Articles Posted in Criminal Law

Colon used his Indianapolis furniture store and a mall property rental business as a front to hide his criminal operation--buying large quantities of cocaine and heroin from Arizona and reselling the drugs to Indiana dealers. Convicted of drug conspiracy, money laundering, and making false statements in a bankruptcy proceeding, Colon was sentenced to 30 years’ imprisonment. The Seventh Circuit affirmed, rejecting Colon’s challenge to the sufficiency of the evidence of money laundering. Colon did not separate the financial aspects of his drug dealing from the financial aspects of his legitimate businesses. A reasonable jury could have inferred from the differential between Colon’s mall income and drug proceeds, the scope of his drug operation, his comingling of proceeds, and the overwhelming evidence showing that the mall was merely a front to enable and conceal his drug trafficking, that Colon was laundering money and that each cash deposit included at least some drug proceeds. While the district court erred in calculating his advisory sentencing range by applying leadership enhancements under U.S.S.G. 3B1.1, because Colon was only a middleman, the error was harmless. The sentencing transcript, read as a whole, demonstrates that the court would have imposed the same sentence regardless of the enhancements. View "United States v. Colon" on Justia Law

Garcia was convicted of distributing a kilogram of cocaine to co-defendant Cisneros, 21 US.C. 841. The government offered no direct evidence that Garcia possessed or controlled cocaine, drug paraphernalia, large quantities of cash, or other unexplained wealth. There was no admission of drug trafficking by Garcia, nor any testimony from witnesses that Garcia distributed cocaine. Instead, the government secured this verdict based upon a federal agent’s opinion testimony purporting to interpret several cryptic intercepted phone calls between Garcia and Cisneros, a known drug dealer. In those calls, the defendants talked about "work" and a "girl" in a bar, and made statements like “the tix have already walked more that, that way.” The Seventh Circuit reversed, stating that: This case illustrates the role trial judges have in guarding the requirement of proof beyond a reasonable doubt in criminal cases. While the government’s circumstantial evidence here might have supported a search warrant or perhaps a wiretap on Garcia’s telephone, it simply was not sufficient to support a verdict of guilty beyond a reasonable doubt for distributing cocaine. View "United States v. Garcia" on Justia Law

Wanjiku pled guilty to transportation of child pornography, 18 U.S.C. 2252A, retaining his right to appeal the denial of his motion to suppress photographs and videos recovered from his cell phone, laptop, and external hard drive during a warrantless border search at O’Hare International Airport. Wanjiku was caught up in a law enforcement investigation targeting men with prior criminal histories, traveling alone, and returning from countries known for “sex tourism” and sex trafficking. Wanjiku met the criteria and was chosen for a search before his plane landed; he was evasive and nervous during primary questioning. While searching his luggage, agents found syringes, condoms, medication for treating low testosterone, and oxycodone. The Seventh Circuit affirmed his conviction. The agents acted in good faith when they searched the devices with reasonable suspicion to believe that a crime was being committed, at a time when no court had ever required more than reasonable suspicion for any search at the border. That reasonable suspicion is measured at the time of the search. Although the Supreme Court has recently granted heightened protection to cell phone data, its holdings have not addressed searches at the border where the government’s interests are at their zenith nor have they addressed data stored on other electronic devices. View "United States v. Wanjiku" on Justia Law

Kanter pleaded guilty to mail fraud, 18 U.S.C. 1341, based on his submission of bills to Medicare for non-compliant therapeutic shoes and shoe inserts. Due to his felony conviction, he is prohibited from possessing a firearm under both federal and Wisconsin law, 18 U.S.C. 922(g)(1) and Wis. Stat. 941.29(1m). He challenged those felon dispossession statutes under the Second Amendment, as applied to nonviolent offenders. The Seventh Circuit affirmed judgment upholding the laws. Even if felons are entitled to Second Amendment protection, so that Kanter could bring an as-applied challenge, the government met its burden of establishing that the felon dispossession statutes are substantially related to an important government interest in preventing gun violence. Congress and the Wisconsin legislature are entitled to categorically disqualify all felons—even nonviolent felons like Kanter—because both have found that such individuals are more likely to abuse firearms. The “bright line categorical approach … allows for uniform application and ease of administration.” View "Kanter v. Barr" on Justia Law

Walker was charged with possessing a firearm as a convicted felon. During his detention awaiting trial, the government discovered that Walker and his associates had bribed witnesses to testify falsely on his behalf at his upcoming trial. The grand jury returned a superseding indictment, adding one count charging Walker with conspiring to obstruct justice. He pleaded guilty to both counts of the superseding indictment. The district court imposed sentences of 80 months’ imprisonment for each count, to be served concurrently, plus three years of supervised release. The district court recommended to the Bureau of Prisons (BOP) that Walker should not receive credit for time served before the date the superseding indictment was filed, because of his conduct leading to the addition of the obstruction of justice charge. The Seventh Circuit affirmed, rejecting arguments that the district court improperly left to the BOP the calculation of credit for his time served before trial and that he should receive credit for all the time he spent in custody between his arrest and the superseding indictment. Congress has committed the responsibility for the calculation of credit for pretrial confinement to the BOP; the court has the discretion to make a recommendation as to whether pretrial credit is appropriate. View "United States v. Walker" on Justia Law

