Articles Posted in Criminal Law

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Lombardo, a long-time member of the Chicago Outfit, the lineal descendant of Al Capone’s gang, is serving a life sentence on his convictions for racketeering, murder, and obstruction of justice. After the Seventh Circuit affirmed his convictions and sentence on direct appeal, he retained a new attorney to argue that ineffective assistance of counsel. His new attorney misunderstood when the one-year limitations period for motions under 28 U.S.C. 2255 began running and filed Lombardo’s motion too late. The attorney represented that he miscalculated the deadline due to his mistaken belief that the statute of limitations began running only when the Supreme Court denied a petition for rehearing, not when it denied a petition for certiorari and that this error was “based on misinformation provided by a trusted paralegal.” The Seventh Circuit affirmed dismissal. An attorney’s miscalculation of a statute of limitations does not justify equitably tolling the limitations period for a motion under section 2255, even if the result is to bar a claim of ineffective assistance of trial counsel. View "Lombardo v. United States" on Justia Law

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In 2002, Barnett was charged with felony battery. At the time, Indiana courts established an “omnibus date” for substantive amendments to charges. The court set Barnett’s omnibus date so the last day for substantive amendment was December 8, 2002. In February 2003 the prosecutor added felony burglary, felony intimidation, and habitual offender charges. No one caught the error. Barnett was convicted and sentenced to 80 years’ imprisonment. Barnett’s appellate lawyer also overlooked this problem. Barnett later unsuccessfully pursued the issue in state post-conviction proceedings and in a petition under 28 U.S.C. 2254. After the district court denied his habeas petition, the Seventh Circuit granted another Indiana petitioner habeas relief on the same theory. The Seventh Circuit remanded Barnett’s case. The district court’s order on remand stated “[w]ithin 120 days of this Order, the State must either release the Petitioner or grant him leave to file a new direct appeal.” When the state had done nothing within 120 days, Barnett sought immediate release. Indiana responded that it had misunderstood the order as requiring its courts to grant a new appeal upon Barnett’s request. The state simultaneously filed a request for appeal on Barnett’s behalf and asked the court to extend the release date. The district court granted that request. The court denied a motion to amend because the Indiana Court of Appeals had granted leave for Barnett to file a new appeal. The Seventh Circuit affirmed; the district court was entitled to extend the state’s deadline. View "Barnett v. Neal" on Justia Law

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Lunn was convicted of five counts of bank fraud, 18 U.S.C. 1344, based on his operation of a Chicago investment advisory firm that advised mostly high-net-worth clients. The charges arose from Lunn’s conduct surrounding three extensions of credit by Leaders Bank, in which Lunn had invested: a line of credit he obtained for himself; a loan that Lunn arranged for former Chicago Bulls player Scottie Pippen; and a loan that Lunn arranged for Geras, a Lunn Partners client. Lunn provided false financial information with respect to his own loan; misled Pippen about the nature of the transaction and forged Pippen’s name; and forged Geras’s signature. The Seventh Circuit affirmed the convictions, rejecting Lunn’s claims that the court’s multiple intrusions into his testimony were so serious that he did not receive a fair trial and that the court erred in refusing to give a “good faith” instruction. The court instructed the jury that the government was required to prove, beyond a reasonable doubt, that Lunn “knowingly executed” a scheme to defraud “with the intent to defraud.” A good faith instruction was unnecessary. View "United States v. Lunn" on Justia Law

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Owens, an Illinois state prisoner, filed suit under 42 U.S.C. 1983, alleging that nearly two dozen prison employees deliberately ignored his medical needs and retaliated against him for filing grievances and lawsuits. He is primarily dissatisfied with the adequacy of the toothpaste, mail supplies, and laundry detergent he received at three different prisons over a six-year period. The district court narrowed the list of defendants at screening, 28 U.S.C. 1915A, and later granted summary judgment for the remaining defendants. The Seventh Circuit affirmed. “This lawsuit is not the first one in which Owens has tossed into a single complaint a mishmash of unrelated allegations against unrelated defendants.” Owens engaged in “nearly constant” litigation during 2009 and 2010. View "Owens v. Godinez" on Justia Law

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Betts‐Gaston and Ross formed a company that defrauded homeowners and mortgage lenders. They found homeowners facing foreclosure and convinced them to sign documents that deeded their homes to a trust; arranged for straw buyers to obtain mortgages to buy the homes; and produced loan applications that inflated the buyers’ incomes and misrepresented the purpose of the purchases. Once a sale was completed, the buyer deeded the property back to the trust, so that the defendants had both the mortgage proceeds and title to the properties. The homeowners initially still lived in the homes but at least two were eventually evicted. At trial, the government offered evidence of three such transactions. Betts‐Gaston and Ross were indicted for wire fraud in 2011. Ross pled guilty and agreed to cooperate. Betts‐Gaston was convicted and sentenced to a 57-month prison term. The Seventh Circuit affirmed, rejecting arguments that: the government concealed the terms of Ross’s plea agreement, in violation of its Brady obligations; the court’s limited questioning of prospective jurors violated the right to an impartial jury; evidence on the materiality of her misrepresentations was excluded, impairing the right to present a defense; insufficient evidence supported the conviction on Count II; and the judge was hostile in front of the jury, impairing the right to a fair trial. View "United States v. Betts-Gaston" on Justia Law

