Criminal Law

Dist. Ct. did not err in sentencing 71-year old defendant to life sentence on bank robbery and related firearm charges, even though Dist. Ct. initially indicated at sentencing hearing that it intended to impose 156-month term of incarceration on said charges prior to defendant uttering profanity-laced rant that included threats to sentence judge and his family that resulted in continuance of sentencing hearing and ultimate imposition of life sentence two hearings later. Instant life sentence was not substantively unreasonable in light of defendant’s extensive criminal history and his stated commitment to life-long criminality and violence directed at sentencing judge and his family. Moreover, imposition of life sentence was not that much longer than initial intended sentence given defendant’s life expectancy at age 71. Also, Dist. Ct. did not commit clear error in denying defendant’s motion for recusal based on threats made to Dist. Ct., where: (1) there was no evidence of actual bias of sentencing judge; and (2) imposition of life sentence was not substantively unreasonable. Moreover, Dist. Ct. could properly have found that defendant’s threats were made in effort to delay or derail defendant’s sentencing, and that defendant did not have capacity to carry out threats. (Dissent filed.)

Defendant waived any argument on appeal of any issue regarding propriety of Dist. Ct.’s entry of $80,000 restitution order consisting of $10,000 payments to eight minor victims of defendant’s “sextortion” scheme involving defendant’s sexual exploitation of said minor victims. Waiver was appropriate, where defendant did not explicitly object to imposition of restitution order when given opportunity to do so, and record otherwise suggested that defendant’s silence on issue was result of unsuccessful sentencing strategy. Moreover, defendant waived Dist. Ct.’s subsequent amendment of judgment to add $30,000 to restitution order that reflected discovery of three more minor victims, where record showed that government’s motion requesting amendment of judgment to add additional restitution amount indicated that defendant did not object to motion, and defendant did not dispute his non-objection to government’s motion.

Dist. Ct. did not err in sentencing defendant to 70-month term of incarceration on unlawful possession of firearm charge, where said sentence was based, in part, on finding that defendant had used same firearm two hours earlier in robbery incident involving defendant’s supervisor. Dist. Ct. could properly use Sentencing Guideline for robbery because of its finding that defendant had used same firearm in prior robbery. Moreover although defendant argued that record did not support said finding, preponderance of evidence supported said finding given supervisor’s testimony describing defendant's use of firearm to obtain supervisor’s keys to company van, as well as evidence showing that firearm was in front seat of van less than two hours later when defendant was arrested standing next to van. Ct. further noted that defendant did not object at sentencing hearing to Dist. Ct.’s finding that same firearm was used at prior robbery. Also, there was sufficient evidence to establish that defendant had discharged firearm during robbery, where supervisor testified that there was no gap between defendant’s discharge of firearm and his taking of van’s keys from supervisor.

Dist. Ct. did not err in dismissing defendant-Chinese-based online retailer’s motion to dismiss on personal jurisdiction grounds, plaintiffs-professional and collegiate sports organizations’ action, alleging that defendant violated Lanham Act by selling counterfeit sports items in its online stores. Record showed that investigator purchased pair of shorts by placing order and designated address in Illinois as delivery destination, and that defendant delivered shorts to Illinois address. While defendant lacked any physical presence in Illinois, defendant had sufficient minimum contacts with Illinois to support existence of defendant’s personal jurisdiction, where defendant: (1) established online store by using Amazon as third-party retailer; (2) unequivocally asserted through its online store willingness to ship its goods to Illinois and established capacity to do so; and (3) when plaintiff’s order was placed, it filled said order and intentionally shipped shorts to Illinois address. Fact that plaintiff generated lawsuit by placing only single order did not require different result. Ct. further found that notions of fair play and substantial justice did not preclude subjecting defendant to jurisdiction in Illinois.

Dist. Ct. did not commit plain error in imposing $10,421.66 restitution order on remand, even though said order did not credit defendant $433.32 that defendant had previously paid on initial restitution order. Defendant failed to raise issue at remand sentencing hearing, and record showed that all parties agreed that defendant should be credited for said amount. As such, Ct. of Appeals was confident under instant plain error standard that defendant will be credited with said amount, such that defendant’s request for limited remand to generate new restitution order was not necessary.

Dist. Ct. did not err in granting defendant’s habeas petition challenging his murder conviction on ground that his trial counsel was ineffective for failure to consult forensic pathologist regarding cause of death of victim. Issue at trial was whether victim died as result of fall from two-story balcony or whether victim died from beating following his fall, as determined by state’s forensic pathologist. Indiana State Appellate Court used wrong legal standard by requiring defendant to present evidence to show that jury would have concluded that victim’s injuries were solely result of fall, as opposed to requiring defendant to present evidence that would create reasonable doubt as to whether government has established its version of facts. Moreover, trial counsel’s failure to investigate use of forensic pathologist to establish cause of death was attributable to inattention, rather than reasoned strategic judgment, and that use of defendant’s proposed forensic pathologist would have tended to rule out bludgeoning as cause of death. Also, trial counsel’s failure to investigate use of forensic expert was prejudicial, where: (1) no one testified to seeing defendant hit victim after victim’s fall; (2) testimony of proposed forensic pathologist would have presented jury with conflicting evidence as to whether fall alone could cause victim’s death; and (3) there was reasonable probability that jury would have some doubt as to whether victim was beaten after fall. (Dissent filed.)