Criminal Law

Record contained sufficient evidence to support guilty verdict in bench trial on bank fraud charge arising out of scheme to induce banks to make loan based on false statements contained in loan application. While defendant argued that government failed to prove that bank, which was subject of defendant’s fraudulent scheme, was insured by Federal Deposit Insurance Corp. (FDIC) at time of $345,000 loan application, loan document listed lender as “Washington Mutual Bank, FA, a federal association,” and FDIC certificates and witness testimony indicated that said entity was continuously insured by FDIC at time of mortgage, even though entity had undergone name change. Ct. rejected defendant’s contention that government had presented evidence that established only that instant entity had similar name as FDIC-insured financial entity.

In prosecution on receipt and possession of child pornography charges arising out of search of defendant’s cellphone, under circumstances, where defendant was initially arrested on violation of his parole, and where search of cellphone to recover stored data occurred seven days after officer discovered methamphetamine in defendant’s cellphone during defendant’s arrest on parole violation. Dist. Ct. could properly find that holding in Riley, 573 US 373, which generally precludes warrantless searches of cellphones incident to lawful arrest, did not apply to parolees. Moreover, warrantless, suspicionless search of parolee is reasonable under 4th Amendment given parolee’s reduced privacy expectations (where parolee can be searched based on less than probable cause) versus state’s greater interests in reducing recidivism and promoting reintegration. Ct. rejected defendant’s claim that cellphones were not covered by operative probation agreement.

In prosecution on kidnapping, carjacking and brandishing firearm during and related to crime of violence charges, Dist. Ct. did not err in denying defendant’s Batson challenge to prosecutor’s use of peremptory challenge against African-American prospective juror, even though defendant asserted that prosecutor executed said peremptory challenge on account of juror’s race. Prosecutor explained that he used peremptory challenge because juror appeared to be sleeping during proceedings, and Dist. Ct. found that said race-neutral explanation was plausible, and that prosecutor was credible. Dist. Ct.’s credibility findings were owed great deference, and Dist. Ct.’s findings were not clearly erroneous. Fact that Dist. Ct. did not witness juror sleeping did not require different result. Record also supported Dist. Ct.’s imposition of 388-month term of incarceration, even though defendant challenged finding that he qualified for two enhancements for use of minor in commission of charged offenses and for defendant’s leadership role. Video evidence supported finding that defendant and minor committed charged offenses together, and that defendant had recruited individuals and directed others during crime spree, as well as initiated plan for said crimes.

Dist. Ct. did not err in denying defendant’s section 2241 collateral attack on his 212-month sentence following defendant’s guilty plea on charge of distributing crack cocaine, where Dist. Ct. had previously found that defendant’s prior 2008 Illinois conviction on charge of unlawful conviction for unlawful delivery of cocaine qualified as predicate felony drug offense under 21 USC section 841(b)(1)(C). While defendant contended in his section 2241 petition that subsequent case law disqualified defendant’s 2008 conviction from being predicate felony offense, Ct. of Appeals found that waiver of defendant’s collateral attack rights to challenge either his conviction or sentence contained in plea agreement precluded him from filing instant section 2241 petition that challenged his sentence. Although defendant argued that plea agreement allowed him to challenge his sentence based on any subsequent change in interpretation of law, actual language in plea agreement required that change in interpretation of law pertain only to underlying offense to which defendant had pleaded guilty, and defendant did not allege that change in law pertained to his conviction. As such, waiver language in plea agreement precluded defendant from filing instant collateral attack or from filing any appeal from denial of his section 2241 petition.

Dist. Ct. erred in granting government’s motion to modify defendant’s sentences on unlawful drug distribution and violation of supervised release arising out of prior federal conviction on drug delivery charge, where government claimed that said modifications were permissible as attempts to correct “clerical errors” in prior imposition of said sentences. Record showed that: (1) Dist. Ct. imposed original sentences on said convictions in 2012; (2) in 2013, Dist. Ct. modified said sentences pursuant to Dorsey, 567 U.S. 260, by sentencing defendant to 90 months in federal prison, with 24 months to be served concurrently with existing state sentence and 66 months to be served consecutively to state sentence; (3) government claimed that written 2013 judgments did not conform to orally pronounced sentences, where effect of written sentences meant that defendant received 42 months of concurrent time and only 48 months of consecutive time; (4) Dist. Ct. modified 2013 sentence in 2016, following Amendment 782 to Sentencing Guidelines, but new sentence incorrectly imposed 48-month consecutive sentence; (4) in February of 2021, Dist. Ct., pursuant to joint motion by parties, corrected math errors in 2016 sentence; and (6) in March of 2021, Dist. Ct., over defendant’s objection, granted government’s Rule 36 motion to correct clerical errors between sentences orally announced in 2013 and defendant’s release date in April of 2021, where government argued that sentence should be corrected so that defendant would serve 64 months total after his state sentence. Ct. of Appeals agreed with defendant that government could not use Rule 36 to make any sentence correction, where: (1) said proposed correction was not “clerical” in nature, as required under Rule 36; and (2) while Rule 35 would allow such correction, government’s motion was untimely as it was filed well beyond 14-day limitation period for filing such motion.