Articles Posted in Criminal Law

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Coleman was convicted for a 1994 armed robbery, home invasion, residential burglary, and aggravated sexual assault. Three witnesses linked Coleman to the crimes. The court sentenced Coleman to 60 years’ imprisonment. Fifteen years later, a group of men came forward claiming they were responsible for the crimes. The Illinois Supreme Court vacated Coleman’s convictions and remanded for retrial. Rather than retry the case, the prosecution dropped it. Coleman was released in 2013; a later judicial order certified his innocence. Coleman sued the City of Peoria and four police officers, claiming that they elicited a false statement from an alleged accomplice through coercive interrogation techniques, employed improper and unduly suggestive identification procedures, and suppressed impeachment evidence. After three years of civil litigation, the district court granted defendants summary judgment on Coleman’s federal claims and state law malicious prosecution claim. The Seventh Circuit affirmed. Coleman failed to present evidence supporting a reasonable inference that defendants knowingly fabricated false evidence, caused unreliable eyewitness identifications to taint his criminal trial, withheld material evidence, or arrested him without probable cause. A vacated criminal conviction does not automatically establish that an individual’s constitutional rights were violated, or that police officers and prosecutors are necessarily liable under 42 U.S.C. 1983. View "Coleman v. Peoria" on Justia Law

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Jensen was convicted of the 1998 murder of his wife, Julie. Two weeks before her death, Julie wrote a letter disclaiming any intention of suicide and stating that she feared her husband was going to kill her. She gave the letter to a neighbor in a sealed envelope to give to the police if anything happened to her. Julie also made similar statements to a police officer shortly before her death. The Wisconsin Court of Appeals rejected Jensen’s Confrontation Clause challenge to the admission of Julie’s letter. In a 28 U.S.C. 2254 habeas proceeding, the federal district judge issued a conditional writ requiring the state to either release Jensen or initiate proceedings to retry him. In 2015, the Seventh Circuit affirmed. Wisconsin timely initiated retrial proceedings. Before the retrial, the state judge concluded that the out-of-court statements were not testimonial, curing the constitutional defect in Jensen’s first trial. Reasoning that a second trial was unnecessary, the judge reinstated Jensen’s conviction. Jensen appealed; the Wisconsin Court of Appeals has not yet ruled. The federal district court denied Jensen’s motion to enforce the conditional writ. The Seventh Circuit affirmed, reasoning that its jurisdiction is limited to assessing compliance with the conditional writ. Wisconsin complied with the writ when it initiated proceedings for Jensen’s retrial. View "Jensen v. Pollard" on Justia Law

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Fort Wayne Officer Hartman and others responded to an ongoing armed robbery at a Dollar General store, knowing that there had been several armed robberies at area Dollar General stores: two men would enter the store, display handguns, restrain employees, wait for the registers to open, and depart after collecting cash, cigarettes, and employees’ cell phones. Hartman crouched 10-15 feet from the store’s entrance; shelving blocked his view. Other officers positioned themselves beside the entrance. Officers at the back of the store radioed that suspects started to try to escape out the back but then retreated into the store. Video recordings from patrol cars show Hartman approaching the entrance as two men appeared. Johnson ran out of the entrance. Officers shouted to the suspects to get down. Hartman started to run toward Johnson, but then turned to Gant standing in the doorway with his left arm extended, holding the door open. Hartman fired two shots, striking Gant in the abdomen. Hartman believed Gant was preparing to shoot. Gant actually had not been holding anything in his hand. Gant pleaded guilty to armed robbery and filed a 42 U.S.C. 1983 excessive force action. The court granted summary judgment of qualified immunity for all defendants except Hartman, finding that a reasonable juror could conclude that Gant was obeying Hartman’s commands or did not have the opportunity to obey. The Seventh Circuit dismissed an appeal for lack of jurisdiction. Hartman’s argument is inseparable from the disputed facts identified by the district court. View "Gant v. Hartman" on Justia Law

