Criminal Law

Dist. Ct. did not commit reversible error in sentencing defendant to 240-month term of incarceration on drug conspiracy charge, after Dist. Ct. imposed obstruction of justice and drug-premises enhancements under section 3C1.1 and 2D1.1(b)(12) of USSG. While defendant argued that Dist. Ct. had committed procedural error in failing to make separate and distinct findings regarding said enhancements, any error in calculating defendant’s total offense level with or without instant enhancements was harmless, where Dist. Ct. made it clear that it would have imposed same sentence regardless of its Guidelines calculations. Fact that Dist. Ct. stated during sentencing hearing that it intended to impose below-Guidelines sentence did not require different result, since Dist. Ct. did not tether defendant’s sentence to upward or downward variance from any particular Guidelines range.

Dist. Ct. did not abuse its discretion in admitting evidence that gunshots were fired prior to defendant being detained on charge of unlawful possession of firearm, even though defendant argued that under Rule 404(b), evidence of any other crime, wrong or act is inadmissible to prove person’s character to show that on particular occasion, person acted in accordance with said character. Rule 404(b), though, also permits admission of said evidence if evidence is proffered to prove motive, opportunity, intent, preparation, plan/knowledge, identity, absence of mistake or lack of accident. In instant case, officer testified that police responded to call of shots fired shortly before defendant’s apprehension on charge of unlawful possession of firearm, and said evidence was properly admitted under Rule 404(b), where: (1) officer’s testimony helped to confirm that defendant placed gun-shaped object in dumpster just after shooting and just prior to defendant’s apprehension; and (2) defendant was found within close radius of said dumpster and was caught on video dropping gun-shaped object into said dumpster. Also, Dist. Ct. did not abuse its discretion in accepting juror’s "Yes. Barely." response to question as to whether juror was in agreement with jury’s announced guilty verdict. Ct. of Appeals rejected defendant’s claim that juror gave ambiguous response that required Dist. Ct. to declare mistrial due to lack of jury’s unanimity.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his murder conviction on ground that his trial attorney was ineffective for failing to call or contact several witnesses prior to trial. Record showed that one trial witness stated that she overheard defendant confess to order shooting of murder victim, and defendant presented affidavit from one individual to state that trial witness was lying. However, Illinois Appellate Court, in rejecting defendant’s ineffective assistance of counsel claim, could properly find that none of defendant’s seven affidavits on their own or collectively established any ineffective assistance of counsel, where affidavits were either: (1) deemed to be speculative or concerned only about post-shooting events; (2) concerned information that trial counsel would not have reasonably uncovered prior to trial; and (3) contained inadmissible hearsay. Also, one affiant was out-of-town at time of trial, and, although one affiant contradicted trial witness on claim that defendant was overheard admitting to order shooting of murder victim, defendant failed to establish prejudice where other evidence, including his jailhouse confession, established his guilt. Too, one affiant made statements that conflicted with statements he made in his own sentencing hearing that implicated defendant in instant shooting.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his four-count 1984 murder convictions, even though defendant argued that police allegedly coerced confession to said offenses on night of murders. Record showed that defendant voluntarily testified at co-defendants trial and at defendant’s original sentencing hearing that he alone murdered said four individuals at issue in charged offenses. Thus, even if allegedly coerced confession was improperly admitted at defendant’s second trial, said admission of coerced confession was only cumulative to his other voluntary confessions that were admitted at second trial and did not have substantial and injurious effect on jury’s verdict.

In proceeding to revoke defendant’s supervised release, defendant waived any challenge to Dist. Ct.’s ultimate imposition of additional 5-year term of supervised release, where defendant contended that said term was imposed due to parties’ mutual belief that said term of supervised release was mandatory. While defendant argued on appeal that additional 5-year term of incarceration was not actually mandatory, defendant waived such challenge, where defendant had ample advanced notice in Dist. Ct. of terms of supervised release, but made no objection to instant sentencing range that included instant 5-year minimum supervised release. Also, record showed that defendant’s counsel had affirmatively advanced instant 5-year mandatory-minimum term of supervised release. Additionally, Ct. of Appeals noted that defendant had potential ineffective assistance of counsel argument in any future collateral review petition.

Dist. Ct. did not err in sentencing defendant to below-Guidelines sentence of 188-month imprisonment on transportation of child pornography charge and concurrent 120-month sentence on possession of child pornography charge, even though defendant argued that Dist. Ct. failed to properly identify appropriate Guideline range and failed to consider defendant’s primary argument in mitigation. Record showed that Dist. Ct. actually calculated appropriate Guideline range, and properly did not resolve any claim that defendant deserved third level of acceptance of responsibility credit, since government did not move for Dist. Ct. to award said third credit. Also, Dist. Ct. did not commit plain error in failing to consider defendant’s mitigation arguments in statement he made after Dist. Ct. had announced his sentence, since: (1) defendant was not entitled to second allocation; and (2) fact that Dist. Ct. had allowed defendant to make post-sentencing statement did not trigger obligation to reconsider sentence. Moreover, defendant presented essentially same substance in post-sentence statement that he made in prior allocution.

In prosecution on charge of attempting to entice minor to engage in sexual activity, Dist. Ct. erred in granting defendant’s motion to suppress his confession that he made during interview with law enforcement agents, even though defendant argued that agents had failed to provide Miranda warnings prior to instant interview. While Dist. Ct. concluded that defendant was “in custody” at time of interview that was based, in part, on defendant’s subjective view that he could not leave location of interview, Ct. of Appeals found that defendant was not in custody at time of interview, and thus confession should not have been suppressed, where: (1) none of agents had confronted defendant with evidence of his guilt until after he had confessed to facts supporting charged offense; (2) defendant was stopped on public street and volunteered to give interview at “sting house” located two blocks away; (3) sting house had unlocked door that allowed defendant to leave; (4) defendant never asked agent to stop interview, which otherwise took less than 20 minutes to complete; (5) agents told defendant prior to interview that he was not under arrest; and (6) agents did not use physical restraints, brandish their weapons or flaunt threatening presence. Fact that defendant tendered car keys to agents at start of interview did not require different result.