Criminal Law

Record contained sufficient evidence to support defendant’s conviction on charge of attempting to sexually exploit child in violation of 18 USC section 2251(a) and (e). Instant indictment charged defendant with employing or using minor to engage in sexually explicit conduct for purposes of producing any visual depiction, although jury instruction included allegations with respect to producing any visual depiction or transmitting live visual depiction of such conduct. Record showed that defendant contacted police officer posing as step-father of 14-year-old female and offered to perform sex acts of defendant’s choosing on said girl for defendant’s viewing on Skype. Defendant thereafter drafted and sent to officer detailed script that identified sex acts he wanted officer to perform on child and also sent photo of himself ejaculating on another child and told officer to show said photograph to his step-daughter. Defendant’s conviction could stand, even though defendant never spoke directly to child. Record also contained sufficient evidence of his intent to commit charged offense when he drafted script and sent photo to girl, and same evidence was sufficient to establish that defendant took substantial step in causing child to engage in sexually explicit conduct. Too, defendant failed to establish impermissible constructive amendment to indictment claim arising out of instant instruction that contained uncharged allegation of transmitting visual depictions, where defendant failed to establish any prejudice arising out of tendering of instant instruction, since record supported defendant’s conviction under production prong of section 2251(a), and government could have obtained superseding indictment charging transmission of live visual depiction prong.

Dist. Ct. did not err in denying defendant’s motion to suppress inculpatory statements defendants made to police during interrogation of defendant that took place at hospital, even though defendant argued that he had not knowingly and intelligently waived his Miranda rights, under circumstances where he had been given Narcan before interrogation to counteract drug overdose that had occurred in squad car. Dist. Ct. could properly find that although defendant’s overdose may have had some impact on defendant’s cognitive capacity, it did not cause defendant to lose his ability to understand what was going on in his interactions with police. Moreover, defendant’s medical records indicated that he was mentally alert at least one hour prior to interrogation, and Dist. Ct. could properly credit officer’s testimony that defendant appeared to be alert, coherent and articulate at time of Miranda waiver. Moreover, audio recording, as well as defendant’s reference to Miranda warnings some forty minutes after they were given supported finding that defendant’s waiver was knowing and intelligent.

Dist. Ct. did not err in denying defendant’s request to present innocent possession defense at trial on felon in possession of firearm charge. In order to present such defense, defendant must show that: (1) firearm was attained innocently and held with no illicit purpose; and (2) possession of firearm was transitory in sense that defendant’s actions demonstrated that he had intent to turn weapon over to police immediately and through reasonable course of conduct. Defendant failed to satisfy second element, where defendant stated that: (1) he removed loaded firearm from third-party’s vehicle and left firearm on bottom shelf of Goodwill store that was full of people, including children; and (2) he hid from police in maintenance closet at said store and revealed location of firearm only after his arrest.

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant’s challenge to prosecutor’s use of preemptory challenge on black juror, where prosecutor explained that said challenge was used because black juror stated that he had brother who had drug-dealing conviction. While defendant contended that said explanation was pretext for race discrimination, where prosecutor did not excuse two white jurors who stated that relative had some sort of drug conviction, Dist. Ct. could properly find that neither juror was suitable comparative, since there was no evidence that convictions at issue with relati1ves of said jurors concerned drug dealing offenses. Also, Dist. Ct. did not commit plain error by failing to abide by all of dual-testimony procedures set forth in Jett, 908 F.3d 252, when instructing jurors on how to evaluate detective’s expert testimony regarding his interpretation of code words used by defendant and others curing telephone conversations, and his fact testimony regarding steps he took to investigate drug dealing efforts by defendant and others. Record showed that Dist. Ct. had adhered to most of Jett court’s directives, and prosecutor separated detective’s lay and expert testimonies for jury’s consideration. Moreover, record contained overwhelming evidence of defendant’s guilt.

