Justia Criminal Law Opinion Summaries

After agreeing to cooperate with authorities investigating his drug-distribution conspiracy, Schwanke received a death threat from his coconspirator, fled to the Philippines, and stayed for four years. Later he pleaded guilty to conspiracy to possess with the intent to distribute marijuana, 21 U.S.C. 846, 841(a)(1), and was sentenced to 50 months’ imprisonment. Schwanke challenged his sentence, arguing that the district court improperly adjusted his offense level upward under U.S.S.G. 3C1.1 for obstruction of justice. The Seventh Circuit affirmed. The district court’s findings sufficiently reflected Schwanke’s willful obstruction of justice: Schwanke fled the jurisdiction before being indicted; knew during his years abroad that an investigation into the conspiracy was ongoing; recognized the possibility of federal charges given his initial cooperation with authorities in exchange for his release without formal charges; and hid in the Philippines for years without contacting authorities.

Based on two robberies, two weeks apart, with nearly identical “modus operandi,” Williams and Austin were convicted of armed bank robbery and use of a firearm in a crime of violence, 18 U.S.C. 2113(a), (d), 924(c)(1)(A). On remand they were convicted again and each was sentenced to 684 months in prison. The Seventh Circuit affirmed, rejecting challenges to the sufficiency of the evidence and to the adequacy of representation at trial. The court noted that “Austin did not make a wise choice in deciding to testify.”

Doyle was convicted and sentenced to life in prison for distributing heroin that resulted in the death of Ward. At trial, the government presented two expert witnesses. During direct examination of Dr. Burch, the St. Louis Deputy Chief Medical Examiner, the government began laying a foundation to admit into evidence the Post Mortem Report. Doyle’s counsel, with the intention to “help things along,” stated that he had no objection to any of the government’s medical reports coming in as evidence. The district court then admitted into evidence all of the government’s medical exhibits, including the Medical Examiner’s findings form, created by Dr. Dutra and containing notes concerning Ward’s cause of death. The form lists “Acute heroin and cocaine intoxication” as the cause of death, but the words “and cocaine intoxication” are crossed out. The Seventh Circuit affirmed, rejecting Doyle’s argument that admission of the form without the testimony of its author violated his Sixth Amendment right to confrontation. In light of the trial record as a whole, Doyle did not satisfy his burden to establish that the outcome of the trial would probably have been different.

In 2008, Bell protested Operation Iraqi Freedom in Chicago. President Bush was at a luncheon at a nearby club. After one protestor was arrested, handcuffed, and placed in a squadrol, Bell and two others, banner in hand, approached the squadrol, walking into the street. The police ordered the men to get back on the sidewalk several times. They refused and began chanting, “Hell no, we won’t go. Set him free.” Police arrested them for disorderly conduct. In particular, police arrested Bell pursuant an ordinance that criminalizes an individual’s behavior when he “knowingly . . . [f]ails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm.” A state court acquitted Bell and he sued under 42 U.S.C. 1983, alleging violation of First, Fourth, and Fourteenth Amendment rights, and malicious prosecution and indemnification. Bell appealed adverse rulings by the district court. The Seventh Circuit reversed, invalidating the ordinance in part, as inhibiting protected speech and not amenable to clear and uniform enforcement.

Robinson pleaded guilty in 2005 to possessing 50 grams or more of crack cocaine, 21 U.S.C. 841(a)(1). A recidivism enhancement raised the minimum prison term to 20 years, the term imposed by the district court. Three years later Robinson moved under 18 U.S.C. 3582(c)(2) to reduce his sentence based on amendments 706 and 713 to the guidelines, which retroactively reduced his base offense level from 32 to 28. The district court denied the motion because Robinson’s sentence was based on the statutory minimum, which remained unchanged. Three years later, Robinson moved the court to apply the Fair Sentencing Act of 2010, 124 Stat. 2372. If the Act applied, he would have faced a mandatory minimum penalty of 10 years. The district court denied the motion, reasoning that the Act did not apply to Robinson, whose crime and sentencing both took place before the Act. In 2012 Robinson again moved to reduce his sentence, based on the combined effects of amendments 748 and 750 to the guidelines and the Fair Sentencing Act, which, effective November 1, 2011, retroactively reduced from 28 to 26 the base offense level for Robinson’s conduct, U.S.S.G. 2D1.1(c)(7). The district court again denied the motion. The Seventh Circuit affirmed.

