Articles Posted in Criminal Law

by
Bloomington Illinois Officer Squires received a crime-in-progress notification. The 911 operator informed him that a caller from the Tracy Drive Apartments reported a group of persons outside her apartment engaged in suspicious activity and that a short black male wearing a hoodie had a gun in his front pocket. Arriving two minutes later, Squires saw the group, approached, and observed that Adair roughly fit the 911 caller’s description (he did not have a hoodie) and had a large bulge in his front pants’ pocket. Adair sought to evade Squires by moving through the larger group. Squires then stopped and patted down Adair, finding a gun in his front pocket. The district court rejected a Fourth Amendment challenge. The Seventh Circuit affirmed. Under the totality of circumstances facing Squires at the Apartments, he had reasonable suspicion to stop and frisk Adair under the Terry v. Ohio standard. Squires reasonably believed that he was responding to an emergency 911 call in a high-crime area. Squires testified he had previously encountered Adair many times and immediately recognized him as not living at the Apartments, and the only person wearing clothing resembling the 911 caller’s description. Squires knew Adair had a prior felony conviction and Adair acted evasively. View "United States v. Adair" on Justia Law

by
Turner persuaded Bell to help him sell several stolen firearms. Turner later cooperated with law enforcement, provided information about the sale, and aided the government in targeting Bell. Upon Bell’s arrest, an officer opened Bell’s flip phone and viewed a photograph of a firearm on the home screen in what was likely an unconstitutional search. The district court declined to suppress the evidence obtained from the phone because the government subsequently obtained valid search warrants for it. The Seventh Circuit upheld the suppression decision and rejected a speedy trial argument that was based continuances granted by the district court and the nearly two‐year delay between his indictment and trial. There was an independent source for admitting the photo and the police later obtained a valid warrant. Before the search, Turner had stated that Bell had texted him a photo of a stolen AK‐47 and provided officers with the photo. Bell did not point to any time that was improperly excluded from the speedy-trial clock. The delays were attributable primarily to the defense and Bell was not prejudiced by the continuances. View "United States v. Bell" on Justia Law

by
Pierson was convicted of possessing drugs with intent to distribute and two related firearm crimes. Because of Pierson’s prior criminal record, his mandatory sentence was life in prison. The Seventh Circuit affirmed his conviction and sentence. While the admission of evidence of a gun found in Pierson’s kitchen may have amounted to a constructive amendment of the two firearm charges in his indictment, which charged him with possession of one particular gun found in Pierson’s car, it was not a “plain error” that would warrant reversal. Given the “ample evidence,” the error did not affect Pierson’s substantial rights. Pierson’s argument that the court erred under Apprendi v. New Jersey, by imposing the mandatory life sentence without having the jury find that he had two prior felony drug convictions is foreclosed by controlling Supreme Court precedent that recognizes an exception to that rule for evidence of prior convictions, Almendarez‐Torres v. United States. The First Step Act, Pub. L. No. 115‐391, 401(a)(2)(A)(ii), which was enacted while Pierson’s appeal was pending and which lowered the mandatory minimum sentence, does not apply to Pierson, whose sentence was imposed before the Act took effect. View "United States v. Pierson" on Justia Law

by
Fennell took kickbacks while employed as facilities and transportation director for Indiana’s Vigo County School Corporation. The evidence showed an actual loss amount of $110,600 in kickbacks that he and a codefendant received for steering government contracts to a favored bidder. The presentence investigation report recited that amount as restitution, which the district court imposed, but the court referred to that amount orally as the “intended” loss. Fennell sought a remand, arguing that 18 U.S.C. 3664(a) requires that the presentence report contain its own detailed accounting rather than incorporate the trial evidence by reference and that the district court erred by imposing restitution for the intended loss instead of actual loss. The Seventh Circuit affirmed. There was no plain error in the district court’s restitution calculation, and despite the mistaken oral reference to an intended loss, the record showed beyond reasonable dispute that the amount awarded was the victim’s actual loss. View "United States v. Fennell" on Justia Law

by
Coleman was convicted for a 1994 armed robbery, home invasion, residential burglary, and aggravated sexual assault. Three witnesses linked Coleman to the crimes. The court sentenced Coleman to 60 years’ imprisonment. Fifteen years later, a group of men came forward claiming they were responsible for the crimes. The Illinois Supreme Court vacated Coleman’s convictions and remanded for retrial. Rather than retry the case, the prosecution dropped it. Coleman was released in 2013; a later judicial order certified his innocence. Coleman sued the City of Peoria and four police officers, claiming that they elicited a false statement from an alleged accomplice through coercive interrogation techniques, employed improper and unduly suggestive identification procedures, and suppressed impeachment evidence. After three years of civil litigation, the district court granted defendants summary judgment on Coleman’s federal claims and state law malicious prosecution claim. The Seventh Circuit affirmed. Coleman failed to present evidence supporting a reasonable inference that defendants knowingly fabricated false evidence, caused unreliable eyewitness identifications to taint his criminal trial, withheld material evidence, or arrested him without probable cause. A vacated criminal conviction does not automatically establish that an individual’s constitutional rights were violated, or that police officers and prosecutors are necessarily liable under 42 U.S.C. 1983. View "Coleman v. Peoria" on Justia Law

