Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

Articles Posted in Criminal Law
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The DEA was watching a suspected drug house near Indianapolis, Indiana. Detective Maples was monitoring traffic on Rockville Road. DEA agents reported that a white Audi had just departed from the suspected drug house and was heading towards Rockville Road. Maples observed the Audi pass him at approximately 40-45 miles per hour, following the car in front of it by less than a car length. He decided to conduct a traffic stop for the infraction of following too closely. During a pat-down search, Maples saw a vacuum-sealed plastic bag in Radford’s inner pocket that Maples believed contained heroin. Minutes after Radford was taken into custody, Maples learned that there was an outstanding warrant for Radford’s arrest based on charges for operating a vehicle after a lifetime suspension of his license. An inventory search of the Audi revealed a gun. The substance in the bag was fentanyl rather than heroin. Radford was charged with possession with intent to deliver a controlled substance, 21 U.S.C. 841(a)(1). Radford moved to suppress the evidence, arguing that he was driving under the speed limit, was operating his vehicle in a safe manner, and did not commit any traffic violations.The Seventh Circuit affirmed the denial of Radford’s motion. The court made appropriate findings in crediting Maples’ testimony over Radford’s with respect to both the traffic offense and Maples’ observations leading to the search. View "United States v. Radford" on Justia Law

Posted in: Criminal Law
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In 2004, six men robbed a marijuana dealer, Thomas, at gunpoint in his home. Two of the robbers shot Thomas, who died. One of those shooters also shot Landon, Thomas’s business partner. Landon survived. Reyes was convicted of Thomas’s murder, Landon’s attempted murder, and home invasion. The state’s evidence against Reyes included Landon’s identification of Reyes as the shooter after viewing a photo array. It took the police five attempts to extract that identification from Landon; several times, he seemed to confuse Reyes with another man who was not a suspect in the robbery. Reyes moved, unsuccessfully, to suppress the identification.After Reyes exhausted state-court review, he sought federal collateral relief, 28 U.S.C. 2254, arguing that the identification procedure was impermissibly suggestive and that Landon’s identification was too unreliable to pass constitutional muster. The Seventh Circuit affirmed the denial of his petition. While the identification procedure was unnecessarily suggestive, as noted by the state court, it did not taint the conviction. Error alone is not enough to entitle Reyes to relief. A section 2254 petitioner must also show prejudice. Reyes cannot because the jury that convicted him heard significant evidence of his guilt beyond the identification and had the opportunity to evaluate most of the evidence bearing on the reliability of the identification. View "Reyes v. Nurse" on Justia Law

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Famous was convicted in Wisconsin state court of four counts of first-degree sexual assault of a child and one count of exposing a child to harmful material and was sentenced to 168 years of confinement. In 2001, the Wisconsin Court of Appeals affirmed his convictions, and the Wisconsin Supreme Court denied relief. Famous did not seek certiorari in the U.S. Supreme Court. The one-year statute of limitations period under the Antiterrorism and Effective Death Penalty Act (AEDPA) began to run on February 25, 2002, the date on which the time to file a petition expired. Famous filed his federal habeas petition on August 17, 2010.The district court dismissed it as untimely, rejecting Famous’s estoppel arguments. The Seventh Circuit affirmed. Famous failed to set forth sufficient information to raise statutory estoppel to the statute of limitations defense; he failed to provide even the information reasonably available to him. “Given the laconic nature of his submission,” the district court did not abuse its discretion in denying Famous’s request to take further discovery on that issue. In rejecting the defense of equitable tolling, the court did not clearly err in concluding that, even excluding the period when his appellate attorney allegedly retained his file, Famous did not timely file his petition. A finding that Famous’s chronic mental illness did not impede a timely filing was supported by the record. View "Famous v. Fuchs" on Justia Law

