Criminal Law

Dist. Ct. did not err in sentencing defendant to 15-year term of incarceration for unlawful possession of firearm charge, where said sentence was based, in part, on finding that defendant qualified for enhanced sentencing treatment under Armed Career Criminal Act. Ct. of Appeals rejected defendant’s contention that his three Indiana burglary convictions did not qualify as crimes of violence because state statute’s definition of burglary was broader than federal statute’s definition of burglary. It also rejected defendant's claim that instant burglaries, which occurred at different places on April 4, 1991, April 8, 1991 and April 11, 1991, were not committed on separate occasions, and in any event, was not issue that could be resolved by Dist. Ct., since only jury could make such determination.

In prosecution on sex-trafficking charges, Dist. Ct. did not err in allowing defendant to represent himself, after he had indicated that his two court-appointed counsel were not representing his best interests. Although issue arose as to whether defendant was competent to stand trial, Dist. Ct. did not err in finding that defendant was competent to stand trial based on testimony of expert witness who conducted thorough examination of defendant. Moreover, while defendant argued that Dist. Ct. was required under Edwards, 554 U.S. 164, to also inquire as to whether defendant was competent to represent himself, Edwards did not apply, since defendant failed to assert that he was suffering from delusions or other debilitating infirmity. Ct. also noted that expert concluded that defendant was competent to represent himself if he chose to do so. Record also showed that defendant had constructively waived his right to counsel, where: (1) defendant had filed frivolous pro se motions and refused to work with his appointed counsel; (2) Dist. Ct. on several occasions told defendant that he was not entitled to different appointed counsel under circumstances of case, and that his only other option was to represent himself; (3) Dist. Ct. on several occasions cautioned defendant about perils of representing himself; (4) although Dist. Ct. did not conduct formal Faretta hearing, record otherwise established that defendant understood and accepted risks of self-representation; and (6) defendant articulated desire to represent himself when faced with alternative of having appointed counsel continue to represent him.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his Wisconsin attempted first-degree intentional homicide conviction and 25-year sentence, where defendant asserted that his trial counsel was ineffective for failing to advise him to take plea deal on lesser charge of reckless endangerment that had maximum 7.5-year sentence. State court had denied defendant’s similar claim on ground that trial counsel’s performance did not fall below constitutional minimum by pursuing outright acquittal on all charges based on belief that government witnesses had inconsistent versions of incident and might be viewed as unbelievable based on their criminal histories. Ct. of Appeals, although affirming instant denial based on applicable standard of review, was troubled by fact that trial counsel did not alter her approach during trial when it became apparent that government witness were presenting consistent testimonies that defendant was shooter during incident, and where defendant admitted to counsel during trial that he was shooter. However, applicable standard of review required deference to state court’s assessment of trial counsel’s performance, as there was possibility for fair-minded disagreement as to sufficiency of trial counsel’s performance.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his conviction on charges of felony child molestation, felony sexual misconduct with minor and felony incest, where defendant alleged that he entered into binding plea agreement with respect to said charges based on advice of his trial counsel, and that his trial counsel was ineffective because: (1) out of original indictment that contained 13 felony charges, six of said charges, including the felony sexual misconduct with minor charge to which he had pleaded guilty, were subject to statute of limitations defense; and (3) trial counsel did not inform him of availability of said defense, and he would not have pleaded guilty to instant offenses and would have gone to trial on remaining offenses had he known about the statute of limitations defense. Defendant failed to establish viable ineffective assistance of counsel claim, because contemporaneous evidence at time of plea deal made it unlikely that defendant would have foregone plea deal, even if he had known about statute of limitation defense for only portion of pending charges, where: (1) he faced potential aggregate sentence of 220 years on timely charges; (2) instant plea deal imposed concurrent sentences totaling 24 years based on most serious offense, which was not subject to statute of limitations defense; and (3) state court appropriately noted that it would be likely that defendant would have been subject to consecutive sentencing treatment had he gone to trial on timely charges given the severity and length of alleged abuse at issue in timely charges.