Turner was convicted on four counts of wire fraud and two counts of making false statements to the FBI stemming from a scheme to defraud the State of Illinois of salaries paid to but not earned by a team of janitors responsible for cleaning state office buildings. As was typical at the time in federal fraud prosecutions, the wire fraud counts were submitted to the jury on alternative theories that Turner aided and abetted a scheme to defraud the state of its money and also its right to honest services, 18 U.S.C. 1343, 1346. The Seventh Circuit affirmed in 2008. Two years later, the Supreme Court decided Skilling v. United States, 130 S. Ct. 2896 (2010), limiting the honest services fraud statute to schemes involving bribes or kickbacks. Turner moved to vacate the wire-fraud convictions based on Skilling error, and the court agreed. The Seventh Circuit reversed, reinstating the conviction. The Skilling error was harmless; the honest services alternative was unnecessary to Turner’s conviction. The evidence was coextensive on the two fraud theories; the jury could not have convicted Turner of honest-services fraud without also convicting him of pecuniary fraud.

Betker was shot twice during a late-night police raid on his home. The officer who shot him was part of a tactical unit executing a no-knock search warrant secured by Officer Gomez, who obtained the warrant after receiving information from Capol, the estranged sister of Betker’s wife, Sharon, regarding Sharon being a convicted felon allegedly in possession of a firearm. Capol now swears that most of the information that Gomez related in his affidavit to support the warrant’s issuance was not true. In Betker’s suit under 42 U.S.C. 1983, the district court denied Gomez’s motion for judgment based on qualified immunity. The Seventh Circuit affirmed, noting that Betker has produced sworn deposition testimony of Capol contradicting the probable cause affidavit. If believed, that testimony would establish that Gomez knowingly or with reckless disregard for the truth made false or misleading statements in the affidavit. Absent those false statements, probable cause for the no-knock warrant would not have existed.

After a lengthy federal investigation (Operation Dead Eye) into a drug organization headed by Hicks, 29 defendants were charged with drug-related offenses. Jones pleaded guilty to possession with intent to distribute 50 grams or more of crack cocaine, 21 U.S.C. 841(a)(1) and 18 U.S.C. 2 and was sentenced to 180 months’ imprisonment. Germany pleaded guilty to using a communication facility in furtherance of a drug offense, 21 U.S.C. 841(a)(1) and 843(b) and was sentenced to 48 months’ imprisonment to be served consecutively to the term of imprisonment imposed in state court. Watson pleaded guilty to conspiracy to distribute crack cocaine, 21 U.S.C. 846 and 18 U.S.C. 2 and knowingly and intentionally distributing crack cocaine, 21 U.S.C. 841(a) and 18 U.S.C. 2 and was sentenced to 180 months’ imprisonment and 5 years of supervised release. The Seventh Circuit affirmed the sentences imposed on Jones and Germany, but remanded for recalculation with respect to Watson.

Elusta sued tChicago and police officers for excessive force, false arrest, and intentional infliction of emotional distress. He first retained Cerda and De Leon, who conducted discovery and obtained a settlement offer of $100,000. Elusta rejected this offer, apparently because his retainer contained a 40% contingent fee provision. The district court permitted the attorneys to withdraw. Elusta retained Smith and Genson. A jury found in Elusta’s favor on two counts and awarded $40,000. Smith and Genson petitioned for attorney’s fees on behalf of Elusta pursuant to 42 U.S.C. 1988. Before the court could rule, Elusta retained new attorneys, Johnson and Gentleman, to litigate the fee issue. They sought direct payment of some of the fees to Elusta, rather than to Smith and Genson. Smith and Genson’s petition languished for nearly 16 months before Cerda and De Leon filed sought fees, asserting an attorney’s lien or a right to recover under quantum meruit. The court granted Smith and Genson’s request for $82,696.50 under section1988. Cerda and De Leon had not perfected an attorneys’ lien, but the court allowed recovery of $15,000 in quantum meruit. The court rejected Elusta’s motion to have 60% of both amounts paid to him directly. The Seventh Circuit affirmed.

Griffin, a high school freshman, was told to go home for dress code violations. Bell, a police officer, accompanied Griffin and twice removed Griffin’s hat. Bell claims that Griffin struck Bell in the face. A second security officer grabbed Griffin’s arm. Bell told Griffin that he was under arrest and got one handcuff on Griffin before Griffin began to struggle. The struggle continued for approximately 20-30 minutes before Bell attached the second handcuff. Griffin told a different story, claiming to have been beaten. Before trial, Bell moved to exclude a two-minute video of part of the incident, recorded by Brown, a friend of Griffin’s. Brown apparently could not be located at the time of trial. Bell contended that, without Brown as a witness, Griffin could not establish a proper foundation, and that the video was confusing and unfairly prejudicial because it showed only a small part of the incident and included gaps. The court excluded the video, excerpts from the video, and still photos created from the video, and prohibited reference to the video to explain a discrepancy in Griffin’s testimony. A jury rejected Griffin’s 42 U.S.C. claim. The Seventh Circuit affirmed.