Criminal Law

In prosecution on charge of felon in unlawful possession of firearm, Dist. Ct. did not err in denying defendant's motion to suppress search of defendant in liquor store, following anonymous 911 tip asserting that individual wearing black skullcap and black coat with fur had just pulled out large gun and entered said liquor store, which is violation of Illinois law. Record showed that after police were alerted to tip, police observed defendant in liquor store wearing clothing as described in call and found handgun in his coat pocket after conducting pat down search of defendant. While defendant argued that police did not have reasonable suspicion to search him based on anonymous tip, Ct. of Appeals found that instant anonymous tip was reliable, where tipster: (1) asserted eyewitness knowledge of reported event; (2) made report contemporaneously with reported event; and (3) used 911 system to make report. As such, officers could properly make Terry stop to effectuate instant search, where officers had enough information to establish reasonable suspicion that defendant, whose attire matched description of tipster, was violating Illinois law. Ct. rejected defendant’s claim that anonymous tip could not serve as basis for reasonable suspicion to search him.

Dist. Ct. erred in sentencing defendant to 293-month term of incarceration on receipt of child pornography charge, where said sentence was based, in part, on finding that defendant qualified for two-level enhancement under section 2G2.2(b)(3)(F) of USSG for distribution of child pornography. Said enhancement was based solely on fact that defendant had uploaded images of child pornography to folder in his Dropbox account but took no steps to allow any other person to gain access to said folder. As such, no “distribution” occurred for purposes of qualifying for instant enhancement, since there was no evidence indicating existence of transfer of material from defendant to another person.

Dist. Ct. did not err in sentencing defendant to 50-year term of incarceration (arising out of his sexual assault of eight-year old girl that he video livestreamed to other child sexual predators), even though Dist. Ct. imposed said sentence consecutively to 40-year term of incarceration on possession of child pornography conviction that state-court had previously imposed on defendant. While defendant argued that Dist. Ct. should have imposed instant sentence concurrently with his state-court sentence under section 5G1.3(b) of USSG, Ct. of Appeals found no error in imposing instant consecutive sentence, since defendant’s state-court conviction did not qualify as “relevant conduct” for purposes of instant federal conviction, where: (1) conduct at issue in his state-court offense occurred prior to date of instant federal offense and did not concern harm that resulted from his federal conduct; (2) state-court conduct could not be viewed as part of same course of conduct or common scheme at issue in instant federal offense, where both offenses involved different victims, concerned materially different conduct and occurred at different times. Also, defendant’s sentence was not substantively unreasonable, where it was within relevant guideline range and contemplated severity of defendant’s conduct and need to protect victim from defendant.

In prosecution on drug distribution charge arising out of warrantless search of defendant’s vehicle following traffic stop, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of said drugs, even though defendant argued that search of his vehicle violated his 4th Amendment rights, where scope and manner of instant stop was unreasonable, and where his consent to search was not voluntary. Record showed that: (1) officer stopped defendant’s vehicle after observing vehicle cross white line on shoulder of road; (2) while processing warning ticket for traffic violation, officer asked defendant, who was seated in squad car, series of questions about purposes of defendant’s travel and his background; (3) defendant seemed excessively nervous throughout questioning; and (4) after officer handed warning ticket to defendant and after defendant started to leave squad car, officer asked for consent to search defendant’s vehicle and defendant gave said consent. While defendant argued that scope and manner of stop was unreasonable because officer asked him repetitive and persistent questions not tailored to reason for stop, Ct. of Appeals held that officer could ask said questions regardless of whether defendant was in or out of squad car, since said questions did not prolong duration of stop. Ct. further found that defendant’s consent was voluntary, where reasonable person would have felt free to exit squad car without having to consent to search, since defendant had ticket in his hand at time of search request.

Dist. Ct. did not err in accepting defendant’s waiver of conflict-free counsel in trial on wire fraud charges stemming from scheme to induce homeowners facing foreclosure to pay defendant fee under circumstances where defendant falsely told said homeowners that his company would purchase their mortgages and prevent their foreclosures. Defendant, who was unrepresented until eve of trial, told Dist. Ct. that he met his trial counsel at behest of co-defendant’s trial counsel. Dist. Ct. thereafter obtained conflict attorney from Federal Public Defender’s Office to discuss situation with defendant and co-defendant, and conflict attorney advised defendant of potential conflict that could arise, that waiving of conflict-free counsel would preclude him from raising said issue during trial or on appeal, and that there were dangers in choosing his inexperienced counsel. After defendant waived conflict-free counsel and proceeded to trial with said counsel, jury found defendant guilty of wire-fraud charges. While defendant argued that Dist. Ct. should not have accepted his waiver of conflict-free counsel, defendant failed to show that there was actual or potential conflict of interest that seriously undermined counsel’s effectiveness, where, as here, defendant failed to provide any particularized evidence to support assertion that his trial counsel subordinated his efforts in defendant’s defense to those of co-defendant. Also, Dist. Ct. ensured that defendant knew his rights concerning having conflict-free counsel, and defendant nevertheless insisted on going to trial with counsel he selected.

Dist. Ct. did not err in denying defendant’s habeas petition that alleged that his trial counsel was ineffective on two grounds. Said claims, which were included in second post-conviction petition that was denied by Wisconsin state court on procedural grounds, had been filed by defendant after first post-conviction that alleged claim of ineffective assistance of counsel on different ground was denied by Wisconsin state court. Under Wisconsin law, defendant was required to raise all available claims for relief in his first post-conviction petition or on direct appeal, and Wisconsin statute bars successive post-conviction petitions unless defendant could demonstrate sufficient reason for failing to raise his claims earlier, as well as factual showing that his defaulted claims were clearly stronger than claim contained in original post-conviction petition. As such, federal review of claims in defendant’s habeas petition was barred, where Wisconsin court’s denial of defendant’s second post-conviction petition that raised instant claims of ineffective assistance of counsel constituted independent and adequate state-law ground for denial of defendant’s claims on procedural default basis. Moreover, defendant failed to establish cause for and prejudice from instant procedural default, where: (1) defendant did not identify any external impediment that prevented him from including instant claims of ineffective assistance of counsel in his original post-conviction petition; and (2) evidence of defendant’s guilt on underlying charges of attempted homicide was overwhelming so as to prelude finding of prejudice arising out of instant procedural default.

Dist. Ct. did not err in denying defendant’s motion to suppress firearm and ammunition that were seized by parole agents from his home without warrant. Defendant’s status as parolee reduced his privacy expectations, and defendant’s parole agreement allowed parole agents to conduct search based on “reasonable suspicion” as opposed to “probable cause.” Moreover, parole officers had reasonable cause to believe that defendant had recently purchased .40 caliber ammunition and rifle magazine, so as to support instant search of his home. Ct. rejected defendant’s “stalking horse” theory that instant search was subterfuge involving police criminal investigation in effort to avoid 4th Amendment warrant and probable cause requirements. Also, record supported defendant’s convictions on charges of possession of .40 caliber pistol and rifle, where record supported theory that defendant had constructively possessed said firearms due to his proximity to said firearms, as well as his statements and ammunition purchases. Record also supported Dist. Ct.’s sentencing enhancements for possession of multiple firearms, possession of stolen firearm (in spite of defendant’s claim that he was unaware of status of said firearm) and obstruction of justice based on finding that defendant committed perjury on material fact during trial concerning defendant’s possession of firearms.