Justia Criminal Law Opinion Summaries

In 1997, Rodriguez was convicted of two counts of predatory criminal sexual assault of a child and sentenced to 60 years in prison. The Illinois State Police’s Division of Forensic Services had analyzed four semen stains on a blanket from the bed of the 11-year-old victim. Neither side presented the report at trial. The victim’s mother testified that Rodriquez had indicated he was “up all night” doing laundry; during closing arguments the prosecutor asked whether that might be “to get rid of evidence.” Objecting to the statement, in the presence of the jury, defense counsel stated “In fact, counsel knows that there was sperm on various items that was not presented.” The judge instructed the jury to consider only evidence admitted during trial. On direct appeal, Rodriguez argued, that he was denied effective assistance by the comment about evidence of sperm being found on “various items.” The Illinois Appellate Court denied relief, concluding that Rodriguez had not been prejudiced. The district court denied a subsequent federal habeas corpus petition. The Seventh Circuit affirmed, holding that the state court did not unreasonable the standard from Strickland v. Washington, in light of the other evidence and the judge’s curative instruction. View "Rodriguez v. Gossett" on Justia Law

Flournoy was convicted of conspiring to possess cocaine and of attempting to possess cocaine (21 U.S.C. 846). During closing arguments, the defense referred to the prosecution’s failure to call certain witnesses; the prosecutor responded that “the defense can call witnesses too, if they want.” The court rejected defense counsel’s objection that a defendant has an absolute right not to testify, but instructed the jury not to consider the defendant’s failure to testify. The Seventh Circuit affirmed Flournoy’s conviction, rejecting his argument that he was entitled to a new trial because of the prosecutor’s inappropriate comments during closing argument and because the government presented testimony from a cooperating witness that conflicted with that witness’s plea agreement. If it is clear to jurors that the government carries the burden of proof, the prosecutor may tell the jury that a defendant has the power to subpoena witnesses. There was no indication that the witness testified falsely or that the discrepancy between the testimony and the plea agreement was prejudicial. The court remanded Flournoy’s 204-month sentence, which imposed discretionary conditions of supervised release without considering the sentencing factors (18 U.S.C. 3583(d); 18 U.S.C. 3553(a)), and without stating the reasons for the specific conditions. View "United States v. Flournoy" on Justia Law

While conducting surveillance, based on information about a cocaine transaction, agents followed Bausley to a Chicago apartment building. Bausley parked on the street. Thompson came out wearing a backpack and entered Bausley’s car. Bausley drove around the block and again stopped outside the building. Thompson got out and reentered the building. Agents who saw Thompson communicated with agent Reynolds, who was present but could not see Thompson. Reynolds eventually approached Thompson, who had returned to the lobby from the ninth floor without the backpack. Thompson repeatedly denied living in the building but allowed Reynolds to use his keys. Reynolds used Thompson’s key to open unit 902. Inside the apartment, Reynolds again told Thompson that he was not under arrest and that he did not have to talk to the agents. Thompson signed a consent form, then stated that there was a gun in the TV stand and that there were drugs and cash elsewhere in the apartment. The agents recovered the gun, a kilogram of cocaine, and $10,000 in cash. Thompson was not arrested and agreed to cooperate. Days later, when Thompson stopped answering calls, he was arrested. Thompson was indicted for possession with intent to distribute 500 grams or more of cocaine, 21 U.S.C. 841(a)(1). The Seventh Circuit affirmed denial of Thompson’s motion to suppress; the agents did not commit any violations of Thompson’s Fourth Amendment rights that could have tainted his consent to search his apartment. View "United States v. Thompson" on Justia Law