Dist. Ct. did not err in denying defendant’s section 2241 habeas petition that challenged his enhanced sentenced under Armed Career Criminal Act, under circumstances where defendant’s prior section 2255 petition had previously been denied, and where defendant argued in his section 2241 petition that Seventh Circuit decision in Glispie, 978 F.3d 502, precluded use of one of his prior three convictions used to support his enhanced sentence. Ct. of Appeals, though, found that defendant could not use section 2241 petition to challenge his enhanced sentence, where: (1) section 2255(h) did not permit defendant to file successive 2255 petition, since defendant raised only new decision that pertained to new statutory interpretation; and (2) Supreme Ct., in Jones v. Hendrix, 2023 WL 4110233 (June 22, 2023) slip op. at 5, foreclosed possibility of defendant filing section 2241 petition via section 2255(e) under circumstances, where, as here, he could not file successive petition under section 2255(h).

Dist. Ct. did not err in denying defendant’s habeas petition that challenged prison’s revocation of all of his accrued 5,700 days of good-time credit following defendant’s felony battery conviction that arose out of defendant’s physical assault of prison guard while defendant was serving 55-year sentence for murder. Instant revocation occurred pursuant to prison’s application of its Executive Directive 17-09 from prison’s rules that mandated revocation of prisoner’s entire accrued good-time credits where underlying offense pertained to battery of prison staff. Defendant argued that mandatory nature of Executive Directive 1709 violated his procedural due process rights, and that said Directive was facially arbitrary. Ct. of Appeals, though, held that defendant had procedurally defaulted instant constitutional arguments by failing to raise them in Dist. Ct., and that defendant could not overcome said default, where Directive did not deprive defendant of procedural due process, and Directive was not otherwise arbitrary on its face or as applied to him. (Dissent filed.)

Dist. Ct. did not err in denying defendant’s habeas petition under section 2241 that challenged his two life sentences under 21 USC section 841(b)(1)(A), as well as his concurrent life sentence under Armed Career Criminal Act, 18 USC section 924(e), where defendant argued that Supreme Ct. decision in Mathis, 579 U.S. 500 and Seventh Circuit decision in Ruth, 966 F.3d 642 (that were entered after defendant’s initial section 2255 habeas petition had been denied) rendered three of defendant’s prior convictions as qualifying convictions for purposes of imposing instant enhanced sentencing treatment. While government conceded that said decisions concluded that defendant’s prior convictions at issue were not proper predicates for purposes of imposing enhanced sentences under either sections 841 or 924, Ct. of Appeals found that defendant could not use section 2241 habeas petition to challenge his sentences, where: (1) section 2255(h) did not permit defendant to file successive 2255 petition, since defendant raised only new decisions that pertained to new statutory interpretation; and (2) Supreme Ct., in Jones v. Hendrix, 2023 WL 4110233 (June 22, 2023) slip op. at 5, foreclosed possibility of defendant filing section 2241 petition via section 2255(e) under circumstances, where, as here, he could not file successive petition under section 2255(h).

Dist. Ct. lacked jurisdiction to consider defendant’s section 2241 habeas petition that challenged his 295-month sentence that was based in part on finding that defendant qualified as armed career criminal offender because he had three prior convictions that qualified as violent felonies. Record showed that after defendant filed unsuccessful section 2255 petition challenging his sentence in 2010, he filed instant section 2241 petition, since section 2255(h) precluded him from filing successive section 2255 habeas petition, where: (1) basis for section 2241 petition was fact that Supreme Court, in Borden, 141 S.Ct. 1817, filed recent opinion that would support his argument that one of his three felonies used to support his status as armed career criminal was not violent felony; and (2) section 2255(h) precluded him from filing successive petition, where basis for said petition concerned case law that pertained only to new statutory interpretation of armed career criminal statute. As such, Dist. Ct. lacked jurisdiction to consider instant section 2241 petition, where: (1) section 2255(h) did not permit defendant to file successive 2255 petition; and (2) Supreme Ct., in Jones v. Hendrix, 2023 WL 4110233 (June 22, 2023) slip op. at 5, foreclosed possibility of defendant filing section 2241 petition via section 2255(e) under circumstances where he could not file successive petition under section 2255(h).