Articles Posted in Criminal Law

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Washington was driving a vehicle he owned when an Indianapolis police officer pulled him over in September 2016. Washington was arrested and charged with dealing in marijuana, resisting law enforcement, and obstruction of justice. The officer had Washington’s vehicle towed and held for forfeiture under Indiana Code 34- 24-1-1(a)(1) and 2(a)(1). In November 2016, Washington demanded the return of his vehicle per I.C. 34-24-1-3. He filed a federal class-action complaint, claiming such seizures violate the due process clause. In February 2017, the Prosecutor’s Office released the vehicle to Washington. The district court certified a class and granted Washington summary judgment, declaring I.C. 34-24-1-1(a)(1) (read in conjunction with other provisions of the chapter) unconstitutional in allowing for seizure and retention of vehicles without an opportunity for an individual to challenge pre-forfeiture deprivation. While an appeal was pending, Indiana amended the statute, arguably increasing the available process by providing for a probable cause affidavit, a motion for provisional release, and a shortened window for the Prosecutor to file a forfeiture complaint. The Seventh Circuit remanded for consideration of the constitutionality of the amended statute, expressing no opinion regarding the constitutionality of the old or new versions of the statute, regarding mootness, or regarding the class. View "Washington v. Marion County Prosecutor" on Justia Law

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In 1987, D’Antoni was charged with selling cocaine to a juvenile resulting in her death. While in jail, D’Antoni offered another inmate $4,000 to kill a government witness related to the charge. The inmate went to the police. D’Antoni was charged with conspiracy to kill a government witness and pleaded guilty to both charges. The Seventh Circuit affirmed his sentence of 35 years in prison on the drug charge and a consecutive 5-year term for the conspiracy. In 1991, D’Antoni was convicted of conspiracy to distribute LSD while in jail and received an enhanced sentence under the career offender provision of the 1990 Sentencing Guidelines, based on his prior felony drug and felony “crime of violence” convictions. The “crime of violence” definition included a residual clause, encompassing any felony “involv[ing] conduct that present[ed] a serious potential risk of physical injury to another." D’Antoni was sentenced before the Supreme Court (Booker) held that the Guidelines must be advisory. In 2015, the Supreme Court (Johnson), held the identical Armed Career Criminal Act residual clause “violent felony” definition was unconstitutional. D’Antoni sought resentencing, 28 U.S.C. 2255. In 2017, the Supreme Court held that Johnson did not extend to the post-Booker advisory Guidelines residual clause. The Seventh Circuit held, in its 2018 “Cross” decision, that Johnson did render the pre-Booker mandatory Guidelines residual clause unconstitutionally vague. The Seventh Circuit concluded that D’Antoni is entitled to resentencing even though “conspiracy,” “murder,” and “manslaughter” were listed as crimes of violence in the application notes to the 1990 version of USSG 4B1.2. The application notes’ list of qualifying crimes is valid only as an interpretation of USSG 4B1.2’s residual clause; because Cross invalidated that residual clause, the application notes no longer have legal force. View "D'Antoni v. United States" on Justia Law

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Tantchev, a native of Bulgaria, owned a trucking business that operated out of a warehouse in Chicago. Chogsom, a Mongolian immigrant, worked for Tantchev. Large deposits into Tantchev’s bank account prompted an investigation. After a six-day trial involving 29 witnesses, a federal jury convicted Tantchev of exporting and attempting to export stolen cars, submitting false documents to customs officials, and structuring financial transactions to avoid federal reporting requirements. That same jury acquitted Tantchev’s co-defendant, Chogsom, of charges related to the stolen cars and false documents, but convicted Chogsom of making a false statement to an IRS agent. The district court sentenced Tantchev to 40 months’ imprisonment and Chogsom to three years’ probation. The Seventh Circuit affirmed. The court rejected Tantchev’s argument that the district court should not have given a deliberate avoidance or “ostrich” instruction. The jury was entitled to conclude Tantchev purposely did not subject the shipping containers to the scrutiny he exercised in the other part of his business and draw a negative inference from that change in behavior. The court upheld the use of a jury instruction, “If you find that the defendant was in possession of property that recently had been stolen, you may infer that he knew it was stolen.” View "United States v. Chogsom" on Justia Law

