Justia Criminal Law Opinion Summaries

Following armed robbery of a drug stash house, one defendant conspiracy to possess with intent to distribute mixtures containing in excess of five kilograms of cocaine (21 U.S.C. 846), and knowingly possessing and carrying firearms in furtherance of a drug trafficking crime (18 U.S.C. 924(c)(1)(A) and (c)(2)) and was sentenced to 200 months in prison and five years supervised release. The other entered a plea as to the firearms count and was sentenced to 120 months and supervised release. The Seventh Circuit affirmed. In determining the amount of drugs for which each defendant should be sentenced, the district court properly considered the amount of drugs "reasonably foreseeable" to the defendants.

In 1998 defendant was one of 14 persons charged in an indictment returned by a federal grand jury in Chicago with conspiracy to import and distribute heroin (21 U.S.C. 963). He was indicted in his own name and under supposed aliases, including "Alaji," but could not be found. The others were convicted. Defendant was found in England and, after protracted extradition proceedings failed, he apparently went to Nigeria. In 2009 he moved to dismiss the indictment on the ground that the English magistrate had found that he was not Alaji. The finding was based on a remarkable resemblance between defendant and his brother. The district judge denied the motion. The Seventh Circuit affirmed, noting the lack of finality in a denial of extradition and that the denial was not the equivalent of acquittal. Only findings that are necessary to a court's decision are entitled to preclusive effect.

Defendant, the master-mind of a mortgage fraud scheme, was convicted of wire fraud. She claimed that the 1,229-day delay between the date on which the last of her codefendants was arraigned and the start of her trial violated the Speedy Trial Act, 18 U.S.C. 3161 and the Sixth Amendment. The Seventh Circuit affirmed the district court's denial of a motion to dismiss. The Act's 70-day "clock" permits the court to exclude delays resulting from continuances granted on the basis of findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial and delays caused by absence or unavailability of an essential witness. The record indicated that the continuances and delays were justified and did not prejudice defendant.

Petitioner entered the U.S. from Mexico as a three-year-old and grew up in Los Angeles. In 2001 he was arrested for importation and sale of a significant amount of cocaine; while on bail, he was twice arrested for driving on a suspended or revoked license. In 2002, he consented to a search of his car that turned up cocaine. Before petitioner could complete his sentence on the importation and sale conviction, he was removed to Mexico in 2004. He returned to Los Angeles without authorization, primarily to take care of his daughters. Following another traffic stop, he was deported and again returned unlawfully. He was arrested for possession of cocaine in 2009. Though that charge was dismissed, petitioner admits that he used cocaine that day. He pled guilty to illegal reentry (8 U.S.C. 1326(a)). The district court rejected arguments for a lighter sentence than the guidelines range of 46-57 months and the Seventh Circuit affirmed. Based on petitioner's risk of recidivism, the court acted within its discretion in declining to consider his cultural assimilation and the absence of a "fast track" program that would have given him the opportunity to receive a lighter sentence in exchange for waiving certain rights.

Petitioner, convicted of causing great bodily harm by operating a motor vehicle while under the influence of cocaine (Wis. Stat. 940.25(1)(am) exhausted state appeals and filed an unsuccessful petition for writ of habeas corpus. The Seventh Circuit affirmed. The Wisconsin Court of Appeals reasonably concluded that the state did not violate petitioner's right to due process when it destroyed the vehicle, which possessed no apparent exculpatory value, in good faith.

A gun was discovered on defendant's person after he was pulled over on suspicion of a burglary attempt and ordered out of his vehicle for a protective patdown. Defendant had prior felony convictions, and pled guilty as a felon-in-possession, 18 U.S.C. 922(g)(1) but appealed denial of his motion to suppress. The Seventh Circuit affirmed. Defendant did not dispute that officers had reasonable suspicion that he may have been involved in criminal activity, such that an investigative detention under Terry was warranted. The facts known to officers suggested burglary and burglary is the type of offense that likely involves a weapon; the decision to order defendant out of the truck for purposes of a protective frisk was reasonable despite the absence of additional facts suggesting that he in particular might be armed.

Petitioner, age 60, a lawful permanent resident of the U.S. since 1999, pled guilty to aiding and abetting a conspiracy to violate 8 U.S.C. 1328, which prohibits importation of any alien for the purpose of prostitution, or for any other immoral purpose. His role involved distributing condoms to what he knew were brothels. The government commenced removal on the grounds that petitioner committed a crime involving moral turpitude under 8 U.S.C. 212(a)(2)(A)(i)(I), and for having procured persons for purpose of prostitution. He conceded removability for a crime involving moral turpitude, but denied removability for procuring persons for prostitution. He claimed eligibility for cancellation of removal under INA 240A(a), which requires that the noncitizen have lawful permanent residence for five years, continuous residence for seven years, and no conviction for what amounts to an aggravated felony. The Immigration Judge denied cancellation. The Board of Immigration Appeals affirmed. The Seventh Circuit vacated the order of removal and remanded. "Importation ... of any alien for the purpose of prostitution," 8 U.S.C. 1328, encompasses conduct broader than "an offense that relates to the owning, controlling, managing or supervising of a prostitution business," INA 101(a)(43)(K)(i), so petitioner's conviction is not properly categorized as an aggravated felony.

Petitioner entered the U.S. from Mexico in 1971, and became a lawful permanent resident in 1977. In 2003, she was indicted for mail fraud in connection with a staged accident insurance scheme; loss to the victims exceeded $10,000. On advice of counsel, she pled guilty and was sentenced to four yearsâ probation. An alien who is convicted of an aggravated felony is deportable, 8 U.S.C. 1227(a)(2)(A)(iii). The government initiated removal proceedings after petitioner unsuccessfully applied for citizenship. She sought to have her conviction overturned and filed a motion for a writ of coram nobis, claiming ineffective assistance of counsel because her attorney failed to inform her that a guilty plea could lead to removal. While the motion was pending, the Supreme Court decided Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The court concluded that Padilla did not announce a new rule and did apply to the case and vacated the conviction. The Seventh Circuit reversed. The Supreme Court has defined the concept of an old rule narrowly, limiting it to holdings so compelled by precedent that any contrary conclusion must be deemed unreasonable; Padilla announced a new rule. That numerous courts had failed to anticipate the holding, though not dispositive, is strong evidence that reasonable jurists could have debated the outcome.

Defendant, convicted of possession with intent to distribute crack cocaine (21 U.S.C. 841(a)(1) and (b)(1)(B)), was sentenced to 360 months' imprisonment. The Seventh Circuit affirmed, finding the evidence sufficient to support conviction and the sentence. Introduction of evidence of defendant's prior drug sales to an informant was probative of intent and did not prejudice defendant's substantial rights.

An informant alerted law enforcement that defendant planned to rob an armored car. The FBI opened an investigation and recorded meetings at which the informant and defendant spoke about the planned robbery. On the day of the planned robbery, defendant and the informant met near the proposed robbery location. Defendant provided stolen license plates. After defendant was convicted of attempted Hobbs Act robbery, and aiding and abetting the attempted robbery (18 U.S.C. 1951), the district court applied a five-level enhancement under U.S.S.G. 2B3.1(b)(2)(C), which applies "if a firearm was brandished or possessed." The Seventh Circuit affirmed, finding the evidence sufficient to support conviction. The district court acted within its discretion in declining to give a missing witness instruction and in allowing defendant's prior conviction and alleged criminal activity into evidence. The missing witness, the informant, was physically available and was not prevented by the government from testifying and defendant "opened the door" to information about past activities. Defendant is liable for the informant's possession of the weapon in preparation for the offense.