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Collins pleaded guilty to distributing cocaine and crack cocaine, 21 U.S.C. 841(a)(1). Because of a prior felony drug conviction, he faced a statutory minimum of ten years in prison, unless he qualified for the “safety valve,” 18 U.S.C. 3553(f)(5). On remand, the district court again determined that Collins did not qualify for the safety valve. The court focused on a statement in his proffer interview that he intended to use $40,000 cash found in his car at the time of his arrest, at least $15,000 of which were cocaine sales proceeds, to purchase a new car. Doubting the veracity of that claim, the court concluded that Collins had not established that he had “truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan,” 18 U.S.C. 3553(f)(5). The Seventh Circuit affirmed. Although Collins provided ample correct information about his offenses, the court weighed the record and concluded that Collins had not established his eligibility because his explanations about the cash were not credible. This conclusion was not clearly erroneous. It was a difficult decision on disputed facts. View "United States v. Collins" on Justia Law

Posted in: Criminal Law

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Milwaukee officers were patrolling an area known for drug trafficking, armed robberies, and gun violence. Around midnight, they saw Richmond walking toward them with his right hand in the “kangaroo” pocket on his T-shirt and saw “a significant bulge” in that pocket. After the officers passed Richmond in their marked squad, he changed direction, quickened his pace, crossed a lawn, and moved toward a front porch. Unknown to the officers, Richmond lived in the duplex. The officers parked, followed Richmond and, from 20-25 feet away, saw Richmond open the outer screen door, bend down, and place an object on the doorframe between the screen door and front door. They suspected Richmond hid a gun. Richmond closed the screen door and turned around. Richmond stated that he did not have a gun. Officers walked onto the porch, opened the screen door, and saw a handgun. Richmond confirmed he was a convicted felon, so they arrested and charged him under 18 U.S.C. 922(g)(1). The Seventh Circuit affirmed the denial of a motion to suppress. The officers knew specific, articulable facts which, together, fostered their reasonable suspicion of “criminal activity.” Police may search an area strictly limited to that necessary for the discovery of weapons if they have a reasonable and articulable suspicion that the investigation's subject may be able to gain access to a weapon to harm officers or others nearby. View "United States v. Richmond" on Justia Law

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Dr. Sheth, a cardiologist, admitted in a plea agreement that he engaged in a scheme to overbill government and private insurers by approximately $13 million, in violation of 18 U.S.C. 1347. The scheme resulted in a loss to Medicare of about $9 million in payments for services Sheth did not render between 2002 and 2007, and a loss of about $4 million to private healthcare insurers for the same conduct. After the government detected the fraud, in June 2007, it initiated an administrative proceeding and seized funds from four Harris Bank accounts that the government believed were the proceeds of Sheth’s fraud. In his plea, Sheth agreed to forfeit $13 million in assets; the government would apply the proceeds of the forfeited property to any restitution judgment resulting from his conviction. Sheth disputed the valuation of some of the property applied to the restitution judgment. The Seventh Circuit affirmed the district court’s decision as to the valuation of Seth’s real property but remanded for consideration of the application of $225,000 in interest that had accrued on the Harris accounts to the restitution judgment. View "United States v. Sheth" on Justia Law

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T.L., a 15-year old, told S.B. that she had problems at home and was into drugs. S.B. took T.L. to Cosby’s Hammond, Indiana apartment. T.L. told Cosby that she was a 15-year old runaway. Cosby gave T.L. drugs and alcohol and told her that she had to repay him by prostituting herself. Cosby took pictures of T.L. and posted them on the website Backpage to find individuals who would pay for sex. Cosby did not show T.L’s face because she had been reported as missing. T.L. thereafter had sex with five individuals in Cosby’s apartment. Cosby drove T.L. to a Lansing, Illinois motel, where T.L. had sex with many individuals. Hammond police eventually found T.L. and arrested Cosby, who was charged with knowingly transporting a minor in interstate commerce with the intent that she engage in prostitution, 18 U.S.C. 2423(a). The court denied Cosby's request for a sixth continuance after the case had been pending for almost two and a half years and rejected Cosby’s to suppress evidence seized from his cell phone pursuant to a state warrant. He argued that the police exceeded the warrant’s scope by extracting, downloading, and reviewing the phone’s contents. The Seventh Circuit affirmed his conviction, upholding the denial of his continuance and suppression motions and of a motion for a mistrial based on allegedly false testimony. The court rejected an argument concerning failure to take appropriate precautions for a government witness’s dual-capacity testimony. View "United States v. Cosby" on Justia Law