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Farmer, a member of the Latin Kings street gang, brutally bludgeoned Lowry and Siegers to death with a hammer in 1999. In 2019, a federal jury convicted Farmer of conspiracy to participate in racketeering activity under the Racketeer Influenced and Corrupt Organizations Act (RICO) 18 U.S.C. 1962(d), and conspiracy to possess illegal narcotics with intent to distribute, 21 U.S.C. 846. The district court sentenced Farmer to life imprisonment.The Seventh Circuit affirmed. Although the precise date of Farmer’s membership is unclear, the government presented ample evidence from which a jury could conclude Farmer was a Latin King when he killed Lowry and Siegers in 1999 and that his membership motivated the killings. The government also offered sufficient evidence of other qualifying predicate crimes. View "United States v. Farmer" on Justia Law

Posted in: Criminal Law
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Lee‐Kendrick was charged with sexual assault of girls under the age of 16: his biological daughter; his girlfriend’s daughter, A.W.; and a friend. Lee‐Kendrick testified that the accusations arose only after he started taking away their cell phones and allowances. There was no physical evidence. The jury found him guilty. Lee‐ Kendrick unsuccessfully sought a new trial, arguing that his trial counsel provided ineffective assistance by not objecting to certain prejudicial cross‐examination.In post-conviction motions, Lee‐ Kendrick argued his postconviction counsel provided ineffective assistance by failing to raise his trial counsel’s ineffectiveness in not calling as a witness A.W.'s friend, Keeler. Lee‐Kendrick cited a memorandum from a Wisconsin State Public Defender's investigator, recounting an interview in which Keeler said that A.W. told Keeler of her plan to get Lee‐Kendrick in trouble. The state trial court did not find Lee‐Kendrick’s claims procedurally barred for having not been raised on direct appeal but applied the “Strickland” standard to reject Lee‐Kendrick’s arguments. The Wisconsin Court of Appeals affirmed, going beyond his failure to raise the argument on appeal and reasoning that the attorney’s decision was not prejudicial because Keeler had no direct knowledge of the sexual assaults; Keeler’s testimony would have been inconsistent with the defense theory.The Seventh Circuit affirmed the denial of habeas relief. His claim concerning failure to call Keeler was denied on an adequate and independent state‐law ground and is procedurally defaulted. That default is not excused by cause and prejudice. View "Lee-Kendrick v. Eckstein" on Justia Law

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In 2020, large quantities of methamphetamine and firearms were discovered at Olsem’s house. Olsem, a convicted felon, pled guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). The Initial PSR identified pending Wisconsin state charges against Olsem: a February 2020 arrest for domestic battery and abuse of Olsem’s then-girlfriend and a December 2020 arrest for strangulation, suffocation, and domestic battery of his then-girlfriend and another man. Probation specifically noted the district court’s “Setser” discretion to determine whether Olsem’s federal sentence would run consecutively to or concurrently with any Wisconsin state sentence. Although Olsem submitted objections to the Initial PSR, he did not express a position on that issue. A Revised PSR calculated Olsem’s Guidelines range as 78-97 months’ imprisonment. Olsem’s sentencing memorandum did not address the consecutive or concurrent issue.The district court analyzed the 18 U.S.C. 3553(a) factors and imposed a sentence of 84 months’ imprisonment, stating that “If the state court judge does not expressly impose concurrent state sentences, his term of imprisonment shall run consecutively.” Olsem did not address the district court’s Setser discretion or express a preference for consecutive or concurrent sentences. The Seventh Circuit affirmed. Setser does not obligate sentencing courts to exercise this discretion and the appropriate time for Olsem to raise his concerns was at sentencing. View "United States v. Olsem" on Justia Law

Posted in: Criminal Law
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In 1998, Campbell pled guilty in state court to escape and felony aggravated battery. He was released with his sentence discharged in 2001. In 2006 he was convicted for possessing a controlled substance with intent to deliver; in 2013 he was convicted for unlawful delivery of a controlled substance within 1,000 feet of church property. In 2017, Campbell pled guilty to four counts of distributing controlled substances, 21 U.S.C. 841(a)(1) and (b)(1)(C) after making several sales of crack cocaine and heroin to a confidential source. The probation officer filed four different PSRs; the first three found that Campbell was a career offender under Guidelines section 4B1.1 in part because of his 2006 and 2013 convictions. The court determined that certain uncharged drug sales beginning in 2016 were relevant conduct, which stretched the beginning of the offenses of conviction back far enough that Campbell’s 1998 conviction counted as a predicate offense.The Seventh Circuit affirmed his 120-month sentence. The district court properly calculated Campbell’s range under the Guidelines but also recognized the narrow margin by which he qualified as a career offender. It was appropriate for the court to rely primarily on its consideration of the statutory sentencing factors under 18 U.S.C. 3553(a) to decide on an appropriate sentence. View "United States v. Campbell" on Justia Law

