Justia Criminal Law Opinion Summaries

The DEA received information about cocaine trafficking at a muffler shop. The agency identified Vargas as a suspect and used Rojo, a confidential informant, to pose as a drug dealer from Mexico, giving detailed instructions. During his arrest, Vargas claimed that a shoe box containing $45,000 cash was intended for purchase of a truck. He was convicted of attempting to possess, with intent to distribute, more than 500 grams of cocaine (21 U.S.C. 841(a)(1) and 846. The Seventh Circuit affirmed. Vargas and Rojo’s conversations contained countless coded references to cocaine. Vargas took a “substantial step” in his attempt to possess cocaine by appearing at a parking lot with $45,000 in cash. Rojo’s testimony that he had been told to get close to Vargas because of “possible cocaine trafficking” should not have been admitted, but the error was harmless in light of the overwhelming evidence of guilt. Exclusion of a portion of the videotaped arrest during which he blurted, “I was here buying a truck,” was appropriate under the hearsay rule. The jury charge adequately required a finding, beyond a reasonable doubt, that Vargas intended to possess cocaine and knowingly took a substantial step; Vargas’s requested “mere presence” instruction was irrelevant.

Defendant, a citizen of Colombia, illegally entered the U.S. in 1982. In 1985, he was convicted of drug offenses, 21 U.S.C. 846 and 841(a)(1), was sentenced to five years in prison; in 1987 he was deported to Colombia. About five years after his deportation, he reentered the U.S. and was arrested twice, but managed to avoid deportation. In 2010 he was arrested in Illinois for driving under the influence. Immigration and Customs Enforcement agents were informed of his illegal status. Defendant was indicted on one count of illegal reentry, 8 U.S.C. 1326(a) and 6 U.S.C. 202(4) and pleaded guilty pursuant to a plea agreement. The district court determined his criminal history category to be 3 and, after applying a 16-level enhancement (U.S.S.G. 2L1.2(b)(1)(A)), determined his offense level to be 21, resulting in a calculated Guidelines range of 46 to 57 months’ imprisonment. Neither the government nor defendant objected to this calculation. He was sentenced at the low-end of the Guidelines range to 46 months in prison, claiming that his 1985 conviction was stale and that the calculation overstated the seriousness of his current reentry offense. The Seventh Circuit affirmed.

Alexander, a criminal defense attorney, alleged that a local prosecutor, McKinney, conspired with FBI agents to manufacture false evidence and bring trumped-up charges of conspiracy to commit bribery against him. Alexander had frequently criticized McKinney. A jury acquitted Alexander of the charges, and he sued McKinney for violating his due process rights. The district court dismissed, finding McKinney entitled to qualified immunity because the complaint did not identify a deprivation of a cognizable constitutional right. The Seventh Circuit affirmed, stating that Alexander’s complaint was merely an attempt to recast an untimely false arrest claim into a due process claim. The Fourth Amendment, not the due process clause, is the proper basis for challenging the lawfulness of an arrest. The Supreme Court has made it clear that a substantive due process claim may not be maintained where a specific constitutional provision protects the right at issue.

Garvey was convicted of four counts of distributing methamphetamine. The evidence at trial included testimony from a crime lab analyst, Nied, who testified that four plastic bags recovered from controlled buys at Garvey’s apartment contained methamphetamine. Nied was not the analyst who actually conducted lab tests on the white substance found in the bags—that analyst had left to take another job, and was not called as a witness. Nied was a supervisor at the same lab and had peer reviewed the analyst’s work. Garvey did not object to Nied’s testimony at trial. The Seventh Circuit affirmed, rejecting Garvey’s argument under the Confrontation Clause of the Sixth Amendment. Garvey did not demonstrate that any alleged error affected his substantial rights.

McDowell, a confidential informant, continued to sell cocaine, unbeknownst to his handler” In an independent investigation, the DEA developed a cooperating source: “Jose,” a member of a Mexican cartel who supplied cocaine to dealers, including McDowell. Federal agents arranged stings using Jose. McDowell was arrested during a staged sale. He announced that he was an Chicago police informant. Because it was after hours, agents asked him whether he would waive prompt presentment before a magistrate judge (FED. R. CRIM. P. 5(a)). McDowell signed a waiver and spent the night in jail. The next morning he signed a Miranda waiver and confessed involvement in cocaine trafficking. He was convicted of conspiracy and attempted possession of cocaine with intent to distribute and appealed denial of a motion to suppress his confession under 18 U.S.C. 3501(c) and the McNabb-Mallory rule because of delay in presentment. He argued that the court should have ordered the government to produce Jose and that he was entitled to a jury instruction regarding the requirement of evidence corroborating his confession. The Seventh Circuit affirmed. McDowell knowingly waived his right to prompt presentment; the district court was within its discretion maintaining the confidentiality of the cooperating source and denying the requested instruction.