Posted in: Criminal Law

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A jury convicted Smith, a Putnam County police officer, of violating 18 U.S.C. 242, by subjecting two men to the intentional use of unreasonable and excessive force, and violating their civil rights. Smith’s fellow police officers had testified against him, describing two separate, unwarranted attacks on arrestees who were fully under control. Smith had bragged about his behavior and mocked those who objected. Smith had a prior conviction for misdemeanor battery of a three-year-old child and the child’s mother, who was then Smith’s wife. Smith had not taken responsibility for his actions, had “unaddressed anger control issues,” and had engaged in other misconduct that had not resulted in criminal charges. The district court sentenced Smith to 14 months’ imprisonment, less than half the low end of the guidelines range. The Seventh Circuit affirmed Smith’s conviction but vacated the sentence. On remand, the court again sentenced Smith to 14 months’ imprisonment and again failed to adequately explain or justify the below-guidelines sentence. The Seventh Circuit again vacated and remanded, citing the “thin rationale” for the sentence. The court’s brief mention of the nature and circumstances of the offense affords no basis to review its exercise of discretion. View "United States v. Smith" on Justia Law

Posted in: Criminal Law

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In 2011, Jackson was convicted and Kelly pleaded guilty to cocaine-related charges. The Seventh Circuit remanded Jackson's 360-month sentence for consideration under the Fair Sentencing Act (FSA) based on the Supreme Court’s 2012 "Dorsey" holding. With a new Guidelines range of 262-327 months, the court sentenced Jackson to 200 months’ imprisonment. Jackson then filed a pro se 28 U.S.C. 2255 petition, arguing that he received ineffective assistance of counsel. Jackson testified that his attorney, Ratcliffe, advised that the only way to preserve an FSA claim was to go to trial. Kelly testified that he told Jackson that he could take a plea agreement and preserve his right to argue that the FSA on appeal and that Jackson wanted to discuss this information with Ratcliffe. Ratcliffe testified that “Jackson never told [him] that he wanted to explore plea agreements.” A magistrate recommended granting Jackson’s petition, finding that Jackson established deficient performance and prejudice. The credibility assessment came out in Jackson’s favor. The district court nonetheless denied Jackson’s petition, stating that Jackson was unable to establish prejudice and rejecting the magistrate’s credibility determinations. The Seventh Circuit vacated. A district court may not reject a magistrate’s credibility findings, based on a witness’s live testimony, without first holding a de novo evidentiary hearing. View "Jackson v. United States" on Justia Law

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An individual attempted to purchase prescription drugs from Jennings in Hudson, Wisconsin. Jennings put a gun to his head; Jennings’ girlfriend stole the purchaser’s money from his truck. After the victim reported the robbery, police stopped Jennings’ car. Nearby, police found a loaded semi-automatic handgun that Jennings’ girlfriend had thrown from his vehicle shortly before he was stopped. Jennings pleaded guilty to possessing a firearm following a felony conviction, 18 U.S.C. 922(g)(1). Jennings’ criminal history included a Minnesota conviction for simple robbery and two Minnesota convictions for felony domestic assault. The pre-sentence report treated those convictions as crimes of violence under the Armed Career Criminal Act, 18 U.S.C. 924(e), and U.S.S.G. 4B1.4. Jennings argued that the offenses did not categorically involve the use or threatened use of violent physical force and did not qualify as violent felonies. The district court rejected the argument and stated that Jennings’ two convictions for making terroristic threats also constituted convictions for a violent crime. The district court elected to impose a below-Guidelines sentence of 180 months, the lowest sentence that the ACCA permitted him to impose. The Seventh Circuit, employing the categorical approach, affirmed the categorization of the prior convictions as crimes of violence. View "United States v. Jennings" on Justia Law

Posted in: Criminal Law

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Mejia pled guilty as a felon in possession of a firearm without a plea agreement. He did not admit any factual allegations beyond the essential elements of the 18 U.S.C. 922(g)(1) charge. He declined to discuss the offense with the probation officer. Without Mejia's version of the offense, the probation officer used police reports to put together an account of the bar fight, during which Mejia pulled out a knife. Four men were involved when shots were fired, striking a building and a vehicle. Mejia hid the gun but claimed he had not fired the shots. The judge rejected the probation officer’s recommendation to add four offense levels on the theory that Mejia had “used or possessed” a gun “in connection with another felony offense” or else had “possessed or transferred” the weapon with “knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense,” U.S.S.G. 2K2.1(b)(6)(B). Without the adjustment, Mejia’s guidelines range was 51-63 months in prison. The Seventh Circuit affirmed a sentence of 93 months. Given the facts about the incident that could be found with confidence, plus Mejia’s lengthy criminal history, the judge adequately explained that no matter who fired the shots, an above-guideline sentence was appropriate. View "United States v. Mejia" on Justia Law

Posted in: Criminal Law

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Reed operated companies that he claimed would make loans of $50 million to $1 billion to entrepreneurs. Reed charged advance fees of $10,000 to $50,000 to apply for these loans. Reed’s companies actually had no funds to lend. Reed and his co‐defendants took in $200,000 from six clients, but never closed a loan. Reed was indicted for wire fraud. On the fourth day of trial, Reed’s lawyer told the court that Reed wanted to enter a “blind” guilty plea. The judge placed Reed under oath, explained his rights, and discussed his understanding of the consequences of pleading guilty, before accepting the plea. Four months later, before sentencing, Reed moved to substitute attorneys. His new attorney moved to withdraw the plea, arguing that Reed’s attorney’s ineffective representation had coerced Reed to plead guilty. The court denied the motion. Reed sought a below‐guidelines sentence of probation, emphasizing that his wife (who has a disabling illness) and three children (one of whom is also disabled) depend on him for financial and other support. The Guidelines range was 57-71 months incarceration. The district judge sentenced Reed to 64 months in prison. The Seventh Circuit affirmed, finding Reed’s allegations of ineffective assistance vague. The district judge adequately considered Reed’s claims of family hardship. View "United States v. Reed" on Justia Law