Justia Criminal Law Opinion Summaries

Enhancement for possession of a firearm capable of accepting a large-capacity magazine was appropriate, despite defendant’s claim that he only constructively possessed the gun at issue. After a police officer observed an apparent drug transaction, Cherry and Crews fled. They crashed their car, in which the officers found hundreds of individual capsules of heroin, numerous effects related to the sale of heroin, and a Glock .40 caliber pistol. They also found a 9 mm pistol with 16 rounds in the magazine and one round in the chamber, in a trash can where Crews had been observed throwing an object. Cherry pleaded guilty to four counts involving heroin distribution and gun possession, without a plea agreement. The district court applied U.S.S.G. 2K2.1(a)(3), which enhanced his base offense level for possession of a firearm capable of accepting a large-capacity magazine. He was sentenced to 106 months’ imprisonment. The Seventh Circuit affirmed, rejecting Cherry’s argument that he constructively possessed the firearm at issue as it was actually possessed by Crews. Cherry pled guilty to knowingly possessing the gun, making it relevant conduct under section 1B1.3(a)(1)(A). View "United States v. Cherry" on Justia Law

Unreliable corporate meeting minutes were properly excluded in tax fraud trial. Petrunak was the sole proprietor of Abyss, a fireworks business regulated by ATF. In 2001, ATF inspectors inspected Abyss and reported violations. An ALJ revoked Abyss’s explosives license. Abyss went out of business. Five years later, Petrunak mailed the inspectors IRS W-9 forms requesting identifying information and then sent them 1099s, alleging that Abyss had paid each of them $250,000. Because the inspector’s tax return did not include the fictional $250,000, the IRS audited her and informed her that she owed $101,114 in taxes; she spent significant time and energy unraveling the situation. Petrunak submitted those sham “payments” as business expenses; he reported a loss exceeding $500,000 in his personal taxes. Petrunak admitted to filing the forms and was charged with making and subscribing false and fraudulent IRS forms, 26 U.S.C. 7206(1). He sought to introduce corporate meeting minutes under the business records exception, claiming that the records would have demonstrated his state of mind in preparing the forms. The minutes included statements bemoaning that the IRS was not more helpful, and declarations that the ATF agents perjured themselves. The Seventh Circuit upheld exclusion of the records, noting that the records contained multiple instances of hearsay and had no indicia of reliability. View "United States v. Petrunak" on Justia Law

Order that juveniles submit to psychological evaluation before court ruling on motion to transfer for adult prosecution is not subject to immediate appellate review. Juveniles allegedly robbed a pharmacy. They were charged with Hobbs Act Robbery, 18 U.S.C. 1951(a), and possession of a firearm during that robbery, 18 U.S.C. 924(c). The government sought transfer for adult prosecution, 18 U.S.C. 5032 and moved to have the juveniles examined by government psychologists. The juveniles argued that the examinations—without counsel present—would violate their Fifth and Sixth Amendment rights. The magistrate granted the motion, ordering that the psychologists “not talk … about the specific allegations.” The district court affirmed. The Seventh Circuit dismissed an interlocutory appeal for lack of jurisdiction, without addressing the merits. The order did not fit within the “small class” of nonfinal orders that “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” The juvenile will not be irreparably harmed by failure to review his constitutional claims now; he can raise these same claims on an immediate appeal if the district court grants the motion to transfer. If the court denies that motion, the government will be prohibited from using at any subsequent prosecution any information obtained during the examination. View "United States v. Sealed Defendant Juvenile Male (4)" on Justia Law

The Seventh Circuit affirmed denial (without an evidentiary hearing) of a petition under 28 U.S.C. 2255, which had claimed that Spiller’s counsel was constitutionally ineffective during the plea-bargaining process after Spiller was charged with two counts of distributing a controlled substance 21 U.S.C. 841(a)(1), and one count of selling a firearm to a felon, 18 U.S.C. 922(d)(1). The government had filed a notice, under 21 U.S.C. 851, that it would seek an enhanced mandatory minimum sentence based on Spiller’s three prior drug felonies. The government had offered an agreement that, it conceded, did “not offer a whole lot beyond a blind plea.” Spiller executed a blind plea. With a Guidelines range of 262-327 months, Spiller was sentenced to 240 months; the Seventh Circuit affirmed. In rejecting the ineffective assistance claim, the Seventh Circuit noted that his attorney reviewed Spiller’s plea options, specifically inquired of the government whether there were differences, examined the government’s response, and suggested that Spiller plead blindly, reserving the right to challenge the government’s Guidelines calculation, a right he would have sacrificed under the government’s proposal. The record was sufficient to explain counsel’s decision as strategic, thereby eliminating the need for an evidentiary hearing. View "Spiller v. United States" on Justia Law

The Seventh Circuit affirmed denial of defendant’s motion to suppress evidence gathered pursuant to search warrants executed on his home. Defendant cared for young children at his Wisconsin home. After a parent reported to the Rock County Sheriff that she had found a video camera concealed in the bathroom of defendant’s house, officers discovered that he was on the sex‐offender registry and applied for a search warrant. The supporting affidavit listed several categories of items the detective believed could be found in connection with hidden‐camera recordings, indicating that defendant had violated Wis. Stat. 942.09, “Representations depicting nudity.” About a week after the initial search, officers requested a follow‐on search warrant for evidence of child pornography, supported by evidence gathered during the initial search. On the basis of evidence collected from those searches, defendant was charged with unlawfully creating child pornography (18 U.S.C. 2251(a)). After denial of a motion to suppress, defendant pleaded guilty, reserving his right to appeal that denial, and was sentenced to 25 years’ incarceration. The district court found, and the Seventh Circuit agreed, that the warrant was supported by probable cause, was not overly broad, and in any case was subject to the good‐faith exception. View "United States v. Wenzel" on Justia Law