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Police arrested Johnson at a Madison, Wisconsin, bar carrying five hydrocodone pills, two cell phones, gem packs containing marijuana residue, a plastic bag of antihistamine, and a loaded pistol. Johnson pled guilty to possession of a controlled substance with intent to deliver but went to trial and was convicted for possession of a firearm in furtherance of a drug trafficking crime, 21 U.S.C. 841(a)(1) and 18 U.S.C. 924(c). The Seventh Circuit affirmed, rejecting an argument that the jury instructions misstated the law and confused the jury. The administered jury instruction included the critical “Castillo” standard twice. The instruction effectively gave the jury its task, listed considerations to weigh in its discretion, and then iterated that legal standard; it clearly informed the jury that it must ultimately determine whether “the firearm furthered, advanced, moved forward or facilitated the crime.” The court upheld the admission of the government’s proffered expert testimony. The district court declined to conduct a Daubert hearing concerning that expert testimony on the relationship between drugs and guns in the narcotics underworld but considered the expert’s significant qualifications and experience, and properly applied the Daubert framework. The evidence was sufficient to support the conviction. View "United States v. Johnson" on Justia Law

Posted in: Criminal Law

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Henderson was indicted for possession of crack cocaine with intent to distribute and two related firearms offenses. In accordance with the Marshals Service’s policy in the Springfield Division, Henderson appeared in court for arraignment encircled by four security officers and shackled with leg irons and handcuffs connected to a waist chain. His attorney moved to have him unshackled except for the leg irons for the remainder of the arraignment and at all future pretrial hearings. Counsel argued that routine shackling in court violates the accused’s right to due process and asked the judge to hold a hearing to determine whether Henderson posed an individualized risk to justify the use of full restraints. The judge denied the request, deferring to the Marshals Service’s policy of using full restraints on prisoners at every nonjury court appearance. The Seventh Circuit dismissed an appeal for lack of jurisdiction, holding that the collateral-order doctrine does not apply; due process shackling claims may be effectively reviewed on appeal from a final judgment. The court declined to reframe the appeal as a petition for a writ of mandamus. View "United States v. Henderson" on Justia Law

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DEA agents, with an arrest warrant for Terry, waited for him to return from taking his son to school, arrested him when he got out of his car, and took him in for questioning. Other agents knocked on Terry’s apartment door. A woman answered, wearing a bathrobe. The agents identified themselves, explained that they had arrested Terry, and asked to enter. They did not ask the woman who she was or whether she lived at the apartment. She let them in, signed a consent form, and the search began. The woman then identified herself as the mother of Terry’s son, explaining that her son lived at Terry’s apartment, but she did not. Agents continued the search. At the field office, Terry refused to sign an advice‐of‐rights form, citing his previous experience with law enforcement but stated “he was willing to talk” and made incriminating statements about his role in a conspiracy to distribute heroin. The Seventh Circuit reversed the denial of his motion to suppress. It is not reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence. Terry’s education, sophistication, and familiarity with the criminal justice system provide sufficient evidence that he understood his rights when the agents read them to him and his willingness to speak was a “course of conduct indicating waiver,” notwithstanding his refusal to sign the form. View "United States v. Terry" on Justia Law

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Adkinson and others robbed an Indiana T-Mobile phone store and a Kentucky Verizon store at gunpoint. They later robbed nine additional stores. During its investigation, T-Mobile pulled data from cell sites near two victim stores and determined that only one T-Mobile phone was near both robberies; Adkinson was an authorized user on that account. T-Mobile determined where Adkinson’s phone traveled and voluntarily gave the data to the FBI, which used the information to obtain a court order under the Stored Communications Act, 18 U.S.C. 2703, granting the FBI access to additional cell-site data. Adkinson unsuccessfully moved to suppress the evidence obtained without a warrant. The court ruled that T-Mobile was not the government’s agent and, in his user agreement, Adkinson consented to T-Mobile’s cooperation with the government. Adkinson did not timely file a change of venue motion. On the morning of trial, seeing only one African-American prospective juror, Adkinson moved to transfer the case to a venue with “a better pool of African Americans.” Convicted of robbery, brandishing a firearm to further a crime of violence, and conspiracy to commit those crimes, Adkinson was sentenced to 346 months’ imprisonment. The Seventh Circuit affirmed. The Constitution does not entitle a defendant to a venire of any particular racial makeup and federal law authorized the government to prosecute Adkinson in any district where he offended. The government’s mere receipt of T-Mobile’s data is not a ratification of T-Mobile’s conduct. View "United States v. Adkinson" on Justia Law

