in which defendant received approval to build housing complex under circumstances in which defendant lied to city officials regarding his ability to obtain outside financing for project and as to how he would build said housing units. Dist. Ct. could properly find that intended loss arising out of scheme totaled $1,924,810, which represented amount of public financing defendant would have received for completed project, even though actual loss to private entities was only $66,449.04. Moreover, Dist. Ct. could properly find that defendant exercised control over five or more individuals when perpetrating scheme, even though said individuals played only specific, limited roles in carrying out scheme.