Articles Posted in Criminal Law

by
Around 8:30 p.m., Milwaukee officers responded to a complaint by a store employee that a Mercury Grand Marquis drove around the store’s parking lot five times. Officer Newport believed this was consistent with preparation for a robbery. He knew that this store had been robbed recently, with firearms. The store closed at 9 p.m. and would soon be empty. Newport observed a Mercury Marquis about 30 feet from the store's entrance, parked next to a Chevrolet Malibu, driven by Green. Newport claims, and Green disputes, that Lindsey, the Marquis driver, stood next to the Malibu's front passenger door, leaned inside, and stood back up. Newport suspected that Lindsey had concealed a weapon. The officers told the men to put up their hands and directed Green to exit the vehicle. Newport claims, and Green disputes, that Green exited with his right arm kept tight to his body while his left swung freely and that after asking Green to raise his arms, Green raised only his left arm. Newport grabbed Green’s wrist but Green resisted. Newport proceeded to pat him down and discovered a handgun in Green’s waistband. Green sued under 42 U.S.C. 1983 and 1988. The court ruled that the investigatory stop violated a clearly established constitutional right, and denied qualified immunity. The Seventh Circuit reversed. Newport had a plausible reason to suspect that Green was armed and dangerous. View "Green v. Newport" on Justia Law

by
While on supervised release following his conviction for failing to register as a sex offender, White pleaded guilty to new charges of credit‐card fraud and theft. The court revoked White’s supervised release and ordered him re-imprisoned for 20 months, consecutive to the term for the new charges. White argued that the prosecutor and probation officer made inaccurate statements during the revocation hearing by: without evidence, challenging White’s version of the facts underlying his sex offense and his conviction for failing to register; misrepresenting that the court had modified White’s release conditions to allow him to live with his family, when actually the court had only permitted unsupervised visits with his grandchildren; alluding to nonexistent supervised release violations; stating that White had continuously failed to follow the law; and launching a “vicious personal attack.” White contends that the statements prompted the judge to impose a longer prison term. The Seventh CIrcuit affirmed, acknowledging the inappropriate statements, but characterizing them as not “misinformation of a constitutional magnitude.” The district court explained the need for a consecutive prison term, without further post‐incarceration supervision, to specifically address White’s poor adaption to supervision. That term, less than what the Sentencing Commission and the probation officer had recommended, was justified by the record. View "United States v. White" on Justia Law

Posted in: Criminal Law

by
Doornbos was leaving a Chicago train station when a plainclothes police officer confronted him, grabbed him, and with the help of other plainclothes officers, forced him to the ground. Doornbos was acquitted of resisting arrest. He sued the officers and the city for excessive force and malicious prosecution, claiming that Officer Williamson failed to identify himself as an officer and then used excessive force. Williamson claims that he properly identified himself and that Doornbos fled when Williamson attempted to stop and frisk him. The Seventh Circuit vacated a verdict in favor of the defendants. The court properly admitted evidence that Dornbos had marijuana in his pocket. Although the marijuana was unknown to the officers at the time, it arguably tended to corroborate their account of Doornbos’s behavior. The jury instructions on Terry stops, however, were inadequate. Over Doornbos’s objection, the court instructed the jury only on investigatory stops but not frisks. Williamson’s testimony indicated that he was starting a frisk when he first approached Doornbos and that he did not have reasonable suspicion that Doornbos was armed and dangerous. Doornbos was entitled to have the jury know that the attempted frisk, which produced the use of force, was unjustified. In addition, the jury asked whether plainclothes officers must identify themselves when conducting a stop. The judge said no. In all but the most unusual circumstances, where identification would itself make the situation more dangerous, plainclothes officers must identify themselves when initiating a stop. These errors were not harmless. View "Doornbos v. City of Chicago" on Justia Law

by
Willis and Simmons were convicted of conspiracy to distribute 100 grams or more of heroin and sentenced to 235 months’ and 108 months’ imprisonment, respectively. They appealed, claiming there was an impermissible variance from the indictment and that the jury pool failed to include a fair cross‐section of their community because only one of the 48 members of the venire was black. Simmons also challenged a jury instruction related to the amount of heroin involved in her offense and argued that the court erred in enhancing her sentencing offense level for possession of a gun during the commission of a drug offense. The Seventh Circuit affirmed. The defendants cannot show that the underrepresentation of blacks in the jury pool was due to a systematic exclusion of that group. The indictment adequately alleged conspiracy. The evidence that Simmons conspired with Willis to sell 100 grams or more of heroin was overwhelming. The evidence sufficiently established that Simmons constructively possessed the gun given that it was in the closet of the bedroom she shared with Willis and near drugs and drug paraphernalia. View "United States v. Simmons" on Justia Law

