Criminal Law

Defendant was entitled to new consideration on his motion for compassionate release under 18 USC section 3852(c)(1)(A) based on his prostate cancer diagnosis and COVID-19 pandemic under circumstances where defendant had served approximately one-third of his 40-year sentence on firearm, robbery and drug offenses  that were committed while he was Chicago police officer. While Dist. Ct. found that defendant had not established that his circumstances qualified as extraordinary and compelling reasons to support instant request or that sentencing factors under section 3553(a) weighed in support of early release since defendant had served only one-third of his sentence, Ct. of Appeals held that: (1) Dist. Ct. should not have relied on language in section 1B1.3 of USSG and its Application Note 1 to find that defendant had not established requisite extraordinary circumstances, where: (1) under Gunn, 980 F.3d 1178, section 1B1.3 and its Application Note 1 did not apply to prisoner-generated requests for compassionate release; and (2) under First Step Act, it is clear that defendant could have had only 20-year sentence for his convictions if he had been sentenced at time of instant request. As such, remand was required because Dist. Ct. did not consider impact of First Step Act and did not recognize full extent of its discretion to grant defendant relief. (Dissent filed.)

In prosecution on drug distribution and firearm possession charges, Dist. Ct. did not err in denying defendant's motion to suppress drugs and firearm seized from defendant's home pursuant to search warrant, even though defendant sought Franks hearing on allegations that officer seeking said warrant misidentified defendant's home as place to be searched and omitted details about criminal histories of confidential informants. Record showed that officer provided live testimony in front of issuing judge to support application for warrant, and Dist. Ct. could properly find existence of probable cause in spite of lack of information regarding informant's criminal histories, where officer provided information about four controlled purchases of drugs from defendant that were orchestrated and watched by police. Moreover, issuing judge could have probed criminal histories of informants had he thought it was necessary. Also, defendant failed to make requisite showing that officer either perjured himself or acted recklessly because he had serious doubt about truth of his testimony. Too, although there was discrepancy as to address of defendant's home, issuing judge asked clarifying questions about intended location of drug transaction at issue in controlled purchase.

Dist. Ct. did not err in denying defendants' motion to suppress drugs and firearm found in defendants' vehicle after officer came up to defendants on side of road, where defendants' vehicle appeared to be stuck in snow. Record showed that: (1) officer had reason to suspect that driver had committed traffic violation; (2) officer thereafter searched defendants' license and criminal histories and learned that both defendants were currently under court-ordered supervision for drug convictions; (3) officer asked for and received permission to perform pat-down search of both defendants; (4) officer uncovered counterfeit-detecting pen light, set of keys, gun safe with small plastic bag sticking out of corner that was found under shirt of one defendant, as well as small knife concealed in bra of same defendant; (5) officer thereafter looked in vehicle and saw razor-blade stuck in piece of cardboard and small plastic bottle that officer believed incorrectly had contained drugs. As such, officer had reasonable suspicion to justify initial stop and questioning, and after consensual pat-down search and examination of car, had probable cause to open gun safe that contained drugs. Moreover, under Wisc. Statute, officer was allowed to search defendants' property due to defendants' status as individuals on court-ordered supervision, where he had reasonable suspicion that defendants had committed violation of criminal statute or condition of supervised release. Also, Dist. Ct. did not err in failing to admit co-defendant's statement indicating that she owned drugs and weapon found in other defendant's vehicle, where Dist. Ct. had reason to question trustworthiness of said statement, since c0-defendant had previously denied ownership of gun safe or its contents, and then later took responsibility for drugs, but not weapon.

Dist. Ct. did not err in denying defendant's habeas petition that challenged his murder conviction on ground that record did not support jury's guilty verdict, under circumstances where record lacked physical evidence that linked defendant to murder, and where record contained inconsistencies in testimonies of three individuals, who initially identified defendant as shooter, but eventually recanted said identifications. Dist. Ct. could properly find under applicable double-layered deference required by section 2254(d) that state court's decision which upheld defendant's conviction was not unreasonable. Moreover, although defendant presented several examples of inconsistencies in testimonies of said witnesses, defendant failed to establish that state-court's evaluation of sufficiency of evidence issue was objectively unreasonable. Too, Dist. Ct. in resolving instant habeas claim did not have license to re-determine credibility of witnesses at defendant's trial, which was within jury's domain. Also, identified inconsistencies in testimonies were not so serious so as to compel finding that state court unreasonably concluded that jury's verdict did not fail for lack of sufficiency of evidence.

Dist. Ct. did not err in dismissing on timeliness grounds, defendant's habeas petition that challenged his healthcare fraud conviction on ground that his trial counsel was ineffective for failing to advise him of any immigration consequences to his guilty plea to said charge, where, following his release from federal prison on instant charge, defendant was transferred to custody of U.S. Immigration and Customs Enforcement, where defendant learned from his immigration attorney that terms of his plea agreement subjected him to mandatory deportation. Defendant filed instant petition several months after relevant one-year period for filing habeas petitions, and defendant was not entitled to equitable tolling of limitations period, where he failed to establish extraordinary circumstances to excuse his untimely filing. Fact that his trial counsel gave erroneous legal advice about his deportability both before and after his sentencing, that his counsel erroneously told him after sentencing that he could not challenge instant final judgment, or that he had inadequate prison law library did not require different result. Ct. further observed that defendant was clearly advised in plea agreement that no one, including his attorney or Dist. Ct., could predict with certainty effect of his conviction on his immigration status, and that he was reminded that he wanted to plead guilty regardless of any immigration consequence.

In prosecution on wire fraud and bribery counts arising out of defendant's receipt of no-bid contracts from Mayor to build city hall, senior living facility and park district building after defendant had given bribes to Mayor, Dist. Ct. did not err in admitting evidence of Mayor's solicitation of bribes from two other individuals, neither of whom were on trial. While defendant argued that Mayor's scheme to extort money from contractors engaged in business with city was irrelevant to issue of whether defendant had bribed Mayor, said evidence was relevant to proving charged scheme to defraud city of money, property and intangible right to Mayor's honest services. Also, record contained sufficient evidence to support defendant's convictions, where jury was free to accept Mayor's testimony regarding defendant's bribes to him through use of shell business entity, even though Mayor was impeached at trial regarding previous lies that he told under oath. Also, defendant's 41-month sentence was not substantively unreasonable, where: (1) sentence was at bottom of applicable guideline range; and (2) defendant failed to identify any unwarranted disparity between his sentence and sentences that other defendants had received.