Justia Criminal Law Opinion Summaries

After being attacked in his home by alleged co-conspirators in a prescription narcotics conspiracy, defendant stated, in open court, that he would shoot his former associates if he ever encountered them again. His prior felony conviction made it illegal for him to possess firearms, but he enlisted the help of an acquaintance, a confidential informant, in obtaining untraceable guns. In an Illinois parking lot, he purchased guns manufactured outside the state and was arrested as a felon in possession of a firearm (18 U.S.C. 922(g)(1)). The district court rejected an argument that ATF had removed the guns from the stream of interstate commerce when it took the guns off the private market and added them to its prop collection. He entered a conditional plea and was sentenced to 56 months. The Seventh Circuit affirmed, rejecting an argument that federal agents should not be permitted to federalize local gun-possession offenses by offering suspects interstate prop guns rather than letting them buy local.

Defendant pleaded guilty to transporting a minor in interstate commerce for the purpose of prostitution, 18 U.S.C. 2423(a) and was sentenced to 210 months' imprisonment. Appeal was dismissed on the basis of waiver in the plea agreement. Defendant filed a collateral attack within a year, arguing that his attorney had a conflict of interest, because he formerly represented one of defendant's prostitutes in a different case, and furnished ineffective assistance of counsel because he did not obtain a formal waiver of the conflict. The district court denied the petition, concluding that the record did not supply any reason to think that counsel's work on the 2003 prostitution claim would have diminished his ability to represent defendant effectively. A subsequent motion under Fed. R. Civ. P. 60(b)(6) was accompanied by more factual detail, but was denied. The Seventh Circuit affirmed denial of the petition and vacated with respect to the 60(b) motion, instructing the district court to dismiss the motion as a successive collateral attack, barred by 28 U.S.C. 2244(b) even though the first ruling was still pending on appeal.

An officer followed defendant's car because of a tip that included the license plate number. He observed that the windows were tinted, and after stopping defendant for failure to signal a right turn, smelled marijuana and saw defendant try to conceal a bag. Defendant stated that he had a gun in the car and the officer's canine alerted to drugs. A search of his car yielded a loaded revolver, crack cocaine, marijuana, and a digital scale. He was convicted as a felon in possession of a firearm, possession of crack cocaine with intent to deliver, and possession of a firearm in furtherance of a drug transaction. The Seventh Circuit affirmed, finding that misstatement of the date on the indictment did not amount to constructive amendment. The court also rejected an argument that the officer lacked probable cause for the stop; a turn signal was required, even if the angle of the turn was less than 90 degrees.

After obtaining evidence of his involv3ment in an armed bank robbery, officers stopped and searched Martin's vehicle and discovered marijuana, cocaine, and a revolver. Martin was arrested and transported to the sheriff's department. An officer read Martin his Miranda rights. Martin acknowledged that he understood, agreed to speak with officers, and admitted he was a convicted felon but denied knowledge of the drugs and gun. An officer asked if he would provide a written statement. Martin responded, "I'd rather talk to an attorney first." The officer ended the interview and returned Martin to the lock-up. Other detectives arrived a few hours later, but were not informed that Martin requested to speak with an attorney. The detectives advised Martin of his Miranda rights and he again waived those rights and agreed to speak. He admitted that he loaned a gun to a friend, who returned it by placing it under the hood of the vehicle. The officers did not request a written statement. The district court denied a motion to suppress. The Seventh Circuit affirmed. Martin's invocation of his Fifth Amendment right to counsel was limited to written statements.

Officers stopped to investigate a gathering in front of a house. They saw defendant flee from the scene with a handgun in his waistband. After a chase, they arrested defendant and placed him in the back of a squad car. An officer read the Miranda rights; asked if he understood those rights, defendant bobbed his head and made a sighing sound. In response to questions, defendant indicated that he had a gun due to a "murder hit" put on his head, that he did not want to go back to jail and that he would like to strike a deal. At the station, defendant was again informed of his rights under Miranda and responded "Yeah" when asked if he understood and again when asked if he wanted to continue speaking. The Seventh Circuit affirmed conviction for illegal possession of a firearm, stating that defendant's attempts to negotiate a deal and his selective answering of questions are evidence that he understood his rights and voluntarily waived them

