Justia Criminal Law Opinion Summaries

Through Amusements Inc., owned by Szaflarski, a criminal enterprise distributed “video gambling devices” to bars and restaurants. The machines allow customers to deposit money in return for virtual credits and are legal for amusement only. The enterprise and the establishments, however, permitted customers to redeem credits for cash. The devices were modified to track money coming in and payouts, so that establishment owners and the enterprise could divide the profits. When a rival company encroached on Amusements Inc.’s turf, the enterprise placed a pipe bomb outside the rival’s headquarters. In addition to gambling, the enterprise committed home and jewelry‐store robberies, fenced stolen items through Goldberg Jewelers, owned by Polchan, and dealt in stolen cigarettes and electronics. Sarno was at the top of the enterprise’s hierarchy, followed by Polchan. Volpendesto was a perpetrator of robberies. The three were indicted for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1962(d). Sarno and Polchan were indicted for conducting an illegal gambling business, 18 U.S.C. 1955; and Polchan for additional counts, including use of an explosive device, conspiracy to do so, 18 U.S.C. 844(i) and (n), and conspiracy to obstruct justice, 18 U.S.C. 1512(k). Others indicted included Szaflarski and Volpendesto’s father, and two police officers. Most entered pleas. Volpendesto, Polchan, and Sarno were convicted. The Seventh Circuit affirmed, rejecting challenges to the sufficiency of the evidence, jury instructions, evidentiary rulings, and the sentences. View "United States v. Sarno" on Justia Law

Houston, age 44, was caught with more than 1,000 pornographic images of children on his computer; he pleaded guilty to possessing and transporting child pornography, 18 U.S.C. 2252A(a)(1), (a)(5)(B). The probation officer calculated a guidelines sentence of 360 months, the statutory maximum for the two counts. At the sentencing hearing, the government presented evidence that on four occasions Houston sexually abused a neighbor when she came over to play with his daughter. In a videotaped police interview the girl, then five years old, described how Houston touched his “private” to her “private,” made her touch his “private,” and then covered her stomach, crotch, and hands in a substance coming out of his “private” that she referred to as “wax.” She described Houston’s home and his appearance. She stated that these events happened when she was three or four years old. The government provided a chat log from his computer in which he asked someone to fulfill his “fantasy” by ejaculating on a picture of an unidentified young girl. A 12-year-old girl said that Houston exposed himself to her and a three-year-old boy reported that someone in Houston’s home licked his penis. The court imposed a sentence of 216 months. He appealed a five-level increase tied to the sexual abuse of a minor, U.S.S.G. 2G2.2(b)(5). The Seventh Circuit affirmed, rejecting Houston’s claim that the five-year-old girl’s statements were unreliable based on conflicting dates about when the girl informed her mother and different reasons for why the parents delayed in reporting the abuse. View "United States v. Houston" on Justia Law

Abair emigrated from Russia in 2005 and married an American citizen. Abair owned an apartment in Moscow. After her divorce, Abair sold the apartment and deposited the proceeds with Citibank Moscow. She signed a contract to buy an Indiana home for cash. Citibank refused to transfer funds because her local account was in her married name and the Moscow account used her birth name. Over two weeks Abair withdrew the daily maximum ($6400) from Citibank ATMs and deposited $6400 to $9800 at her local bank. A deposit on Tuesday, May 31 followed the Memorial Day weekend and was posted with one made on Saturday, pushing her “daily” deposit over the $10,000 trigger for reporting, 31 U.S.C. 5313(a). Abair was charged with structuring financial transactions to evade reporting. IRS agents testified that during her unrecorded interview, Abair, who is not fluent in English, revealed knowledge of the reporting rules. Abair testified that she was aware of the limit when she spoke with the agents, but had learned about it after making the deposits, when she asked why identification was required. She said her deposit amounts were based on how much cash would fit in her purse. Abair was convicted and agreed to forfeit the entire proceeds. The Seventh Circuit remanded, finding that the government lacked a good faith basis for believing that Abair lied on tax and financial aid forms and that the court erred (Rule 608(b)) by allowing the prosecutor to ask accusatory, prejudicial questions about them. On the record, Abair is at most a first offender, according to the court, which expressed “serious doubts” that forfeiture of $67,000 comports with the “principle of proportionality” under the Excessive Fines Clause. View "United States v. Abair" on Justia Law

