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

Worthen, a FedEx driver, delivered packages to Maxie, the owner of a southern Indiana gun store. Worthen set up a meeting with Maxie, purportedly for a gun trade. He actually wanted to case the store with his brother and cousin. They met with Maxie for an hour, surveyed the store, and left. They returned the next day, having decided to kill Maxie. Worthen conversed with Maxie, then pulled out a gun and shot Maxie in the eye, killing him. The men then stole 45 firearms and Maxie’s laptop, which recorded the video feed from the store’s surveillance cameras. Heading back to Indianapolis, Worthen threw the gun and laptop into a cornfield. Days later, police arrested the men, finding only four of the stolen firearms in Worthen’s possession. They had already distributed most of the firearms throughout Indianapolis.Two guns were recovered in investigating unrelated crimes; 36 remain unrecovered. Worthen pled guilty to Hobbs Act robbery, 18 U.S.C.1951(a) and causing death while using or carrying a firearm during a crime of violence, 18 U.S.C. 924(j), which authorizes a sentence of death or life imprisonment. The government agreed to drop other charges and to not seek the death penalty. The court sentenced Worthen to a total of 60 years’ imprisonment. Based on his appeal waiver, the Seventh Circuit dismissed Worthen’s appeal in which he argued that Hobbs Act robbery (the predicate offense for his 924(j) conviction) is not a “crime of violence.” View "United States v. Worthen" on Justia Law

Patrick, on parole, did not comply with the conditions of his release from state prison. A warrant issued for his arrest. Milwaukee police obtained a second warrant, which authorized them to locate Patrick using cell‐phone data. Police arrested him in a car, on a public street, in possession of a firearm. The Seventh Circuit affirmed denial of a motion to suppress evidence of the gun, rejecting Patrick’s challenge to the validity of the location‐tracking warrant, in which he argued that his person was not contraband nor the proceeds of a crime, so that it was off limits to investigation. The court noted that no warrant was required. Patrick was visible to the general public. The court noted that, under recent Supreme Court precedent, even if the police had stopped Patrick’s car for no reason and later learned that he was a fugitive, the gun would have been admissible. The officers who arrested Patrick had both probable cause to believe that he was a fugitive and knowledge of the arrest warrant. The court discussed the use of a cell-site simulator, which potentially reveals information about many persons other than the suspect, but stated that a “fugitive cannot be picky about how he is run to ground.” View "United States v. Patrick" on Justia Law

In 1997, Rodriguez was convicted of two counts of predatory criminal sexual assault of a child and sentenced to 60 years in prison. The Illinois State Police’s Division of Forensic Services had analyzed four semen stains on a blanket from the bed of the 11-year-old victim. Neither side presented the report at trial. The victim’s mother testified that Rodriquez had indicated he was “up all night” doing laundry; during closing arguments the prosecutor asked whether that might be “to get rid of evidence.” Objecting to the statement, in the presence of the jury, defense counsel stated “In fact, counsel knows that there was sperm on various items that was not presented.” The judge instructed the jury to consider only evidence admitted during trial. On direct appeal, Rodriguez argued, that he was denied effective assistance by the comment about evidence of sperm being found on “various items.” The Illinois Appellate Court denied relief, concluding that Rodriguez had not been prejudiced. The district court denied a subsequent federal habeas corpus petition. The Seventh Circuit affirmed, holding that the state court did not unreasonable the standard from Strickland v. Washington, in light of the other evidence and the judge’s curative instruction. View "Rodriguez v. Gossett" on Justia Law

Flournoy was convicted of conspiring to possess cocaine and of attempting to possess cocaine (21 U.S.C. 846). During closing arguments, the defense referred to the prosecution’s failure to call certain witnesses; the prosecutor responded that “the defense can call witnesses too, if they want.” The court rejected defense counsel’s objection that a defendant has an absolute right not to testify, but instructed the jury not to consider the defendant’s failure to testify. The Seventh Circuit affirmed Flournoy’s conviction, rejecting his argument that he was entitled to a new trial because of the prosecutor’s inappropriate comments during closing argument and because the government presented testimony from a cooperating witness that conflicted with that witness’s plea agreement. If it is clear to jurors that the government carries the burden of proof, the prosecutor may tell the jury that a defendant has the power to subpoena witnesses. There was no indication that the witness testified falsely or that the discrepancy between the testimony and the plea agreement was prejudicial. The court remanded Flournoy’s 204-month sentence, which imposed discretionary conditions of supervised release without considering the sentencing factors (18 U.S.C. 3583(d); 18 U.S.C. 3553(a)), and without stating the reasons for the specific conditions. View "United States v. Flournoy" on Justia Law