by
Jensen was convicted of the 1998 murder of his wife, Julie. Two weeks before her death, Julie wrote a letter disclaiming any intention of suicide and stating that she feared her husband was going to kill her. She gave the letter to a neighbor in a sealed envelope to give to the police if anything happened to her. Julie also made similar statements to a police officer shortly before her death. The Wisconsin Court of Appeals rejected Jensen’s Confrontation Clause challenge to the admission of Julie’s letter. In a 28 U.S.C. 2254 habeas proceeding, the federal district judge issued a conditional writ requiring the state to either release Jensen or initiate proceedings to retry him. In 2015, the Seventh Circuit affirmed. Wisconsin timely initiated retrial proceedings. Before the retrial, the state judge concluded that the out-of-court statements were not testimonial, curing the constitutional defect in Jensen’s first trial. Reasoning that a second trial was unnecessary, the judge reinstated Jensen’s conviction. Jensen appealed; the Wisconsin Court of Appeals has not yet ruled. The federal district court denied Jensen’s motion to enforce the conditional writ. The Seventh Circuit affirmed, reasoning that its jurisdiction is limited to assessing compliance with the conditional writ. Wisconsin complied with the writ when it initiated proceedings for Jensen’s retrial. View "Jensen v. Pollard" on Justia Law

by
Fort Wayne Officer Hartman and others responded to an ongoing armed robbery at a Dollar General store, knowing that there had been several armed robberies at area Dollar General stores: two men would enter the store, display handguns, restrain employees, wait for the registers to open, and depart after collecting cash, cigarettes, and employees’ cell phones. Hartman crouched 10-15 feet from the store’s entrance; shelving blocked his view. Other officers positioned themselves beside the entrance. Officers at the back of the store radioed that suspects started to try to escape out the back but then retreated into the store. Video recordings from patrol cars show Hartman approaching the entrance as two men appeared. Johnson ran out of the entrance. Officers shouted to the suspects to get down. Hartman started to run toward Johnson, but then turned to Gant standing in the doorway with his left arm extended, holding the door open. Hartman fired two shots, striking Gant in the abdomen. Hartman believed Gant was preparing to shoot. Gant actually had not been holding anything in his hand. Gant pleaded guilty to armed robbery and filed a 42 U.S.C. 1983 excessive force action. The court granted summary judgment of qualified immunity for all defendants except Hartman, finding that a reasonable juror could conclude that Gant was obeying Hartman’s commands or did not have the opportunity to obey. The Seventh Circuit dismissed an appeal for lack of jurisdiction. Hartman’s argument is inseparable from the disputed facts identified by the district court. View "Gant v. Hartman" on Justia Law

by
Collins pleaded guilty to distributing cocaine and crack cocaine, 21 U.S.C. 841(a)(1). Because of a prior felony drug conviction, he faced a statutory minimum of ten years in prison, unless he qualified for the “safety valve,” 18 U.S.C. 3553(f)(5). On remand, the district court again determined that Collins did not qualify for the safety valve. The court focused on a statement in his proffer interview that he intended to use $40,000 cash found in his car at the time of his arrest, at least $15,000 of which were cocaine sales proceeds, to purchase a new car. Doubting the veracity of that claim, the court concluded that Collins had not established that he had “truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan,” 18 U.S.C. 3553(f)(5). The Seventh Circuit affirmed. Although Collins provided ample correct information about his offenses, the court weighed the record and concluded that Collins had not established his eligibility because his explanations about the cash were not credible. This conclusion was not clearly erroneous. It was a difficult decision on disputed facts. View "United States v. Collins" on Justia Law

Posted in: Criminal Law

by
Milwaukee officers were patrolling an area known for drug trafficking, armed robberies, and gun violence. Around midnight, they saw Richmond walking toward them with his right hand in the “kangaroo” pocket on his T-shirt and saw “a significant bulge” in that pocket. After the officers passed Richmond in their marked squad, he changed direction, quickened his pace, crossed a lawn, and moved toward a front porch. Unknown to the officers, Richmond lived in the duplex. The officers parked, followed Richmond and, from 20-25 feet away, saw Richmond open the outer screen door, bend down, and place an object on the doorframe between the screen door and front door. They suspected Richmond hid a gun. Richmond closed the screen door and turned around. Richmond stated that he did not have a gun. Officers walked onto the porch, opened the screen door, and saw a handgun. Richmond confirmed he was a convicted felon, so they arrested and charged him under 18 U.S.C. 922(g)(1). The Seventh Circuit affirmed the denial of a motion to suppress. The officers knew specific, articulable facts which, together, fostered their reasonable suspicion of “criminal activity.” Police may search an area strictly limited to that necessary for the discovery of weapons if they have a reasonable and articulable suspicion that the investigation's subject may be able to gain access to a weapon to harm officers or others nearby. View "United States v. Richmond" on Justia Law

by
Dr. Sheth, a cardiologist, admitted in a plea agreement that he engaged in a scheme to overbill government and private insurers by approximately $13 million, in violation of 18 U.S.C. 1347. The scheme resulted in a loss to Medicare of about $9 million in payments for services Sheth did not render between 2002 and 2007, and a loss of about $4 million to private healthcare insurers for the same conduct. After the government detected the fraud, in June 2007, it initiated an administrative proceeding and seized funds from four Harris Bank accounts that the government believed were the proceeds of Sheth’s fraud. In his plea, Sheth agreed to forfeit $13 million in assets; the government would apply the proceeds of the forfeited property to any restitution judgment resulting from his conviction. Sheth disputed the valuation of some of the property applied to the restitution judgment. The Seventh Circuit affirmed the district court’s decision as to the valuation of Seth’s real property but remanded for consideration of the application of $225,000 in interest that had accrued on the Harris accounts to the restitution judgment. View "United States v. Sheth" on Justia Law