In 2011, Johnson pled guilty to possessing crack cocaine with intent to distribute and possessing a gun in furtherance of a drug crime and was sentenced to 60 months’ imprisonment, departing from the 120-month mandatory minimum for repeat drug offenses (21 U.S.C. 841(b)(1)(B)) because Johnson cooperated with the government,18 U.S.C. 3553(e). Johnson later sought a sentence reduction under 18 U.S.C. 3582(c)(2), citing changes to the crack cocaine guidelines. The district court denied a reduction, noting that Johnson’s motion was an impermissible second or successive motion for reduction of sentence and that Johnson did not qualify for a reduction on the merits. The Seventh Circuit affirmed, reasoning that the sentence cannot be reduced under section 3582(c)(2) because the original sentence was based on a statutory minimum, not the subsequently-amended Sentencing Guideline. View "United States v. Johnson" on Justia Law

Convicted of distributing more than 50 grams of cocaine base, 21 U.S.C. 841(a)(1), White was sentenced to 360 months’ imprisonment. He filed an unsuccessful collateral attack under 28 U.S.C. 255. After the Sentencing Commission adopted Amendment 750, retroactively cutting the offense levels for crack-cocaine offenses, White sought sentence reduction under 18 U.S.C. 3582(c). The judge calculated the new range and reduced White’s sentence to 292 months. Nine months later White filed another 255 petition, arguing that the calculated range was wrong: the judge should not have treated him as a manager of other criminals, and should have deducted offense levels for acceptance of responsibility. The district judge dismissed the petition as barred by 28 U.S.C. 2244 and 2255(h), which forbid any “second or successive” petition that has not been authorized by the court of appeals under specified criteria and as untimely. The petition is not authorized under those criteria. The Seventh Circuit dismissed, rejecting an argument that the sentence reduction “wiped the slate clean.” There are substantial differences between resentencing and sentence reduction. White was not resentenced in 2012. The judge was forbidden to reexamine the effect that acceptance of responsibility and supervision of others have on White’s Guidelines range. View "White v. United States" on Justia Law

In 2009 Betty and Wayne submitted a tax return on behalf of a Betty Phillips Trust, signed by Betty, who was listed as the trustee, claiming income of $47,997. A second return on behalf of a Wayne Phillips trust, was signed by Wayne, but Betty was listed as trustee. This return reported income of $1,057,585. Both returns claimed that all income had gone to pay fiduciary fees, so that the trusts had no taxable income. The Wayne Trust claimed a refund of $352,528. The Betty Trust claimed $15,999. The IRS issued a check for $352,528. They endorsed the check and deposited it into a joint account. The returns were fraudulent. The IRS had no record of any taxes being paid by the trusts. In December, the IRS served summonses. That month, the couple withdrew $244,137 remaining from their refund proceeds using 13 different locations. They followed the same strategy the next year, but did not receive checks. A jury convicted Betty of conspiracy to defraud the government with respect to claims (18 U.S.C. 286), and of knowingly making a false claim to the government (18 U.S.C. 287.1). The district court sentenced her to 41 months’ imprisonment and ordered them to pay $352,528 in restitution. The Seventh Circuit affirmed, rejecting claims that the court improperly admitted evidence, and that the government constructively amended the indictment and violated Betty’s right against self‐incrimination.View "United States v. Phillips" on Justia Law