While conducting surveillance, based on information about a cocaine transaction, agents followed Bausley to a Chicago apartment building. Bausley parked on the street. Thompson came out wearing a backpack and entered Bausley’s car. Bausley drove around the block and again stopped outside the building. Thompson got out and reentered the building. Agents who saw Thompson communicated with agent Reynolds, who was present but could not see Thompson. Reynolds eventually approached Thompson, who had returned to the lobby from the ninth floor without the backpack. Thompson repeatedly denied living in the building but allowed Reynolds to use his keys. Reynolds used Thompson’s key to open unit 902. Inside the apartment, Reynolds again told Thompson that he was not under arrest and that he did not have to talk to the agents. Thompson signed a consent form, then stated that there was a gun in the TV stand and that there were drugs and cash elsewhere in the apartment. The agents recovered the gun, a kilogram of cocaine, and $10,000 in cash. Thompson was not arrested and agreed to cooperate. Days later, when Thompson stopped answering calls, he was arrested. Thompson was indicted for possession with intent to distribute 500 grams or more of cocaine, 21 U.S.C. 841(a)(1). The Seventh Circuit affirmed denial of Thompson’s motion to suppress; the agents did not commit any violations of Thompson’s Fourth Amendment rights that could have tainted his consent to search his apartment. View "United States v. Thompson" on Justia Law

In 2005, Jennifer’s mother found her 19-year-old daughter dead. Investigators found a chewed 100-microgram Duragesic fentanyl skin patch. The patch is a powerful opioid, not meant to be ingested. Jennifer did not have a prescription. Her friend, Krieger, had such a prescription for pain from severe spinal problems, and had given Jennifer a patch. Investigators also found a hypodermic needle, a small pipe with burnt residue on it, and two red capsules. Neither the capsules nor the pipe were taken into evidence and tested. The syringe was finally tested three years later. A medical examiner found many drugs in Jennifer's system, but concluded that she died from fentanyl toxicity. Krieger was charged with distribution of fentanyl with death resulting, 21 U.S.C. 841(a)(1); 841(b)(1)(c). After its medical witness fled the country, with legal problems of his own, the government dropped the “death resulting” charge, which it would have had to prove beyond a reasonable doubt. Krieger pleaded guilty to distribution. The prosecution then proposed that “death resulting” be considered as a sentencing factor. The district court found, by a preponderance of the evidence, that death had resulted from the distribution, and that it could only give a 20-year sentence. The Seventh Circuit affirmed. The Supreme Court later issued its decisions in “Alleyne” decision and Burrage v. United States, Krieger filed a petition under 28 U.S.C. 2255. The Seventh Circuit vacated her sentence. The district court can consider Jennifer’s death, using a preponderance of the evidence standard, as recommended under USSG 2D1.1; implementation of the mandatory minimum sentence, however, would require that a jury find, beyond a reasonable doubt, that the patch provided by Krieger was the but-for cause of Curry’s death. The time for such a determination has passed. View "Krieger v. United States" on Justia Law

Chicago officer Lewellen arrested drug dealer Rodriguez in 1996 and turned him into an informant. They developed a more lucrative arrangement. Rodriguez would collect information about drug dealers; during seemingly legitimate detentions, Lewellen would rob the dealers of drugs and money. Over several years, they brought in more participants. Robbery escalated into kidnapping or even murdering dealers for money and drugs. In 2009 the DEA filmed an attempted robbery of 600 kilograms of cocaine from a warehouse. Multiple defendants were charged with racketeering conspiracy to commit murders, kidnappings, robberies, drug trafficking, and obstruction of justice; conspiracy to possess with intent to distribute five or more kilograms of narcotics; and individual participation in those substantive offenses. Several arranged plea agreements, six were tried, and five were convicted. The Seventh Circuit affirmed the convictions, but remanded for resentencing in light of the Supreme Court’s 2013 “Alleyne” decision. The court rejected a challenge to dismissal of a juror who had nine convictions; upheld the trial court’s decision to reread the Silvern instruction instead of declaring a mistrial after the jury indicated that it was unsure if it could reach a verdict and failure to hold a hearing concerning a crying juror; rejected a claim that the government knowingly introduced false testimony; held that any error in allowing witnesses to look through the courtroom window to identify defendants was not prejudicial; and upheld denial of Lewellen’s motion to sever and various evidentiary rulings. View "United States v. Lewellen" on Justia Law