An officer obtained a warrant to search defendant's home with a supporting affidavit, based primarily on information provided by a confidential informant, who stated that he observed defendant with a firearm in the residence within the past 72 hours, that defendant lives at that address with family, and that the residence was shot at in the past two weeks due to an ongoing gang feud. The officer stated that he considered the informant reliable because he had provided information in the past six months that resulted in three arrests and that he was able to partially corroborate the informant’s statements. Execution of the warrant recovered two firearms. Defendant entered a conditional plea and appealed denial of a motion to suppress. The Seventh Circuit affirmed. Although the informant could have provided additional information regarding past interactions with defendant or regarding the model of firearm the defendant illegally possessed, the affidavit set forth sufficient facts to establish probable cause.

Defendant, an immigrant, cleaned houses. She formed a cleaning service in 1992. Defendant would deposit customers' checks in the business checking account, keep some money as a fee, and withdraw the remaining amount to pay individual cleaners. The bank informed her of the requirement (31 C.F.R. 103.22(b)(1)) that it document and report transactions involving withdrawals of cash greater than $10,000. After being informed of the requirement, defendant would often withdraw more than $10,000 over the course of two days, but less than 24 hours; she withdrew amounts over $9,000 and less than $10,000 on 244 occasions in about six years. She was convicted of 23 counts of structuring transactions to avoid bank reporting, 31 U.S.C. 5324(a)(3). The court gave an "ostrich" instruction, concerning defendant's knowledge. The jury returned a special verdict subjecting $279,500 to forfeiture; the court imposed a sentence of three years of probation as well as an additional judgment of $4,800. The Seventh Circuit affirmed, finding no constitutional violation in weighing the forfeiture against the severity of the crime. Any error in giving the ostrich instruction was harmless.

The former mayor and the head of the engineering department were convicted of conspiring to embezzle and embezzling government funds, based on use of government funds and government employees to renovate the mayor's house. The mayor claimed that he was unaware of the scheme. The district court gave the jury a conscious avoidance instruction. The mayor had an initial offense level of 10 under the Guidelines, but the court applied enhancements for obstruction of justice, leadership role, and abuse of a position of trust, for a total offense level of 18. With a criminal history level of one, the guidelines range was 27-33 months' imprisonment. The district court imposed a sentence of 60 months, a $60,000 fine, more than $14,000 in restitution, a $200 special assessment, and three years of supervised release. The Seventh Circuit affirmed. The district court was within its discretion in issuing an ostrich instruction, in applying sentencing enhancements, and in its upward departure from the guidelines.

Defendant was convicted of conspiracy to possess a controlled substance with intent to distribute, 21 U.S.C. 841 and 846, and 18 U.S.C. 2, and of conspiracy to import a controlled substance, 21 U.S.C. 952, 960, and 963, and 18 U.S.C. 2. The district court declined to reduce his offense level by two under the Sentencing Guidelines "safety valve" provision, 18 U.S.C. 3553(f) because defendant's proffer was unreliable. The Seventh Circuit affirmed, first rejecting claims based on the court's rejection of two of his proposed jury instructions. The court's determination that defendant had not been granted use immunity with respect to his statements was not clearly erroneous. The evidence did not establish that alternate jurors inappropriately deliberated with the petit jury.

Defendant and coconspirators stole clientele books from department stores and used personal information, including credit card numbers, to order merchandise, which was intercepted and sold or returned. She pleaded guilty to conspiracy to commit access device fraud, 18 U.S.C. 1029(b)(2), attempted possession of access devices, id. 1029(a)(3), and aggravated identity theft, id. 1028A(a)(1) (Count III). The district court calculated a four-level increase in her offense level because her crime had more than 50 victims, resulting in a guidelines range of 120-150 months. The court imposed a sentence of 120 months on Counts I and II (to run concurrently) and a consecutive 24-month sentence on Count III as required by 18 U.S.C. 1028A(b). The Seventh Circuit affirmed. Because the court sentenced defendant using the November 2009 guidelines, it included in the count of victims 40 stores and credit card companies that sustained actual loss as well as 65 victims whose credit cards were used, regardless of monetary loss. The court acted within its discretion in rejecting her argument that there was no evidence that cardholders were actually harmed or expended significant time or effort cancelling their credit cards and that the guidelines resulted in a sentence that was greater than necessary.