Dist. Ct. did not err in denying defendant’s motion to reduce his sentence under 18 USC section 3582(c)(1)(A) based, in part, on amendment Congress enacted in First Step Act of 2018 to limit circumstances in which multiple sentences for violations of section 924(c) can be stacked. While defendant’s 33-year sentence was product of stacking that occurred prior to enactment of instant amendment, and while amendment would have precluded instant stacking, defendant could not use section 3582(c)(1)(A) to reduce his sentence, since: (1) Congress expressly decided to make instant amendment apply only prospectively; and (2) instant amendment, whether considered alone or in connection with other facts or circumstances, cannot be deemed “extraordinary and compelling” reason to authorize sentencing reduction under section 3582(c)(1)(A).
In prosecution on charges of possessing and distributing child pornography, Dist. Ct. did not err in denying defendant’s motion to suppress images depicting child pornography that was first discovered by Facebook employees using PhotoDNA technology, which were reported to CyberTipLine of the National Center for Missing and Exploited Children (NCMEC), which then reported said images to local law enforcement officials. While defendant argued that Facebook employees were essentially government agents, and that their search for child pornography violated his 4th Amendment rights because said searches were done without warrants, Dist. Ct. could properly find through written declarations from Microsoft and Facebook individuals, as well as live testimony from others, that Facebook employees were not governmental agents, where: (1) Facebook had independent business purpose in keeping its platform safe and free from harmful content; (2) Facebook used PhotoDNA technology to identify potential child exploitation content; (3) Facebook employees did not receive training from NCMEC on use of PhotoDNA technology; and (4) Facebook had no record of receiving formal requests from government for identity of account holders associated with accounts reported to CyberTipLine reports. Dist. Ct. also did not err in quashing defendant’s subpoenas seeking live testimony for hearing on motion to suppress, where Dist. Ct. could properly find that: (1) record before it on suppression issue was sufficiently developed to conclude that Facebook was not governmental actor; and (2) information sought by defendant was cumulative to what was before Dist. Ct.
Dist. Ct. did not err in denying defendant’s habeas petition, alleging that his trial counsel was ineffective for agreeing to supplemental jury instruction on charge of first-degree reckless injury charge, where defendant claimed that said instruction misstated law. Charge arose out of incident in which defendant drove his car over victim while victim was attempting to purchase drugs from defendant. During deliberations, jury asked question as to definition of utter disregard for human life, and court and counsel answered question by stating that definition of utter disregard for human life had already been provided to jury, and that charge required jury to focus on time when defendant had engaged in conduct relating to operating his motor vehicle. Wisconsin Appellate Court rejected defendant’s argument that his counsel was ineffective, after finding that supplemental instruction responded accurately to jury’s question, and defendant failed to provide “clear and convincing” evidence to disturb state appellate court’s conclusion that supplemental instruction responded accurately to jury’s question. Also, defendant did not show that supplemental instruction misstated law, and there was otherwise sound reasons for trial counsel to agree with giving supplemental instruction, where defendant also faced counts of attempted first-degree murder and robbery, and where supplemental instruction removed from jury’s consideration negative inferences from evidence suggesting that victim’s throat was slashed with knife.
(Peters, D-Chicago; Ammons, D-Champaign) creates a limited legal privilege for communications in restorative justice proceedings so that participation in a proceeding is protected and may not be used in any future proceedings unless the privilege is waived by the informed consent of the party or parties covered by the privilege. There are now three restorative justice community courts that Chief Judge Tim Evans has set up for young adults with misdemeanor and nonviolent felony charges in Cook County. It took effect on the Governor's signature yesterday.
In prosecution on drug distribution and maintaining drug-involved premises charges, Dist. Ct. did not err in denying defendant’s motion to suppress 18 months of video evidence from three cameras located on utility poles outside of defendant’s home, even though defendant argued said evidence constituted unlawful warrantless search under 4th Amendment. Dist. Ct. could properly find that instant camera usage over short period of time did not constitute “search” for 4th Amendment purposes, where: (1) defendant knowingly exposed areas outside his home that were captured by instant three cameras; (2) defendant did not have expectation of privacy that society would be willing to accept as reasonable in what happened in front of defendant’s home; and (3) instant videos were generated from traditional cameras, as opposed to devices producing thermal images that attempt to detect conduct occurring inside defendant’s home. However, with respect to images spanning over 18 months, Ct. found that it was closer question as to whether such recordings constituted search under 4th Amendment under “mosaic” theory, which recognizes that whole of defendant’s movements over longer periods of time are not actually exposed to public because there is no likelihood that member of public would have been present over entirety of said period to observe defendant’s movements. Ct., though, found that instant 18-month surveillance by pole cameras was not search under mosaic theory, since cameras only captured movements outside of defendant’s home and did not cover activities away from his home.