In the 1990s, Terzakis met Berenice Ventrella, the trustee for a family trust with extensive real‐estate holdings. Terzakis managed and developed real estate and eventually managed some of Berenice’s property. In 2007, they created an LLC to hold one of Berenice’s properties. Berenice appointed her son Nick, who had Asperger syndrome, as the Ventrella Trust’s successor trustee. After Berenice's 2008 death, Terzakis opened an account for the “Estate of Berenice Ventrella,” took Nick to banks and had him transfer funds from Berenice’s accounts into this new account, transferred $4.2 million from the estate account to the LLC account, which he controlled, then transferred $3.9 million from the LLC account to his personal accounts. Nick was the only witness with personal knowledge of Terzakis’s statements about the transfers. Prosecutors interviewed Nick. The government informed the grand jury that Nick had cognitive problems; Nick did not testify. Days before the limitations period expired, the grand jury returned a five‐count indictment for transmitting stolen money, 18 U.S.C. 2314. Before trial, the government learned that Nick had been diagnosed with brain cancer, with a prognosis of six months. The government informed Terzakis of the diagnosis. The parties resumed plea negotiations. Terzakis rejected the government’s plea offer. The government dismissed the case, citing Nick’s unavailability. The Seventh Circuit affirmed denial of Terzakis’s motion to recover attorney fees under 18 U.S.C. 3006A. View "United States v. Terzakis" on Justia Law

After defendant was dismissed from an investment firm, he launched a finance company in Wilmette, Illinois, then used investors’ money for personal purposes, including paying his gambling debts. Defendant pleaded guilty to wire fraud, 18 U.S.C. 1343. The presentence investigation report stated that his guideline prison-sentence range was 70-87 months, based on an estimation that the loss to the victims slightly exceeded $1.8 million. The district judge sentenced the defendant to 75 months in prison and to pay restitution. The Seventh Circuit affirmed, rejecting an argument that the financial loss he caused was closer to $1 million, which would have put him in a lower guidelines range, and that a shorter term would give him more time to earn money to make restitution. The testimony of the elderly victim-witnesses was “harrowing and uncontradicted.” Gold provided no evidence to support his challenge to the government’s estimate of the victims’ losses. Even if Gold were given no prison sentence, he would be unable to provide substantial restitution to the victims of his fraud, given that he was 60 years old, had never graduated from college, lacked full-time employment, and had a negative net worth. View "United States v. Gold" on Justia Law

Blagojevich was convicted of 18 crimes committed while he was Governor of Illinois and sentenced to 168 months’ imprisonment. In 2015, the Seventh Circuit vacated five of the convictions but affirmed the others and remanded. After the Supreme Court denied certiorari, the prosecutor announced that the five vacated charges would not be retried. For the remaining 13 convictions, the district court again imposed a sentence of 168 months, after determining that the Sentencing Guidelines recommend a term of 360-months-to-life, and making reductions that produced a final range of 151-188 months. The Seventh Circuit affirmed, acknowledging that the sentence was high for nonviolent crimes by a first-time offender. The court rejected arguments that the judge should have considered evidence of Blagojevich’s “extraordinary” rehabilitation while in prison; that the judge should have revised the sentence in light of the dismissal of the five vacated counts; and that the judge failed to address an argument about sentencing disparities. View "United States v. Blagojevich" on Justia Law

The Madison Police Department established a focused deterrence program to increase surveillance of repeat violent offenders. Alston, one of 10 repeat violent offenders originally selected for the program, filed suit under 42 U.S.C. 1983, claiming that he was selected for the program because of his race, and arguing that his inclusion in the program deprived him of liberty without due process of law and that he was stigmatized and subjected to increased surveillance, penalties, and reporting requirements. Alston presented evidence that blacks accounted for only 4.5 percent of the Madison population but 37.6 percent of arrests and 86 percent of the program; four candidates associated with allegedly black gangs were selected while the one candidate associated with an allegedly white gang was not. The district court granted the defendants summary judgment. The Seventh Circuit affirmed. Alston failed to produce evidence that would allow a reasonable trier of fact to conclude that the program had a discriminatory effect or purpose or that Alston’s legal rights were altered by inclusion in the program. Alston’s statistics did not address whether black, repeat violent offenders were treated differently from white, repeat violent offenders and were not evidence of discriminatory effect. View "Alston v. City of Madison" on Justia Law

Nance shot and killed her husband, Timothy, in the shower. Four days later, Nance reported him missing. Fond du Lac detectives interviewed Timothy’s family, his new girlfriend, friends, and Nance’s sister, Ewell. They learned of the couple’s history of threats and violence. One witness had noticed that the shower curtain, liner, and hooks in the Nance bathroom had been replaced after Timothy disappeared. The detectives reviewed surveillance tapes from a local store, which showed Ewell and Nance buying new shower curtain liners and hooks the night Timothy went missing. Executing a search warrant at the Nance house, detectives seized “biological specimens,” a “projectile” from the bathtub pipes, and other evidence. Ewell refused to answer questions. Both sisters were arrested. A judge, relying on Ledger’s statement and affidavit, determined that probable cause existed to detain Ewell. She spent 12 days in custody before her release. Ewell filed suit under 42 U.S.C. 1983. While her appeal of the dismissal of that case was pending. Ewell was convicted in state court of hiding a corpse, harboring or aiding a felony, and resisting or obstructing an officer. The Seventh Circuit affirmed. For purposes of qualified immunity, it would not have been plain to a reasonable officer that arresting and detaining Ewell under the circumstances would have been unlawful under the Fourth Amendment. View "Ewell v. Toney" on Justia Law