Posted in: Criminal Law

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When Pennewell’s incarceration began, he was blind in his left eye. Pennewell complained of pain and vision abnormalities in his right eye. An optometrist referred him to the University of Wisconsin Eye Clinic. After a transfer to another prison. Pennewell submitted health services requests, indicating that his right eye was deteriorating; he was transported to UW where he was diagnosed with a retinal detachment that required emergency surgery. After surgery Pennewell continued to experience vision problems and was diagnosed with a macular tear that required surgery. His surgery resulted in Pennewell being blind for several weeks. Pennewell was not assisted by prison staff in using the restroom or showering and had to get his own meals. Pennewell continued to experience serious problems with his right eye and filed several complaints. He was transferred again. His follow-up appointment with the UW was canceled and he was unable to see a doctor for several weeks. The doctor removed loose stitches that had been causing his pain. Pennewell never recovered his right eye vision and is legally blind. The district court held that based on his adequate pleadings he was competent to litigate his 42 U.S.C. 1983 Eighth Amendment case alone during the advanced pre-trial stages of the litigation. The Seventh Circuit reversed; the court failed to give Pennewell’s motion particularized consideration, The court remanded with instructions to recruit counsel. View "Pennewell v. Parish" on Justia Law

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In 1995, Sotelo was convicted of three counts each of mailing communications with the intent to extort money and mailing threatening communications, based on threatening letters he sent while imprisoned for rape and robbery. The court sentenced Sotelo using the 1994 Sentencing Guidelines. Before the career offender adjustment, Sotelo's sentencing range was 77–96 months’ imprisonment. With that adjustment, the range was 210–262 months. An individual qualified as a career offender under U.S.S.G. 4B1.1 if he had two prior qualifying convictions and the offense of conviction was a felony and a crime of violence. Under the 1994 Guidelines, “crime of violence” meant any conviction that “has as an element the use, attempted use, or threatened use of physical force against the person of another” (elements clause), or “burglary of a dwelling, arson, or extortion, involves use of explosives, (enumerated offenses) or otherwise involves conduct that presents a serious potential risk of physical injury to another” (residual clause). Sotelo was sentenced to the top of the career-offender range. On appeal, Sotelo did not challenge his career-offender sentence. He filed his 28 U.S.C. 2255 motion in 2016, within a year of the Supreme Court’s “Johnson” decision, invalidating the residual clause of the Armed Career Criminal Act, retroactively applicable to cases on collateral review. The Seventh Circuit affirmed the denial of relief. Soleto’s motion does not fit within the 28 U.S.C. 2255(f)(3) exception for motions filed within one year of the date on which the right asserted was initially recognized by the Supreme Court if that right was made retroactively applicable on collateral review. Johnson, which applies only to the residual clause, does not address Sotelo’s conviction under the elements clause. Sotelo's claim hinges on cases post-dating Sotelo’s conviction, none of which has been declared retroactively applicable on collateral review. View "Sotelo v. United States" on Justia Law

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Durham faced revocation of his supervised release. A magistrate found that Durham was “financially unable to retain counsel,” under 18 U.S.C. 3006A(b). Initially, Durham was represented by a court-appointed lawyer. Before the revocation hearing, that lawyer withdrew with court permission. At the hearing, Durham was represented by retained counsel, who was then allowed to withdraw. Durham sought pro se to proceed in forma pauperis (IFP) on appeal. His IFP status lapsed when appointed counsel withdrew. The court denied Durham’s motion, citing his incomplete financial affidavit. The Seventh Circuit appointed the Federal Defender’s Office for the limited purpose of re-filing a proper motion. The district court again denied IFP status, citing 28 U.S.C. 1915(a)(1); because Durham had $750 in his prison account he could not show that he was “unable to pay the costs of commencing his appeal.” ($505 filing fee.), and ruling that Durham’s appeal was frivolous. The Seventh Circuit reversed, granting leave to appeal IFP. Durham is not trying to bring a civil appeal, which would be governed by the general IFP statute, 28 U.S.C. 1915, but sought to proceed under the Criminal Justice Act, 18 U.S.C. 3006A, which asks only if the defendant is “financially unable” to obtain adequate representation. In determining the need for appointed counsel under the Act, the Seventh Circuit is not governed by a requirement of indigence but by financial inability to employ counsel. The Criminal Justice Act does not permit courts to appoint counsel only for defendants whose appeals the court deems not to be frivolous; Anders procedures are available, should counsel come to that conclusion. View "United States v. Durham" on Justia Law