In 2008, Shields, an Illinois prisoner was lifting weights and ruptured the pectoralis tendon in his left shoulder. Although he received some medical attention, he did not receive the prompt surgery needed for effective treatment. Due to oversights and delays by those responsible for his medical care, too much time passed for surgery to do any good. He has serious and permanent impairment that could have been avoided. After his release from prison, Shields filed suit under 42 U.S.C. 1983, alleging that several defendants were deliberately indifferent to his serious medical needs and violated his rights under the Eighth Amendment to the Constitution. The district court granted summary judgment in favor of the defendants. The Seventh Circuit affirmed, reasoning that Shields was the victim not of any one person’s deliberate indifference, but of a system of medical care that diffused responsibility for his care to the point that no single individual was responsible for seeing that he timely received the care he needed. As a result, no one person can be held liable for any constitutional violation. Shields’ efforts to rely on state medical malpractice law against certain private defendants also failed. View "Shields v. IL Dep't of Corrs." on Justia Law

McMillan, a law student, posted an ad on craigslist entitled “sell me your teenage daughter” that solicited sexual acts for pay. Investigator Andrews of the Benton, Illinois, police department saw the ad while working undercover online and began to correspond with McMillan about a fictional teenager who was willing to engage in sex. Andrews and a state employee, playing the role of his daughter, met McMillan at a theater, where McMillan requested nude pictures. A search of his computer revealed other, similar correspondence. McMillan was charged with violating 18 U.S.C. 2422(b), which prohibits knowingly persuading or enticing a person under the age of 18 to engage in criminal sexual activity. He was convicted and sentenced to 132 months’ imprisonment, five years’ supervised release, and a $500 fine. The Seventh Circuit affirmed, rejecting claims that the evidence was insufficient to support his conviction and that the court erred in admitting certain evidence. The district court erred by failing to evaluate some of the evidence under Federal Rule of Evidence 403, but any error was harmless. View "United States v. McMillan" on Justia Law

Beard pleaded guilty in 2005 to possessing crack cocaine with intent to distribute, 21 U.S.C. 841(a)(1). Because the offense involved at least 50 grams, he was sentenced to the statutory minimum of 10 years. In 2008, after the Sentencing Commission retroactively lowered offense levels for most crack crimes, Beard requested a reduced sentence under U.S.S.G. 3582(c)(2). The district court denied relief because Beard had been sentenced to a statutorily mandated period that had not changed. In 2012 Beard again sought a reduced sentence, based on the Fair Sentencing Act, which increased the threshold amount of crack necessary to trigger section 841(b)(1)’s enhanced sentences, along with retroactive implementing amendments to the guidelines. The district court denied the motion, stating that FSA relief was foreclosed by Seventh Circuit precedent holding that sentence reduction under 3582(c)(2) is not a form of resentencing that allows a defendant to take advantage of post-sentencing changes in the law, such as the FSA; the retroactive guidelines amendments, although intended to benefit even defendants sentenced before enactment of the FSA, could not help a person like Beard because his sentence was dictated by the statutory minimum. The Seventh Circuit affirmed, first noting that the appeal was timely only as to Beard’s motion to reconsider. The district court lacked authority to order the relief sought. View "United States v. Beard" on Justia Law

Aljabri, born in Jordan, married a U.S. citizen in 1997 and became a lawful permanent resident in 2000. In 2003, he sought naturalization under 8 U.S.C. 1430. USCIS conducted an interview and then delayed for nine years. In 2007 Aljabri was convicted of wire fraud, money laundering, and structuring transactions not to trigger financial institution reporting requirements. He was sentenced to 84 months in prison. In 2008 DHS alleged that Aljabri was removable under 8 U.S.C. 1227(a)(2)(A)(iii), having been convicted of a crime causing victims a loss of more than $10,000. He was ordered removed in absentia. He filed suit, asking the district court either to naturalize him or declare him a U.S. citizen based on the still-pending 2003 application. The district court held that it lacked subject‐matter jurisdiction and dismissed in January, 2012. On May 3, 2012, USCIS denied the naturalization petition, stating that the final order of removal meant that he was no longer a lawful permanent resident and only permanent residents can be naturalized and that Aljabri could not demonstrate the good moral character necessary for naturalization. The Seventh Circuit reversed. The district court overlooked 8 U.S.C. 1447(b), which gives the court exclusive jurisdiction over the naturalization application until the matter is remanded to the agency. View "Aljabri v. Holder" on Justia Law