In 2005, Jennifer’s mother found her 19-year-old daughter dead. Investigators found a chewed 100-microgram Duragesic fentanyl skin patch. The patch is a powerful opioid, not meant to be ingested. Jennifer did not have a prescription. Her friend, Krieger, had such a prescription for pain from severe spinal problems, and had given Jennifer a patch. Investigators also found a hypodermic needle, a small pipe with burnt residue on it, and two red capsules. Neither the capsules nor the pipe were taken into evidence and tested. The syringe was finally tested three years later. A medical examiner found many drugs in Jennifer's system, but concluded that she died from fentanyl toxicity. Krieger was charged with distribution of fentanyl with death resulting, 21 U.S.C. 841(a)(1); 841(b)(1)(c). After its medical witness fled the country, with legal problems of his own, the government dropped the “death resulting” charge, which it would have had to prove beyond a reasonable doubt. Krieger pleaded guilty to distribution. The prosecution then proposed that “death resulting” be considered as a sentencing factor. The district court found, by a preponderance of the evidence, that death had resulted from the distribution, and that it could only give a 20-year sentence. The Seventh Circuit affirmed. The Supreme Court later issued its decisions in “Alleyne” decision and Burrage v. United States, Krieger filed a petition under 28 U.S.C. 2255. The Seventh Circuit vacated her sentence. The district court can consider Jennifer’s death, using a preponderance of the evidence standard, as recommended under USSG 2D1.1; implementation of the mandatory minimum sentence, however, would require that a jury find, beyond a reasonable doubt, that the patch provided by Krieger was the but-for cause of Curry’s death. The time for such a determination has passed. View "Krieger v. United States" on Justia Law

Chicago officer Lewellen arrested drug dealer Rodriguez in 1996 and turned him into an informant. They developed a more lucrative arrangement. Rodriguez would collect information about drug dealers; during seemingly legitimate detentions, Lewellen would rob the dealers of drugs and money. Over several years, they brought in more participants. Robbery escalated into kidnapping or even murdering dealers for money and drugs. In 2009 the DEA filmed an attempted robbery of 600 kilograms of cocaine from a warehouse. Multiple defendants were charged with racketeering conspiracy to commit murders, kidnappings, robberies, drug trafficking, and obstruction of justice; conspiracy to possess with intent to distribute five or more kilograms of narcotics; and individual participation in those substantive offenses. Several arranged plea agreements, six were tried, and five were convicted. The Seventh Circuit affirmed the convictions, but remanded for resentencing in light of the Supreme Court’s 2013 “Alleyne” decision. The court rejected a challenge to dismissal of a juror who had nine convictions; upheld the trial court’s decision to reread the Silvern instruction instead of declaring a mistrial after the jury indicated that it was unsure if it could reach a verdict and failure to hold a hearing concerning a crying juror; rejected a claim that the government knowingly introduced false testimony; held that any error in allowing witnesses to look through the courtroom window to identify defendants was not prejudicial; and upheld denial of Lewellen’s motion to sever and various evidentiary rulings. View "United States v. Lewellen" on Justia Law

Morrison and Novak (defendants) sold “herbal incense” from their retail store, JC Moon, in Ashland, Wisconsin. The substances included XLR-11, UR-144, PB- 22, and 5F-PB-22, which then were not listed on the controlled substance schedules but were similar to scheduled controlled substances. Undercover law enforcement officers made 28 controlled purchases at JC Moon and learned that defendants hid a significant portion of their cash income from the IRS by “skimming” large bills from the cash registers. From 2010 to 2012, defendants under-reported JC Moon’s business income by $575,752 for a tax loss of $186,095. Defendants pleaded guilty to violation of the Controlled Substances Analogue Act, 21 U.S.C. 813 and tax fraud, Novak was sentenced to 96 months and Morrison to 48 months in prison. The Seventh Circuit affirmed, noting a Supreme Court holding that holding that the Analogue Act is not unconstitutionally vague due to its scienter requirement and rejecting challenges to the court’s acceptance of their pleas and to the sentences. The totality of the circumstances surrounding Novak’s and Morrison’s guilty pleas indicated that they entered into those pleas voluntarily and with sufficient understanding of the charges against them; there was sufficient factual basis for the pleas. View "United States v. Novak" on Justia Law

Defendant pleaded guilty to wire fraud, 18 U.S.C. 1343, for submitting fraudulent invoices to an Illinois town (Riverdale), which paid him $374,000. The district judge sentenced him to 60 months in prison, plus 36 months of supervised release with discretionary conditions of supervised release, most of which concern dealing with the probation department, restitution, and seeking work. The judge also imposed special conditions, requiring community service during unemployment; restricting credit charges; giving the probation officer financial information; notifying the court of material changes in defendant’s circumstances; and requiring defendant to ”contribute an amount thatʹs at least 10 percent of his net monthly income to the extent that other financial obligations have not been met. And he may not enter into any agreement to act as an informer or a special agent” without permission. The Seventh Circuit reversed, noting that the judge did not give reasons for the conditions or for the term of supervised release as required by 18 U.S.C. 3553(c), nor read the conditions to the defendant. The conditions imposed contained a substance abuse treatment condition that was not contained in the written notice prepared by the probation office. There was also a discrepancy between the oral and written judgments. View "United States v. Thomas" on Justia Law