Mosley was convicted of first-degree murder and aggravated arson and was sentenced to consecutive prison terms of 60 years on the murder charge and 15 years on the arson charge. After exhausting post-conviction remedies in Illinois state courts, Mosley filed a habeas corpus petition alleging ineffective assistance of counsel at trial. The district court granted his petition and directed the State to release Mosley unless within 30 days it either filed an appeal or announced its intention to retry him. The Seventh Circuit vacated, first rejecting a challenge to its jurisdiction. The court agreed that, assuming the accuracy of the original trial record and the affidavits of two potential alibi witnesses whom Mosley’s defense lawyer did not call to testify, Mosley’s lawyer provided ineffective assistance. The state appellate court’s decision that Mosley was not denied effective assistance of counsel was contrary to and an unreasonable application of clearly established federal law. The district court, however, heard additional evidence that contradicted the affidavits, but did not make findings on that evidence. The court remanded for determination of whether, based on new evidence not available to the state appellate court, Mosley’s trial counsel was in fact constitutionally ineffective.

Toliver is serving a life sentence for the 1992 murder of Tina Rogers. His habeas corpus petition, 28 U.S.C. 2254, asserted that his trial counsel was constitutionally ineffective because counsel did not call two exculpatory witnesses, and that the prosecution failed to disclose an exculpatory document. On remand, the district court granted the petition on the ground that trial counsel was ineffective, but denied relief on the exculpatory-evidence claim. The Seventh Circuit affirmed. Trial counsel is deceased and Toliver’s testimony, which the district court accepted as true, confirmed that counsel did not call witnesses that Toliver desired because counsel thought the jury would disbelieve them based onr family relationship. The transcript from the 1992 pre-trial conference confirmed the difference of opinion between Toliver and his attorney about securing additional witnesses. Toliver’s counsel was busy preparing for another homicide trial.

Reibel sexually molested his girlfriend’s three-year-old daughter and took pornographic photos of her. He pleaded guilty to two counts of producing child pornography in violation of 18 U.S.C. 2251(a) and received concurrent prison sentences of 360 months, the bottom of the Guidelines range but also the statutory maximum. The Seventh Circuit affirmed, rejecting an argument that the sentence unreasonably punished him as severely as the worst child pornographers and was based on mere speculation about sex offenders and their victims rather than on evidence.

Saucedo’s tractor-trailer was stopped because its paper registration plate appeared to be expired. Trooper Miller confirmed that the plate had expired, advised Saucedo that he would conduct a safety inspection, and requested Saucedo’s driver’s license, logbook, and paperwork for the truck, trailer, and load. Saucedo produced his license and other paperwork; his trailer was empty. Miller ran Saucedo’s license and learned that it was invalid and that he had prior convictions for drug distribution and aggravated assault with a deadly weapon. Miller asked Saucedo whether he had any weapons or drugs. Saucedo volunteered that the trooper could “open it.” Miller asked Saucedo if he could search his truck and trailer; and Saucedo said, “yes.” Because Miller saw things that raised his suspicions, he contacted a canine unit for assistance. He escorted the passenger to an officer’s vehicle. In the cab he found what he thought was an alteration to a small alcove in the sleeper/bunk area behind the driver’s seat. He disassembled one screw, pulled back molding around the alcove, peered in, and found a hidden compartment in which he found 10 kilograms of cocaine. Sentenced to 240 months in prison, Saucedo appealed denial of his motion to suppress. The Seventh Circuit affirmed.

Hare pled guilty, during trial, to being part of a methamphetamine distribution conspiracy and was sentenced to 292 months in prison. He claims that his counsel had failed to tell him of a pre-trial plea offer involving significantly less prison time than he received in the end. Hare’s previous attempt to win relief from his conviction and sentence under 28 U.S.C. 2255 on other grounds was rejected. He sought permission to file a successive collateral attack on his sentence under 28 U.S.C. 2255(h), claiming ineffective assistance of counsel. The Seventh Circuit dismissed the application. Hare did not have new evidence of his innocence, and could not establish “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” His petition was not supported by Missouri v. Frye, 132 S. Ct. 1399 (2012), which involved a failure to communicate a plea offer for a lower sentence than the defendant actually received when he later pled guilty. The Frye Court merely applied the Sixth Amendment right to effective assistance of counsel according to the test previously articulated in 1984.