Articles Posted in Criminal Law

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Jackson was convicted for conspiracy to distribute over 1,000 grams of heroin, 21 U.S.C. 841(a)(1) and 846; possession with intent to distribute a substance containing heroin, 21 U.S.C. 841(a)(1); and distribution of a substance containing heroin, 21 U.S.C. 841(a)(1). The Seventh Circuit affirmed, rejecting claims that the district court abused its discretion when it allowed a witness to testify that Jackson had threatened to kill her and that the prosecutor’s closing argument included improper vouching and invited the jury to consider matters other than his guilt in reaching its verdict. The threat testimony was both relevant to, and probative of, the central issue: whether Jackson conspired to distribute heroin. Even if the prosecutor’s comments were improper, the evidence against Jackson was substantial so that those comments did not affect the jury’s verdict; in addition the comments directly responded to the defense’s efforts to undermine the credibility of witnesses based on their cooperation with the government. The defense had an opportunity to counter the statements. View "United States v. Jackson" on Justia Law

Posted in: Criminal Law

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Abu-Shawish, the executive director of a non-profit organization, received a federally-funded (HUD) grant for a plan for revitalizing a Milwaukee street, submitting a plan that was “essentially identical” to a plan submitted by someone else. In 2005, he was convicted of federal program fraud, 18 U.S.C. 666(a)(1)(A). He served three years in prison. The Seventh Circuit vacated Abu-Shawish’s conviction because the statute requires that the defendant be an agent of the defrauded organization (Milwaukee). On remand, the district court dismissed the program fraud indictment. Abu-Shawish was indicted for mail fraud (18 U.S.C. 1341) and transporting, in foreign commerce, funds obtained by fraud (18 U.S.C. 2314). Acquitted in 2008, Abu-Shawish sought damages under 28 U.S.C. 1495 and 2513 for unjust conviction and imprisonment, having unsuccessfully sued for malicious prosecution. The Claims Court dismissed without prejudice because Abu-Shawish had not obtained a required certificate of innocence from the court where he was convicted. Abu-Shawish filed a pro se petition for a certificate of innocence. The government never responded and does not argue that Abu-Shawish’s petition is time-barred. The Seventh Circuit vacated the district court's dismissal. Abu-Shawish received no meaningful opportunity to be heard. The court applied a standard too rigorous for the pleading stage of a new civil case embedded within a closed criminal case. The question is whether Abu-Shawish can show by a preponderance of the evidence that he was not guilty of a crime, not whether the evidence would have allowed a conviction. View "Abu-Shawish v. United States" on Justia Law

Posted in: Criminal Law

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The husband of the attorney representing the ex-wife of Perillo’s boyfriend called 911. Perillo was arrested in possession of multiple weapons and disguises while hiding in the caller’s SUV. Perillo was released on bond and fled. After she was re-arrested, her cellmate cooperated with the FBI in setting up a “sting” in which Perillo hired a hitman (undercover agent) to kill the attorney. She pleaded guilty to conspiracy to commit kidnapping, 18 U.S.C. 1201(c), and to commissioning a murder for hire, 18 U.S.C. 1958. Before sentencing, Perillo moved to withdraw her plea. The court denied Perillo’s motion and sentenced her to concurrent terms of 324 months for conspiracy to kidnap and 120 months for commissioning a murder for hire and ordered Perillo to pay $75,000 in restitution. The Seventh Circuit dismissed her appeal. Perillo’s plea agreement included a valid appellate waiver. The fact that other specific terms of the sentence were mentioned and restitution was not mentioned does not remove restitution from the “all provisions” language. To enter a knowing and voluntary plea, Perillo did not need to know of every defense theoretically available to the charges. She needed to know only the defenses that she could plausibly raise, given the nature of the charges and the evidence against her. Entrapment was not such a defense for Perillo. View "United States v. Perillo" on Justia Law