Posted in: Criminal Law

by
Stinson spent 23 years in jail for a murder he did not commit. No eyewitness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson’s dentition matched the teeth marks on the victim’s body. A jury found Stinson guilty. After DNA evidence helped exonerate Stinson, he filed this civil suit against the lead detective and the dentists alleging that they violated due process by fabricating the expert opinions and failing to disclose their agreement to fabricate. The district court denied the defendants’ motions for summary judgment seeking qualified immunity. The Seventh Circuit dismissed appeals for lack of jurisdiction. The court distinguished between appeals from denials of summary judgment qualified immunity based on evidentiary sufficiency and those “presenting more abstract issues of law.” The appeals failed to take the facts and reasonable inferences from the record in the light most favorable to Stinson and challenge the sufficiency of the evidence on questions of fact, precluding interlocutory review. The court concluded that it had jurisdiction to consider and affirmed the denial of absolute immunity. That denial was correct because Stinson’s claims focus on the defendants’ conduct while the murder was being investigated, not on their trial testimony or trial testimony preparation. View "Stinson v. Johnson" on Justia Law

by
Farmer was convicted of armed bank robbery, 18 U.S.C. 2113(a) and (d), and brandishing a firearm during a crime of violence, section 924(c)(1)(A)(ii). Farmer drove the getaway car and was not in the bank during the robbery. Her convictions were premised on an accomplice theory under 18 U.S.C. 2. In 2014 the Supreme Court held (Rosemond) that a section 924(c) conviction under an accomplice theory requires proof that the accomplice had “foreknowledge that his confederate [would] commit the offense with a firearm.” The jury at Farmer’s 2012 trial was not instructed on a foreknowledge requirement. In a motion under 28 U.S.C. 2255, after Rosemond was decided, Farmer argued that her trial counsel was constitutionally ineffective for failing to object to the section 924(c) instruction. The district judge denied relief because Farmer failed to establish that she was prejudiced by that failure to object. On appeal, she attempted to raise the Rosemond issue directly rather than through trial counsel’s ineffectiveness. The Seventh Circuit held that Farmer procedurally defaulted that claim and must establish cause and actual prejudice to excuse the default. She did not do so. The government presented plenty of evidence that Farmer had advance knowledge that a gun would be used, so the Rosemond error was not grave enough to cause actual prejudice. View "Farmer v. United States" on Justia Law

by
Illinois officers arrested Walker after making controlled buys of methamphetamine from him. Walker told Agent Hiland that Hansmeier, who lived in Missouri, was his drug source and dealt large quantities of methamphetamine, heroin, and marijuana. Hiland called Agent Murphy of the Northeast Missouri Narcotics Task Force. Murphy and another Task Force member were familiar with Hansmeier and interviewed Walker. Walker stated that he had bought large quantities of methamphetamine from Hansmeier and directed them to Hansmeier’s house. The agents ran background checks and learned that both men were on parole and that Hansmeier had several criminal convictions, including one related to drug distribution. Murphy drafted an affidavit in support of a no-knock search warrant for Hansmeier’s house, relying heavily on the information from Walker. Murphy also inaccurately reported that, during a previous investigation, Hansmeier had flushed drugs down the toilet when officers knocked and announced. A Missouri state-court judge signed the warrant on the morning after Walker's arrest. Officers found a loaded gun, marijuana, a large amount of cash, drug paraphernalia, and about 200 grams of a powdery substance. Hansmeier was charged with conspiracy to distribute methamphetamine, heroin, and marijuana, 21 U.S.C. 846 and 841(a)(1) and (b)(1)(A)–(b)(1)(D). The Seventh Circuit affirmed denial of a motion to suppress. There were many factors supporting Walker’s credibility. Although the affidavit included false information, nothing indicated that Murphy entertained serious doubts about the truth of the affidavit or attempted to mislead the judge. View "United States v. Hansmeier" on Justia Law