From 2006-2013, Lewis fraudulently held herself out as a Fidelity account representative to at least 12 “investors,” ages 75-92. Although she had been a Financial Industry Regulatory Authority registered broker, 1990-2006, she was neither a registered broker nor affiliated with Fidelity. Lewis set up joint accounts for her investors, including her name on each. Lewis obtained debit cards and forged signatures on checks associated with the accounts to embezzle more than $2 million. She pled guilty to wire fraud, 18 U.S.C. 1343; the government agreed to recommend no more than 10 years’ imprisonment. The court imposed a sentence of 15 years’ imprisonment. The Seventh Circuit remanded for resentencing based on her conditions of supervised release. Before the resentencing hearing, Lewis filed a motion, arguing for the first time, that the government had breached the plea agreement. The district court denied the motion, holding that Lewis had waived this argument, then again sentenced Lewis to a 15‐year term. The Seventh Circuit affirmed, upholding the court’s refusal to consider Lewis’s argument. The court erred by not affirmatively acknowledging that it could have considered it, but the error was harmless because it alternatively rejected the argument, and the argument is meritless. The court did not err with respect to the vulnerable-victim enhancement; the sentence was substantively reasonable. View "United States v. Lewis" on Justia Law

In 1999, three masked men broke into a Chicago apartment shared by Stone, his cousins, and Grant. Grant and one cousin were home. One intruder beat Grant with a bat. The intruders stole jewelry, marijuana, and cash before fleeing. Stone arrived home, called his half-brother, “Junior,” and explained what happened. Junior, Stone, and Jones decided that Gardner was to blame. They lured Gardner outside; an altercation ensued. They claim Gardner produced a gun. Gardner was fatally shot. Stone turned himself in the next day, claiming that he shot to protect Junior. Stone was convicted of murder. Jones was separately convicted. In his habeas petition, Jones alleged that his trial counsel was constitutionally ineffective under the Strickland rule for failure to present Stone’s testimony. Stone had consistently stated that he alone shot Gardner. Stone’s story matched the physical evidence and some eyewitness testimony. Jones failed to submit an affidavit from Stone, as Illinois law requires. The state appellate court found the claim procedurally defaulted and rejected the claim on the merits, holding that failure to call Stone was “trial strategy.” The federal district court excused the procedural default based on new evidence of Jones’s actual innocence (Stone’s testimony) and concluded that the state court unreasonably applied Strickland. The Seventh Circuit affirmed the grant of relief. Failure to call Stone cannot reasonably be classified as mere trial strategy within the range of objectively reasonable professional judgments. View "Jones v. Calloway" on Justia Law

Morrison and Novak (defendants) sold “herbal incense” from their retail store, JC Moon, in Ashland, Wisconsin. The substances included XLR-11, UR-144, PB- 22, and 5F-PB-22, which then were not listed on the controlled substance schedules but were similar to scheduled controlled substances. Undercover law enforcement officers made 28 controlled purchases at JC Moon and learned that defendants hid a significant portion of their cash income from the IRS by “skimming” large bills from the cash registers. From 2010 to 2012, defendants under-reported JC Moon’s business income by $575,752 for a tax loss of $186,095. Defendants pleaded guilty to violation of the Controlled Substances Analogue Act, 21 U.S.C. 813 and tax fraud, Novak was sentenced to 96 months and Morrison to 48 months in prison. The Seventh Circuit affirmed, noting a Supreme Court holding that holding that the Analogue Act is not unconstitutionally vague due to its scienter requirement and rejecting challenges to the court’s acceptance of their pleas and to the sentences. The totality of the circumstances surrounding Novak’s and Morrison’s guilty pleas indicated that they entered into those pleas voluntarily and with sufficient understanding of the charges against them; there was sufficient factual basis for the pleas. View "United States v. Novak" on Justia Law