Rogers and Hardy hid outside the entrance, then forced a teller into a bank at gunpoint as she was opening the door. Armour directed them by radio from the parking lot. Armour had recruited the two, supplied clothing, reserved their hotel rooms, and orchestrated the plan. When the teller could not open the safe, the two restrained her and stole her car to flee. All three men were arrested quickly; two firearms were found with them. Rogers and Hardy pled guilty. Both testified against Armour, who was convicted of conspiracy to commit armed bank robbery, 18 U.S.C. 371; aiding and abetting attempted armed bank robbery 18 U.S.C. 2113(a); and aiding and abetting using or carrying or brandishing a firearm in relation to a crime of violence 18 U.S.C. 924(c). His 324-month sentence included an 84-month consecutive sentence on the section 924(c) charge, the mandatory minimum for brandishing a firearm. The Seventh Circuit remanded the sentence for the section 924(c) conviction, which was imposed without a jury finding that Armour aided and abetted the “brandishing.” The court rejected an argument that the entire sentence was erroneously based on a finding that Armour was a career offender based on two prior Indiana convictions for robbery and an argument that the section 924(c) conviction must be reversed because the underlying predicate offense, attempted armed bank robbery, should not qualify as a “crime of violence.” View "United States v. Armour" on Justia Law

Curtis asked Lockwood to place a package in her brother’s truck and that it contained a bomb. Lockwood agreed. At the brother’s house, Lockwood failed to locate the truck and placed the bomb in the mailbox. He called the police and reported that the brother had a bomb and planned to blow up his office. The bomb-squad found nothing, but Curtis’s sister-in-law discovered the package in the mailbox later that day. It contained a pipe bomb, incapable of detonation, because it had no power source. After reviewing Curtis’s phone records, agents focused on Lockwood and charged him with possession of a destructive device. Lockwood claimed ignorance that the package contained a bomb. The jury convicted him. The Seventh Circuit vacated imposition the statutory maximum 120 months’ imprisonment (the Guidelines range was 33–41 months), finding the district court’s justifications insufficient. On remand, the district court again imposed a 120-month sentence. The Seventh Circuit affirmed. The court properly relied on testimony about Lockwood’s propensity for violence, even while he was on pretrial release, and his “troubling history,” which includes several domestic incidents wherein he threatened to kill women. He had burned down his girlfriend’s apartment, resulting in a conviction for aggravated arson. The court concluded that Lockwood should be incapacitated for a significant time to protect the public and those closest to him, calling Lockwood a “sociopath” who showed little remorse. View "United States v. Lockwood" on Justia Law

Wieckowicz, a confidential informant, alerted FBI agents that Oziemski solicited Wieckowicz’s help in planned robberies; Oziemski planned to travel from Poland to New York, and then to Chicago to meet Stanislawczyk, and then to New York to commit the robberies. Days later, Wieckowicz told agents that Stanislawczyk was in New York, but would return to Chicago and then travel to New York with Oziemski and Wrobel. Wieckowicz, Wrobel, and Stanislawczyk met at Stanislawczyk’s apartment. Oziemski participated via Skype in the recorded conversation, which concerned robbing a diamond merchant at his Brooklyn residence, using a rented van. Under FBI supervision, Wieckowicz rented a van, which the FBI equipped with a recording device. The four left for New York. They were arrested at a New Jersey hotel. Wrobel, Stanislawczyk, and Oziemski were charged with conspiring to obstruct, delay, and affect commerce by robbery of diamonds and other valuables, Hobbs Act, 18 U.S.C. 1951(a). The court allowed the government to introduce expert testimony that all diamonds are mined outside the U.S., and that diamond dealers frequently carry diamonds on their persons, to establish a nexus between the charged offense and interstate commerce and to rebut arguments that defendants’ statements regarding robbing a diamond merchant were mere fantasy. The Seventh Circuit affirmed defendants' convictions, rejecting arguments that there was insufficient evidence to establish the required nexus between the crime and interstate commerce and that the court improperly admitted the government’s expert testimony. View "United States v. Stanislawczyk" on Justia Law