by
DiCosola started a business that produced compact discs in novelty shapes, for use as promotional items. The business morphed into a full‐service printing business, reaching about $1 million in gross annual sales and employing up to 10 people, including DiCosola’s immigrant father, who invested his retirement savings. In 2005, DiCosola started a side business for producing music, which sapped cash from the printing business. DiCosola’s 2007 loan application was rejected. He reapplied in 2008, providing fabricated tax returns that inflated his income by hundreds of thousands of dollars. Citibank issued DeCosola a loan of $273,500. DiCosola similarly used fabricated tax returns to obtain loans from Amcore, for $450,000 and $300,000. In 2009, after a few payments, DiCosola defaulted on the loans. In 2009, DiCosola falsified IRS forms to claim a refund of $5.5 million. In 2012, DiCosola was indicted for bank fraud, 18 U.S.C. 1344; making false statements to a bank, 18 U.S.C. 1014; wire fraud affecting a financial institution, 18 U.S.C. 1343; filing false statements against the United States, 18 U.S.C. 287. DiCosola was found guilty, sentenced to 30 months’ imprisonment, and ordered to pay restitution of $822,088.00. The Seventh Circuit affirmed, rejecting challenges relating to the testimony of DiCosola’s accountant. View "United States v. DiCosola" on Justia Law

by
ATF agents executed an arrest warrant at Coleman’s residence and observed what appeared to be heroin. After receiving his Miranda rights, Coleman stated that it was heroin for his personal use. The agents escorted Coleman to a vehicle. Coleman's wife, Charisse, said Coleman kept a gun and that Johnson and Coleman had been selling heroin for 20 years. She provided extensive details. In response to Coleman's unprompted statement, agents read Coleman his Miranda rights again. He signed a waiver and stated that he had guns and heroin inside the residence. Coleman gave consent to search. Agents nonetheless obtained a warrant and found drug paraphernalia, guns, and 168 grams of heroin. Coleman later identified a photo of Johnson and described their operation in detail. Both men had prior convictions for manufacturing and delivering a controlled substance. Chicago Police gave ATF information linking Johnson with a condominium. Agent Matuszczak's search warrant affidavit incorporated the affidavit submitted in support of the Coleman search. Agents executed the warrant at Johnson’s condo and seized 4.8 kilograms of heroin, $155,000 in cash, and items used to repackage and sell drugs. Johnson admitted owning the drugs and money and entered a conditional guilty plea under 21 U.S.C. 841(a)(1). The Seventh Circuit affirmed the denials of his motions to suppress the evidence; the known facts and circumstances supported a finding of probable cause. View "United States v. Johnson" on Justia Law

by
Chambers pleaded guilty to distributing child pornography, 18 U.S.C. 2252A(a)(2)(A), (a)(5)(B). His attorney argued for a downward variance based on Chambers’s diminished capacity, U.S.S.G. 5K2.13. He was sentenced to 168 months, the low end of the range. Chambers voluntarily dismissed his direct appeal and challenged his sentence under 28 U.S.C. 2255, claiming ineffective assistance because counsel promised him a five-year sentence and failed to present mitigating evidence. Trial counsel testified that he never told Chambers he would receive a five-year sentence and that he decided against having Chambers’s therapist testify because it might look like Chambers was not accepting responsibility. The judge denied Chambers’s motion, noting that the PSR thoroughly described and counsel made arguments concerning Chambers’s background and mental-health issues. Chambers’s counsel on appeal abandoned him. The Seventh Circuit declined to issue a certificate of appealability. Chambers sought relief under Rule 60(b), arguing that he had been deprived of his opportunity to be heard when he was blocked from filing a pro se memorandum in support of his request for a certificate of appealability. The district judge concluded that she lacked authority to direct the appeals court to allow Chambers to submit a memorandum; Rule 60(b) only allowed her to remedy district court errors. The Seventh Circuit affirmed, noting that the remedy for appellate counsel’s error is a motion to recall the mandate, which the court had already rejected. View "Chambers v. United States" on Justia Law