Record contained sufficient evidence to support defendant’s conviction on charge of distributing more than 28 grams of crack cocaine, even though defendant argued that evidence showed existence of two separate drug sales with defendant, neither of which totaled 28 grams. Record showed that confidential informant made agreement with defendant to purchase 35 grams of crack cocaine in two installments of 28 grams and 7 grams, and that although first purchase of drugs weighed only 24.92 grams, defendant procured another quantity of drugs involving over 6 grams on same day under circumstance where third party stayed with confidential informant while defendant procured second quantity of drugs. Dist. Ct. properly instructed jury that govt. must prove that defendant knowingly distributed crack cocaine, and that defendant knew that crack cocaine was controlled substance. Defendant conceded both elements on appeal, and jury could properly find that quantity of cocaine base involved in charged offense was over 28 grams, where no one questioned that defendant passed 31 grams to confidential informant on same day. Ct. also rejected defendant’s argument that govt. was required to request lesser included offense instructions, where there was question as to drug quantity that was actually distributed.
Defendant, who had been employed as a teacher's aide and softball coach, was convicted, after bench trial, of grooming, upon charges that he had an inappropriate relationship with a 14-year-old student at the school. Victim's mother had found sexually inappropriate text messages and a photo of Defendant and victim kissing in victim's cell phone. The grooming statute satisfies the rational basis test, as it restricts only unprotected speech and Defendant's right to free speech is not implicated in its enforcement. The statute is not unconstitutional as applied to Defendant, as it does not criminalize innocent behavior. Defendant was not engaged in innocent behavior; his text messages to victim asked her if he could have sex with her and said that he was trying to find out how to block the GPS feature of her pone so her mother could not find her and they could have sex. The fact that he did not follow through with the sex act is irrelevant as to grooming. (MIKVA and HARRIS, concurring.)
Defendant was convicted, after jury trial, of possession of a controlled substance and possession with intent to deliver. Defendant was a passenger in a vehicle being driven by his cousin. Police stopped vehicle after officer saw it travellign 74 mph in a 70 mph zone and saw vehicle's tires cross the dashed lane lines. Officer found that the Wisconsin license of the driver was suspended. Police searched trunk of car and found an urn containing ashes and a bag of cocaine. Court erred in denying Defendant's motion to suppress his verbal statement to officer that the ashes were his father's. There was no evidence or inference that Defendant had knowledge or control of the urn or its contents. Defendant's mere presence in the vehicle could not alone create reasonable belief that defendant was involved in the criminal activity. (JORGENSEN and SCHOSTOK, concurring.)
Defendant was convicted, after jury trial, of attempted murder. Defendant testified that he acted in self-defense, but victim testified that the shooting was unprovoked. Surveillance video admitted into evidence shows Defendant shoot victim in the back of the head from inches away and seconds after victim turned around from a conversation with him. Evidence was sufficient to find Defendant had the specific intent to kill victim when he shot him. Defendant made a challenge to State's use of peremptory strikes during jury selection under U.S. Supreme Court's 1986 Batson v. Kentucky decision. State used all 3 of its peremptory strikes against Black venire members, and race was the sole common characteristic among these 3 persons. Court's decision that Defendant failed to make a prima facie case of racial discrimination was against manifest weight of evidence. (WALKER and PIERCE, concurring.)
Dist. Ct. did not err in denying defendant’s motion for new trial on charges of commodities fraud and “spoofing” that was filed after defendant’s convictions on said charges were affirmed on direct appeal, even though defendant argued that new evidence discovered after his convictions indicated that there were data errors in one summary exhibit presented to jury, and that subsequent indictments against other traders for similar spoofing activities, i.e., placing large and small orders where defendant never intended to execute large orders, undercut government’s characterization of defendant as unique or trading outlier. Any error in data as to percentage of large orders cancelled by defendant was de minimus. Moreover, plaintiff failed to show how limited non-disclosures of accurate data with respect to one of six summary exhibits cast doubt on all six exhibits used by government at trial, or how defendant exercised due diligence to obtain said data, where defendant could have learned of said data prior to trial through use of compulsory process. Also, defendant failed to show likelihood of his acquittal had jury learned of accurate data, where defendant’s own testimony, testimony of his programmer, and testimonies of other traders supported finding that defendant had trading pattern prohibited by charged offenses. Too, Dist. Ct. did not err in denying defendant’s habeas petition, where defendant argued that his trial counsel labored under conflict of interest, where counsel had previously represented entity that provided individuals who testified for government and other individuals who had provided evidence favorable to government. While Court of Appeals agreed that conflict of interest existed with respect to prior representation of entity, defendant failed to show how said conflict adversely affected counsel representation of defendant, or that conflict existed with counsel’s prior representation of other individuals, where: (1) counsel had reasonable strategy to acknowledge and justify defendant’s trading activity; and (2) defendant failed to show that counsel obtained confidential information from representation of clients on unrelated matters that was relevant to instant case.