Record contained sufficient evidence to support jury’s guilty verdict on wire fraud charge, arising out of defendant’s scheme, where defendant and two White Sox employees obtained either discounted or free White Sox tickets and then defendant sold said tickets on StubHub. Instant scheme, which lasted for three years netted defendant $867,269 minus $74,650 that he paid White Sox for $5.00 discounted tickets (and paid nothing for free tickets) and $105,000 that he paid two White Sox employees. Instant indictment was not improperly duplicitous, even though it arguably alleged two schemes, i.e. to obtain and then sell said tickets, where both activities were necessary to succeed in goal of profiting at expense of White Sox. Also, record showed that wire transfers played role in scheme, where defendant used wire transfers to obtain status of ticket sales from StubHub. Fact that White Sox did not have monitoring system to keep track of free or discounted tickets did not make misrepresentations made by defendant to disguise his scheme immaterial. Dist. Ct. erred, though, in failing to amend written judgment to include $455,229.23 forfeiture order that it had been orally announced at sentencing hearing. Fact that Dist. Ct. had not entered preliminary forfeiture order pursuant to Rule 23.2(b)(1)(A) did not preclude Dist. Ct. from including forfeiture order in written judgment, where defendant had ample opportunity to litigate forfeiture issue, and Rule 36 otherwise allows Dist. Ct. to amend written judgment to correct instant clerical error at any time.

Defendant challenged his 15-year sentence on unlawful possession of firearm charge, where said sentence was based, in part, on finding that defendant qualified for enhanced treatment under Armed Career Criminal Act (ACCA). Defendant asserted that his Indiana conviction on charge of aiding and abetting arson did not qualify as crime of violence for ACCA purposes, because it criminalized more conduct than general arson offense outlined in ACCA. In certifying question to Indiana Supreme Court, Ct, of Appeals was unsure whether said offense required proof of fire or other burning, which would render said offense crime of violence, or whether said offense could be establish by proof of damage to dwelling without use of fire, which would render said offense not crime of violence because it would criminalize more conduct than generic arson offense.

Record contained sufficient evidence to support jury’s guilty verdict on charge of failing to disclose foreign bank account on defendant’s income tax returns and failing to file required report concerning said foreign bank account with Dept. of Treasury. While defendant claimed that evidence did not support finding beyond reasonable doubt that he acted willfully in filing false tax returns and failing to file report regarding his foreign bank account, record showed that: (1) during operative tax years, defendant had open bank account in China that had as much as $100,000 in account; (2) defendant made various transactions involving account during relevant time period; and (3) defendant answered “no,” when asked on his tax returns whether he had financial interest in foreign bank account. Jury was not required to believe defendant’s explanation that he answered “no,” because he believed that money in Chinese bank account was not actually his because it could only be used to cover his travel expenses.

Record contained sufficient evidence to support jury’s guilty verdict on conspiracy to commit wire fraud affecting financial institution and wire fraud affecting financial institution charges, arising out of scheme to obtain Small Business Administration (SBA) loan guarantees through use of false statements in support of applications for loans that did not meet SBA guidelines. Ct. rejected defendants’ contention that indictment was constructively amended when focus of trial was on defendants’ actions in defrauding SBA, instead of any financial institution, since conspiracy to commit fraud on financial institution can consist of defrauding SBA. Moreover, record showed that conspiracy to defraud SBA resulted in increased risk of loss to financial institutions, where said institutions would bear loss if SBA discovered that loans were ineligible for guarantees. Ct. also rejected defendants’ argument that record failed to support wire fraud convictions, because none of their fraudulent statements pertained to credit-worthiness or repayment ability of borrowers. Also, record contained evidence showing that two or more individuals were aware of scheme to defraud SBA and took steps to hide true nature of purpose of loans proceeds, which were for reasons outside SBA guidelines, such as payment of overdue payroll taxes and payment of another agency’s fine. Too, Dist. Ct. did not err in calculating loss attributable to instant scheme, when it included all loans that would have been ineligible for any SBA guarantees without defendants’ fraudulent misrepresentations. Also, Dist. Ct. did not abuse its discretion in imposing restitution order, after finding existence of proximate cause between defendants’ conduct and SBA losses without consideration of SBA’s ability to recoup losses from lenders.