Criminal Law

In prosecution on two counts of unlawful possession of firearm charges, arising out of two incidents of defendant’s girlfriend making straw purchases of two firearms at store in defendant‘s presence, Dist. Ct. did not err in rejecting defendant’s contention during trial that instant indictment was constructively amended, even though defendant argued that: (1) record showed that defendant handled one firearm at store, but girlfriend purchased different firearm of similar make and model; and (2) it was unclear from indictment as to which incident was at issue in charged offense. Dist. Ct. required prosecutor to choose which theory of possession, i.e., actual or constructive, which did not expand scope of indictment, and jury was instructed to consider only girlfriend’s purchase of firearm as relevant incident. Also, indictment was not fatally duplicative, and prosecutor’s showing of video of defendant’s handling of separate firearm did not afford jury broader basis on which to convict defendant.

In prosecution on charge of unlawful possession of firearm by felon, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of rifle found in defendant’s home, under circumstances, where: (1) defendant was arrested outside of his front door pursuant to arrest warrant on charges of aggravated battery by discharge of firearm; (2) defendant told officers that children were in his house; (3) officers conducted limited search of house and saw rifle in plain view; (4) 45 minutes after limited sweep, defendant’s housemate arrived at house and gave police consent to search house; and (5) rifle was seized during consensual search. Defendant conceded that housemate had authority to consent to search of home, and Ct. rejected defendant’s claim that said search was tainted by any initial unlawful entry to home, where housemate’s consent was given 45 minutes after initial entry, and thus was sufficiently attenuated from any illegal entry. Ct. also observed that government met its burden to show that officers had good-faith reasons for conducting limited sweep. (Dissent filed.)

Dist. Ct. did not err in imposing above-Guideline, 87-month term of incarceration on charge of unlawful possession of firearm by felon. Instant charge arose out of incident where defendant arrived at ex-girlfriend’s house with loaded handgun and demanded to be let inside. Applicable guideline range was 33 to 41 months, and Dist. Ct. justified longer sentence based on dangerousness of defendant’s conduct and his extensive criminal history. While Ct. of Appeals found that Dist. Ct. should not have used procedure that attributed additional offense levels that corresponded to sentencing factors contained in section 3553(a), because Dist. Ct. was using enhancements that did not formally apply, no remand was required, where Dist. Ct. also provided more traditional explanation that described why above-Guideline sentence was reasonable given all factors under section 3553(a). Ct. also rejected defendant’s contention that Dist. Ct. had double-counted his criminal history and relied on inaccurate information regarding status of his outstanding warrants.

Dist. Ct. did not err in denying defendant’s motion to dismiss indictment on two drug charges that pertained to two 2014 incidents, even though defendant argued that he was immune from said charges, where, according to defendant, federal authorities had granted him immunity from said charges in exchange for his cooperation in investigations made by local police department in Decatur, Illinois. Dist. Ct. could properly find that defendant was granted immunity only with respect to any state charges arising out of said 2014 incidents. Moreover, state officials offering defendant immunity had no authority to do so on behalf of federal government. Ct of Appeals also held that U.S. Attorney’s Office did not directly or indirectly authorize federal non-prosecution agreement in this case. Ct. also rejected defendant’s Brady violation allegation that prosecutor withheld certain emails that would have supported his claim regarding existence of federal non-prosecution agreement, where subject emails actually worked against defendant’s claim, and where mere delay in emails’ tender did not prevent defendant from eventually using said emails in his immunity claim in Dist. Ct.

Dist. Ct. erred in sentencing defendant to above-Guideline, 84-month term of incarceration on unlawful possession of firearm by felon charge, where said sentence was based, in part, on Dist. Ct.’s belief that defendant had used firearm in shooting incident just prior to his arrest. Defendant was entitled to new sentencing hearing, where Dist. Ct. made inconsistent findings with respect to issue as to whether defendant had used gun in shooting incident, where: (1) Dist. Ct. adopted presentence report’s recommendation against applying enhancement under section 2K2.1(b)(6)(B) of USSG that called for increased sentence if defendant used firearm in connection with another felony, where probation officer indicated that there was lack of evidence regarding said shooting; and (2) Dist. Ct. based instant enhanced sentence in large part on belief that defendant had participated in said shooting.

Dist. Ct. did not err in denying without conducting evidentiary hearing defendant’s motion to suppress seizure of drugs that took place following traffic stop. Defendant argued that police lacked probable cause to make traffic stop, and record did not support officer’s claim that defendant was stopped for driving without license, where defendant was riding motorized bicycle. However, record did support traffic stop on charge of running stop sign, where video from officer’s video camera indicated that defendant had rolled past stop sign, and, where Dist. Ct. made finding from video that defendant never came to stop at intersection. As such, Dist. Ct. was not required to hold evidentiary hearing, where video captured traffic violation.

Dist. Ct. did not err in denying defendant’s section 2241 petition seeking to set aside his money laundering conviction on ground that both his indictment and jury instructions in his 2000 trial allowed jury to convict him based on definition of “proceeds” that included gross proceeds on unlawful activity, as opposed to net profits of said activity. Instant petition was filed eight years after Supreme Court plurality decision in Santos, 553 U.S. 507, which held that definition of “proceeds” in money laundering statute pertained only to net profits of unlawful activity. Defendant, though, was unable to show that fundamental miscarriage of justice had occurred, where: (1) it was unclear whether wire transfer at issue in his conviction exclusively drew on gross profits to pay for business expense or if it represented net profits that defendant was using for concealment purposes; and (2) case law is unclear in post-Santos cases as to how gross proceeds/net profit distinction applied in concealment cases. As such, defendant could not show that any error seriously affected fairness or integrity of his money laundering conviction.