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A confidential informant bought cocaine from Yarber on four separate occasions near the same Champaign intersection while police watched. Each time, Yarber drove a white Dodge Charger, which was registered to his girlfriend. Immediately following two buys, Yarber drove to his girlfriend’s apartment. Police surveilled the apartment three other times and saw the Charger parked in front. Once they saw Yarber exit the Charger and go inside the apartment. Police obtained a warrant, authorizing the police to search the apartment for drugs, drug paraphernalia, and suspected proceeds from drug transactions. Nowhere did the affidavit state that Yarber lived at the apartment or that he stayed there overnight. It referred to an Urbana apartment as Yarber’s “residence.” Yarber moved to suppress evidence discovered during the search of the Champaign apartment, arguing that, failing to establish a nexus between the drug dealing and the apartment, the affidavit failed to establish probable cause. After the court denied his motion, Yarber pleaded guilty to drug possession with the intent to distribute and to possession of a firearm by a felon; he was convicted of possession of a firearm in furtherance of drug trafficking, and sentenced to 420 months’ imprisonment. The Seventh Circuit affirmed. The warrant contained other facts sufficient to establish probable cause and, in any event, the police acted in good faith. View "United States v. Yarber" on Justia Law

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From 2002-2008 Boliaux operated EMC, a used-car dealership. He borrowed money. Most loans were secured by the cars’ certificates of title. Because there should be only one title certificate per car, the dealer cannot transfer good title to a customer without paying the lender. In 2007 Boliaux persuaded state officials to issue duplicate certificates of title on the pretense that the originals had been lost. He obtained multiple loans against single vehicles, exceeding the cars’ market value and leaving the lenders under-secured. He sold cars without repaying the loans. After a lender detected this and impounded the collateral, Boliaux persuaded the custodian to release eight cars, which he sold for his own benefit. In 2008, Boliaux’s wife incorporated Joliet Motors, which Boliaux operated from the former EMC premises. Joliet Motors received installment payments from EMC customers but did not remit them to lenders. Boliaux began check kiting. He was convicted of four counts of wire fraud and six of bank fraud, 18 U.S.C. 1343, 1344, and sentenced to 48 months’ imprisonment. The Seventh Circuit affirmed, rejecting arguments that the evidence was insufficient on the wire fraud counts because he did not transmit anything by wire, and on the bank fraud counts because no one from the banks testified that the banks lost money. The district judge properly declined to instruct the jury that it had to agree, unanimously, how Boliaux carried out his scheme. View "United States v. Boliaux" on Justia Law

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Graham had worked at a Milwaukee Aldi for six years before being fired, for stealing, months before the first robbery. Graham used his knowledge of store procedures and that Aldi trains employees to acquiesce to robbers. Graham would enter a store minutes before closing, hide until it closed, then approach employees with his gun drawn. After his sixth robbery, Graham was arrested and pleaded guilty to six counts of Hobbs Act robbery, 18 U.S.C. 1951(a), and using a firearm during a crime of violence, 18 U.S.C. 924(c)(1)(A)(ii). The court calculated a Guidelines range of 78-97 months for each robbery, followed by a mandatory consecutive sentence of 84 months for the firearm conviction. Graham argued that for 30 years, he had worked two full-time jobs to support his girlfriend and six children, living a crime-free life until the financial pressures of six children, one with serious medical issues, drove him to use drugs, steal food, and, finally, rob his former employer. The court noted that Graham’s criminal conduct was well-planned and executed and that there was “too much” criminal conduct to justify the sentence Graham requested. The court considered “uniformity, proportionality, certainty, and cost,” and imposed concurrent sentences of 60 months’ imprisonment for each robbery, followed by the mandatory consecutive 84-month sentence.. The Seventh Circuit affirmed, finding no procedural error in the imposition of the below-Guidelines sentence. View "United States v. Graham" on Justia Law

Posted in: Criminal Law