Criminal Law

Ct. of Appeals denied its own motion to rehear en banc four appeals filed by govt. where original panel found that reduced sentence ranges under Fair Sentencing Act of 2010 for crack cocaine convictions did not apply to sentences that were imposed after August 3, 2010 for conduct that occurred prior to that date. Under Fischer, 635 F.3d 336, date of sentencing is irrelevant such that reduced sentencing ranges under said Act applied only to offenses committed on or after August 3, 2010. Moreover, instant motion to rehear en banc was generated after govt. had issued Change of Position statement asserting that said Act should be applied retroactively to those prosecutions in which conduct occurred before August 3, 2010, but where original sentence was imposed on or after said date. (Dissent filed.)

Dist. Ct. did not err in denying defendant's habeas petition challenging his conviction on charge of operation of motor vehicle while under influence of cocaine even though defendant argued that trial court should have dismissed case where City of Milwaukee destroyed defendant's vehicle pursuant to its internal policy, such that defendant was prevented from establishing that vehicle's brakes were responsible for his erratic driving. Wisc. state courts could properly find that there was no due process violation associated with destruction of vehicle where: (1) defendant failed to establish that destruction was done in bad faith; and (2) exculpatory value of vehicle was not apparent before it was destroyed. Ct. rejected defendant's claim that govt. had duty to preserve vehicle where, as here, he was in coma at time of its destruction.

In prosecution on unlawful possession of firearm charge arising out of police stop of defendant, Dist. Ct. did not err in denying defendant's motion to suppress firearm even though defendant argued that police lacked any reasonable ground in instant Terry stop to believe that he might be armed with weapon at time police ordered him out of his car to perform protective frisk. At time of defendant's stop, officers were aware that defendant and his vehicle generally matched descriptions given by 911 caller, who reported recent attempt to commit burglary of nearby home, and officers had reasonable ground on which to believe that defendant might be armed where burglary was type of crime that often involved weapon.

In prosecution on drug distribution charge, Dist. Ct. did not commit plain error in admitting evidence of defendant's uncharged bad acts involving testimony that defendant routinely gave crack cocaine to others for purpose of future sale, even though govt. had failed to identify witness giving said testimony in its Rule 404(b) notice of intent to present said testimony. Govt. did include name of other witness in said notice that would have given similar testimony, and disputed evidence was relevant to establish defendant's knowledge and intent where defendant had denied possession of crack cocaine at issue in charged offense. Moreover, admission of said evidence did not affect defendant's substantial rights where govt. offered other evidence to establish defendant's guilt based on defendant's flight from arresting officer and on officer's testimony that he found significant amount of crack cocaine on ground near where defendant was initially apprehended.

In prosecution on Hobbs Act robbery charge that involved planning of bank robbery by defendant and govt. informant, Dist. Ct. did not err in failing to give missing witness instruction with respect to govt.'s failure to call informant as witness. Said instruction was inappropriate where record showed that informant was physically available to both parties, and where informant was no longer paid govt. informant at time of trial and had expressed anger at govt.'s continued detention of him until conclusion of trial. Defendant also failed to show how informant's testimony would have been helpful to defendant, and failure to give said instruction was not otherwise reversible error where defendant was able to argue to jury significance of govt.'s failure to call informant as witness.

Dist. Ct. erred in granting defendant's writ of coram nobis challenging his guilty plea on mail fraud charges on grounds that her trial counsel was ineffective for failing to inform her that her guilty plea carried risk of her future deportation. Dist. Ct. erred in finding that 2010 opinion in Padilla (which concluded that said failure constituted ineffective assistance of counsel) did not announce new rule under framework set forth in Teague, 489 U.S. 288. Accordingly, holding in Padilla could not be applied retroactively to instant collateral attack on defendant's conviction. (Dissent filed.)

In prosecution on possession of child pornography and attempting to entice minor to engage in sexual act charges, Dist. Ct. did not commit reversible error in admitting evidence of other on-line chats that defendant had with other individuals purporting to be minors. While said evidence of uncharged acts was sufficiently similar to facts in instant case where defendant used same identification and sought similar requests for sexual acts from individuals purporting to be minors, Dist. Ct. erred in failing to give explicit reason to support its conclusion that said evidence, which contained sexually graphic conversations and constituted significant portion of trial, was not unlawfully prejudicial. However, any error was harmless given weight of other evidence establishing defendant’s guilt. Also, Dist. Ct. did not err in denying defendant’s motion to suppress evidence contained in his home computer, even though defendant claimed that police obtained consent to serach computer after he had requested counsel, since request for consent did not constitute interrogation within meaning of Miranda.

Ct. of Appeals lacked jurisdiction to consider defendant’s appeal of her below-guidelines sentence following defendant’s guilty plea even though defendant argued that she was entitled to lower sentence where govt. acted in bad faith in not fulfilling supplemental agreement to amend original plea agreement based upon her continued assistance to govt. in providing information in other criminal matters. Original plea agreement contained waiver of her right to appeal sentence, and defendant never sought to withdraw her guilty plea entered under said agreement.

In prosecution on bribery-related charges arising out of defendant’s payments on home improvements to alderman’s house in exchange for alderman’s support of defendant’s request for zoning change on defendant’s property, Dist. Ct. did not err in granting govt.’s motion in limine to admit evidence concerning defendant’s production of fabricated invoice that involved testimony by defendant’s counsel under crime fraud exception to attorney-client privilege. Dist. Ct. could properly conduct contested in camera hearing in which testimony was elicited in govt.’s presence, especially where govt. was aware of existence of instant invoice, and where record suggested that back-dated invoice had been fabricated. Moreover, record supported Dist. Ct.’s finding that crime fraud exception to attorney-client applied where testimony indicated that defendant and his attorney discussed methods to present defendant in most favorable light in future meeting with govt., that defendant’s attorney expressed doubt over whether subject invoice had ever been sent to alderman, and that defendant intended for his attorney to communicate false story about invoice to govt.