Posted in: Criminal Law

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Lee was sentenced to life imprisonment. His sentence was reduced for his substantial assistance to the government and was later reduced to 112 months because of a retroactive Sentencing Guidelines change. After he was discharged, he began serving his supervised release. Lee missed numerous scheduled drug tests and probation meetings. He chased his girlfriend, Roland, down a flight of stairs and repeatedly kicked her after she fell. Lee fled, but was ultimately arrested. He called friends from jail, cajoling them to get Roland to change her story. The court found that Lee had violated the conditions of his supervised release. Lee argued that the battery was a state court misdemeanor and a state court “probably would have made both parties go to counseling.” The district court sentenced Roland to 30 months’ imprisonment, citing Lee’s numerous violations of supervised release leading up to the attack and the need to deter further criminal conduct and protect the public. The Seventh Circuit affirmed, noting that Lee did not argue that a longer sentence would unjustifiably subject him to harsher treatment than similarly situated defendants in the district court, Lee also complained that the district court failed to complete a form stating the reasons for his sentence. It is not clear that the court has an obligation to do so when revoking supervised release, but, in any case, Lee suffered no prejudice from the failure to complete this administrative task. View "United States v. Lee" on Justia Law

Posted in: Criminal Law

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Indiana Child Protective Services removed Swallers’s daughter from his custody. Swallers responded with a deluge of federal filings and filed “Common Law Liens” (each $10,000,000) against all the judges in the Southern District of Indiana except Judge Young. Judge Pratt ordered the Marion County Recorder to expunge any liens that Swallers had filed against Judges Lawrence, Barker, Magnus‐Stinson, Pratt, and Young. Swallers was charged with filing a false lien and encumbrance against a federal judge, 18 U.S.C. 1521, and with possessing ammunition as a felon, 18 U.S.C. 922(g)(1). That case was assigned to Judge Young. Swallers moved for Judge Young’s recusal; 28 U.S.C. 455(a) requires recusal in any proceeding in which a judge's impartiality might reasonably be questioned, Judge Young denied the motion. Swallers pled guilty to the false lien charge; the felon‐in‐possession charge was dismissed. None of the judges named in Swallers’s liens submitted a victim‐impact statement. Judge Young imposed the agreed‐upon "time served" sentence. Swallers sought to vacate his conviction on the ground that Judge Young should have recused himself. The Seventh Circuit affirmed. Judge Young was not a victim of Swallers’s liens; there was little risk that his professional relationship with the victims would interfere with the case because the crime had little effect on them. This is not a case in which a well‐informed observer would perceive a significant risk that Judge Young would decide this case on a basis other than its merits. View "United States v. Swallers" on Justia Law

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Wheelchair-using detainees sued Cook County, alleging violations of the Americans with Disabilities Act and the Rehabilitation Act, based on purportedly inaccessible ramps and bathroom facilities at six county courthouses. The district court certified a class for purposes of injunctive relief. The named plaintiffs also sought damages individually for the same alleged violations. The district court held an evidentiary hearing on the equitable claims and entered a permanent injunction, finding that the defendants had violated the ADA. Relying largely on the same findings, the court granted the plaintiffs partial summary judgment on liability in their personal damage actions, then submitted the question of individual damage awards to a jury. The Seventh Circuit vacated in part. The district court improperly relied on its own findings of fact when it granted partial summary judgment to the plaintiffs on their damage claims. When equitable and legal claims are joined in a single suit, common questions of fact should be tried first to a jury unless there are extraordinary circumstances or an unequivocal waiver by all parties of their jury trial rights. The court upheld the class certification. View "Lacy v. Cook County, Illinois" on Justia Law

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Defendant, a long-time leader of the Chicago-area Latin Kings street gang, had 10 convictions, including a 2008 Illinois conviction for aggravated unlawful use of a weapon. He served his prison sentence; the statute was later invalidated. In 2014, he was convicted of aggravated discharge of a firearm and has remained in prison. In a federal racketeering prosecution, he pleaded guilty to conspiracy, 18 U.S.C. 1962(d) and argued that the judge should reduce his sentence for the time he had already served in prison on charges related to conduct that was part of the ongoing racketeering conspiracy. He did not dispute the factual allegations and received no criminal history points for the 2008 conviction. Because telephone recordings showed that he continued to act in furtherance of the conspiracy while in prison, the probation officer counted the 2014 offense toward his criminal history score and not toward the score for his underlying offense in accordance with the Guidelines. The district judge, noting the prison sentence he was still serving, imposed a 210-month sentence, at the bottom of the Guidelines range, to be served concurrently with the remainder of Defendant’s state sentence. The Seventh Circuit affirmed, citing the discretionary nature of the Guidelines relating to downward departures for discharged prison sentences. The court rejected an argument based on the inequality of Defendant serving more time than his codefendants, who had previously avoided prison time despite ongoing participation in gang activities. View "United States v. De La Cruz" on Justia Law