Briggins pleaded guilty in 2017 to committing multiple bank robberies. In 1999, he had been convicted of 10 bank robberies and sentenced to 84 months’ imprisonment. The number of criminal history points to be added for the 1999 robberies depended on whether that term reflected one sentence or multiple concurrent sentences. The PSR concluded that Briggins received 10 concurrent sentences but recognized that Briggins’s criminal history points needed to account for the reality that he was charged with all 10 robberies in the same indictment, pleaded guilty in the same proceeding, and faced sentencing on the same day and recommended that Briggins receive six criminal history points: three from USSG 4A1.1(a), which requires sentencing courts to “[a]dd 3 points for each prior sentence of imprisonment exceeding one year and one month” and three points from 4A1.1(e), which applies where a defendant is convicted of multiple offenses charged in the same indictment or receives multiple sentences on the same day and limits the maximum number of additional points to three. Applying 4A1.1(e) meant that only three additional points were allowed for Briggins’s nine robberies not encompassed by 4A1.1(a). The resulting advisory guidelines range was 77-96 months’ imprisonment. The Seventh Circuit affirmed his sentence of 96 months. View "United States v. Briggins" on Justia Law

Salgado conspired with Lorenzo (his father) and others to distribute heroin, using a Bensenville, Illinois stash house. Lorenzo, who lived in Mexico, was the leader. Salgado was arrested in 2016, indicted under 21 U.S.C. 841(a)(1), 846, and pleaded guilty to conspiracy to possess with intent to distribute heroin. The PSR recommended an aggravating role enhancement under USSG 3B1.1(b), reasoning that Salgado directed and controlled” the others and was the Chicago‐based leader of the conspiracy. Salgado objected, claiming he had “no decision making authority, acted solely at the direction of [his father] … did not arrange the importation ... did not set any of the price or quantity terms” and that the government had not proven otherwise by a preponderance of the evidence. The court applied the enhancement, stating that Salgado’s “role as the supervisor is clear from the materials that are not disputed.” The court calculated the Guidelines range as 210-262 months, discussed the section 3553 factors in detail, and stated that “the sentence ... would be the same even if the guidelines were a little bit different … even if I made a mistake in the calculation with respect to the aggravating role, the guideline sentence is going to not control the sentence here. What’s going to control is the 3553 factors. The Seventh Circuit affirmed the 192-month sentence; “whether or not the enhancement should have applied, the district court’s detailed explanation makes a remand pointless." View "United States v. Salgado" on Justia Law

Galloway pleaded guilty to possessing ammunition as a felon. Galloway’s guideline range would have been 130-162 months in prison if it were not capped by a 120-month statutory maximum. The government asked the court to give Galloway the full 120 months. Galloway’s attorney told the court he had determined, after reviewing the Sentencing Guidelines and precedent, that “there was no way to make an objection,” and argued generally for a downward departure. Galloway appealed his 120-month sentence, raising an unpreserved argument that the district court used an incorrect guideline range. The Seventh Circuit dismissed his appeal. In his plea agreement, Galloway waived his appellate rights with respect to the “sentence imposed and the manner in which the sentence was determined” except in the event of a deviation by the district court from a recommendation made by one of the parties. The court acknowledged that the language used in this appellate waiver is unusual, but rejected Galloway’s arguments that his lawyer’s sentencing arguments did not constitute a recommendation because they did not include a specific proposal for a certain length of incarceration. View "United States v. Galloway" on Justia Law

Pewaukee, Wisconsin law enforcement officers were searching for two African‐American men who, moments before, had committed an armed robbery and had been tracked to the parking lot of a nearby Walmart store. An officer stopped and questioned Street, the only African‐American man in the crowded Walmart. Street was not arrested then, but during the stop, he provided identifying information that helped lead to his later arrest for the robbery. The Seventh Circuit affirmed Street’s conviction, rejecting his argument that the stop violated his Fourth Amendment rights because he was stopped based on just a hunch and his race and sex. The officers stopped Street based on much more information than his race and sex. They did not carry out a dragnet that used racial profiling. Rather, the police had the combination of Street being where he was, when he was there, and one of a handful of African‐American men on the scene, thus fitting the description of the men who had committed an armed robbery just minutes before. That information gave the officers a reasonable suspicion that Street may have just been involved with an armed robbery, authorizing the “Terry” stop. View "United States v. Street" on Justia Law

Based on a 2005 domestic violence incident, Jones was charged with battery. For another incident, he was charged separately with intimidation and being a habitual offender. The court set a joint omnibus date of October 18. Indiana law then allowed prosecutors to make substantive amendments to pending charges only up to 30 days before the omnibus date. Nine days after that date, the state moved to amend the battery information to add criminal confinement. Jones’s attorney did not object; the court granted the motion without a hearing. In January 2006, the state moved to amend the intimidation charge to add language Months later Jones’s new attorney unsuccessfully moved to dismiss the amended intimidation information. On the first day of a consolidated trial, the state moved to amend the criminal-confinement charge (battery) again, to add “and/or extreme pain.” The court allowed the third amendment over Jones’s objection. Convicted, Jones was sentenced to 20 years' imprisonment for criminal confinement, enhanced by 25 years for being a habitual offender. Jones sought habeas relief under 28 U.S.C. 2254, arguing that his lawyer’s failure to object to the untimely first amendment constituted ineffective assistance. The Seventh Circuit granted relief. Applying the state’s statutes, as interpreted by Indiana’s highest court, a competent lawyer should have recognized that relief for his client was possible and would have pursued it. View "Jones v. Zatecky" on Justia Law