Posted in: Criminal Law
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Greenpoint Tactical Income Fund and its affiliates and managers were the subjects of an FBI investigation into suspected fraud, particularly with respect to Greenpoint’s asset valuation practices. The investigation led to the issuance of a search warrant for plaintiffs’ properties and the seizure of some assets. Plaintiffs filed suit against Agent Pettigrew and Assistant United States Attorney Halverson, alleging violations of their Fourth Amendment rights by submitting a false and misleading affidavit in support of the search warrant. They sought damages. The district court dismissed the suit, concluding that plaintiffs were seeking to extend “Bivens” to a “new context” and that “special factors” counseled hesitation in doing so.The Seventh Circuit affirmed the dismissal on different grounds. Even assuming that Bivens can reach the Fourth Amendment violations alleged here, Halverson is entitled to absolute prosecutorial immunity and Agent Pettigrew is entitled to qualified immunity. There is no allegation that Halverson was interviewing witnesses himself, was actively involved in the investigation as it was unfolding, or personally vouched for the truth of the allegations in Pettigrew’s affidavit. A reasonable agent in Pettigrew’s position could believe the allegations amounted to probable cause. View "Greenpoint Tactical Income Fund LLC v. Pettigrew" on Justia Law

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Swank, a registered sex offender, logged onto a dating application under the username “lkng4younger.” After eight days of sexually explicit online chatting, the other user (an undercover FBI agent) stated he was 15. Swank drove from Iowa to meet with the user in Illinois. FBI agents arrested Swank, who admitted to exchanging sexually explicit images and messages with the user and crossing state lines with the intent of taking a 15-year-old male to Iowa for sex. The district court calculated a Guidelines range of 210-262 months’ imprisonment and found that a 210-month sentence was sufficient but not greater than necessary because of Swank’s risk to recidivate and the danger he presented. The judge stated: I do think that general deterrence is a factor … it is a little arbitrary, but it is the way that our system works is it’s tethered to the reality of the sentences and the ranges and everything like that. … a variance … could minimize the general deterrent impact.”The Seventh Circuit affirmed, rejecting Swank’s argument that the district court procedurally erred when it suggested the 18 U.S.C. 3553(a)(2)(B) factor of adequate deterrence was “tethered” to the Guidelines. When read as a whole, the transcript indicates that the district court followed the proper procedure and did not err in determining the appropriate sentence. View "United States v. Swank" on Justia Law

Posted in: Criminal Law
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Hernandez pled guilty to a RICO conspiracy charge, 18 U.S.C. 1962(d) stemming from his more than three decades of involvement with a violent gang, the Almighty Latin Kings Nation. Like many defendants during the COVID-19 pandemic, Hernandez underwent sentencing by video. He received 175 months’ imprisonment, slightly more than the 138-165 months recommended by the Sentencing Guidelines.The Seventh Circuit affirmed. The district court did not commit a nonwaivable error when it conducted Hernandez's sentencing by video without first making a statutorily-required finding that Hernandez’s sentencing could not be delayed without serious harm to the interests of justice under the CARES Act, Pub. L. 116-136, 15002(b)(2) (2020). The court noted that, given the judge's apparent sympathy for Hernandez, it is unlikely that he could have obtained a more favorable result by making the same sentencing arguments in person rather than remotely. The evidence supported the court's finding that Hernandez should be held accountable for conspiracy to commit murder. View "United States v. Hernandez" on Justia Law

Posted in: Criminal Law