Posted in: Criminal Law

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Blackwell stole cash and drugs from Thomas. To punish her and recover his cash and drugs, Thomas kidnapped Blackwell’s younger brother and sister in Indiana and had them taken to Michigan and Kentucky before law enforcement found them. Convicted of conspiracy to commit kidnapping and two counts of kidnapping, Thomas was sentenced to life in prison. The Seventh Circuit affirmed, rejecting arguments that Blackwell was allowed to offer inadmissible and prejudicial testimony; that the district court should have excluded cell-site location information about cell phones associated with Thomas; that the court erred in its Sentencing Guideline calculations; and that the court erred under Alleyne v. United States, by failing to have the jury decide that the kidnapping victims were under 18 years old, which increased the mandatory minimum sentence. Thomas had not raised any of those issues in the district court. The district court did not plainly err in dealing with Blackwell’s testimony and her apparent inability to follow instructions about answering what she was asked and not raising certain subjects or in admitting the cell-site location evidence where Thomas did not move to suppress or even object to that evidence. The court’s Alleyne error was harmless, calling for no remedy under the plain-error rule. View "United States v. Thomas" on Justia Law

Posted in: Criminal Law

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For five years, DeHaan, a licensed family‐practice physician working in the Chicago and Rockford areas, was affiliated with agencies providing medical services to homebound patients, and served as medical director of several home health agencies, assisted living facilities, and hospices. DeHaan billed Medicare at the highest levels for services to homebound patients that were ostensibly time‐consuming or complex, when in fact he had either conducted a routine, non‐complex patient visit or had not seen the patient at all on the occasion for which he was billing. At the behest of home health agencies, DeHaan certified as homebound patients whom he either knew did not meet Medicare’s criteria (42 U.S.C. 1395n(a)(2)(A)) for home care or as to whom he lacked meaningful knowledge. DeHaan pled guilty to two counts of a 23‐count indictment, admitting to overbilling and fraudulent certifications. The district court took evidence and found that he was responsible for fraudulently certifying the eligibility of least 305 individuals for home health care services, resulting in wrongful billings to Medicare of nearly $2.8 million. The Seventh Circuit affirmed, finding no error in the district court’s “conservative loss‐estimation methodology,” and upheld a within‐Guidelines sentence of 108 months in prison with an order to pay restitution of $2,787,054.58. View "United States v. DeHaan" on Justia Law

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Davis was convicted of two counts of being a felon in possession of a firearm, 18 U.S.C. 922(g)(1). Count One arose from an incident on July 20, 2016. Davis got into a fight at the home of Jackie and Wamue. Police arrived quickly and found a firearm on the curb outside the house. Davis argued that Jackie or Wamue, both convicted felons, set him up. The government presented evidence to prove that Davis brought the gun to the house. On appeal, Davis objected to testimony from responding Officer Cline, as to prior consistent statements made by Jackie and Wamue, and testimony from Davis’s six-year-old daughter. Count Two arose from an incident on August 30, when police executed a warrant for Davis’s arrest. During a pat down of Davis, an officer found a Crown Royal bag tied to his boxer shorts. Officers also saw a revolver barrel sticking out of a Crown Royal bag in the mudroom, then obtained a search warrant and discovered the firearm was a disassembled, stolen revolver. They found a third Crown Royal bag in a basement crawl space. Davis lived with six others. The evidence was conflicting as to the owner of the revolver. On appeal, Davis contested the government calling his housemate and adult son, J.R., to testify, and argued that there was insufficient evidence that the gun was his. The Seventh Circuit affirmed, upholding all of the challenged evidentiary rulings. View "United States v. Davis" on Justia Law

Posted in: Criminal Law