In prosecution on bank robbery charges, Dist. Ct. did not err in denying defendant’s attempt to cross-examine govt. fingerprint expert, who stated that defendant’s prints were found on demand notes, with fact that same ACE-V method used by expert to identify defendant as culprit misidentified different defendant as culprit in 2004 case. Similar Confrontation Clause argument was rejected in Rivas, 831 F.3d 931, and fact that instant expert worked in same division that misidentified individual in 2004 case did not require different result. Ct. further noted that defendant had ample opportunity to supply jury with evidence about reliability of ACE-V method without going into 2004 case, and that certain changes in ACE-V method have bolstered its accuracy.
Dist. Ct. erred in sentencing defendant to 20-month term of incarceration on violation of term of defendant’s supervised release. Dist. Ct. originally announced that defendant would receive 18-month term of incarceration, but then increased sentence to 20 months, after learning from probation officer that 18-month sentence might not allow sufficient time for defendant to complete residential drug treatment program. As such, remand was required because instant sentence violated Tapia, 564 U.S. 319, where Court found that sentencing courts could not impose or lengthen sentence to promote offender’s rehabilitation. Ct. rejected govt. argument that defendant invited instant error by advocating for term of imprisonment that was long enough to complete prison treatment program.
Dist. Ct. did not err in sentencing defendant to 188-month term of incarceration on drug distribution and firearms charges, where said sentence was based, in part, on finding that defendant qualified for career-offender enhancement under section 4B1.1 of USSG, due to fact that his two prior Indiana felony convictions qualified as controlled substance offenses. Ct. rejected defendant’s argument that his 2009 Indiana conviction for “Dealing in cocaine or narcotic drug” did not qualify as controlled substance offense because it criminalized more conduct than Guidelines’ definition of controlled substance offense. Moreover, relevant Indiana statute (section 35-48-4-1) is divisible, and that under modified categorical approach, defendant was charged with and ultimately pleaded guilty to knowing possession with intent to deliver controlled substance, which matched Guidelines’ definition of controlled substance offense.
In prosecution on mail and bank fraud counts arising out of defendant’s misrepresentations made to City of Chicago and others to fund defendant’s real estate ventures, Dist. Ct. did not commit plain error in submitting aiding and abetting jury instruction, where instruction implicitly contained requirement that defendant knowingly participated in “criminal activity,” and where jury otherwise did not rely upon aiding and abetting theory of case, since govt. did not advance theory that defendant assisted others to perform criminal acts in furtherance of his scheme, and since govt. repeatedly asserted that defendant was in charge of whole operation. Record also contained sufficient evidence to support bank fraud counts, where: (1) evidence showed that defendant knew that his affidavits of his company’s financial solvency were false given fact that his company had missed several payments on line-of-credit prior to submission of said affidavits; and (2) defendant conceded that his lies would have resulted in City declaring default that would have destroyed his scheme. Also, record supported defendant’s conviction for making false statements to banking institution, where defendant misrepresented that certain asset was available to serve as collateral for loan. Ct. also rejected defendant’s contention that his false promise to abide by agreement at time agreement was entered cannot qualify as false statement for purpose of establishing criminal liability under charge of making false statement to banking institution under 18 USC section 1014.
Prior to trial, Defendant moved to suppress 3 pretrial identifications on the ground that police used unduly suggestive lineup procedures. Court denied motion and, after bench trial, convicted him of armed robbery with a firearm. Although Defendant complained about his counsel's performance, court proceeded without preliminary inquiry into those concerns. The multiple similarities between his prior description (dreadlocks, a dark hoodie, and white gym shoes) and his appearance in the lineup made the lineup strongly suggestive. Defendant was the only one in the lineup that appeared consistent with every feature that the witnesses had provided in their descriptions of the suspect. Remand is appropriate to allow court to evaluate the independence of the witnesses' identifications.Defendant's dialogue with the court was sufficient to trigger a preliminary Krankel inquiry as to ineffective assistance of counsel. (PUCINSKI, concurring; LAVIN, concurring in part and dissenting in part.)
Defendant was charged with 4 counts of aggravated criminal sexual abuse against a 9-year-old girl.Trial judge determined that jury was deadlocked and declared a mistrial. Trial was not long or complicated: 2 days of witness testimony and videotaped statements and 1 defendant; charges arose out of essentially the same operative conduct. Jury emphatically indicated that it had been at impasse for several hours, and collective belief of jurors, after foreperson inquired of them, that it would be futile to continue to deliberate. It was not irrational, irresponsible, or otherwise unreasonable for judge to conclude that jury was unable to reach a verdict and that further deliberations would have been pointless and coercive. Judge was not obligated to give Prim supplemental jury instruction prior to declaring mistrial. Judge did not abuse her discretion in deciding that a mistrial was justified by manifest necessity. Thus, double jeopardy clause did not bar reprosecution. (KARMEIER, THOMAS, KILBRIDE, and GARMAN, concurring; BURKE and NEVILLE, dissenting.)
Defendant, age 16 at time of offense, was convicted of 4 counts of 1st degree murder and was found to have personally discharged a firearm that caused the victim's death; he was sentenced to 50 years. A juvenile defendant's prison term is long enough to be considered de facto life without parole at 40 years. Circuit court failed to consider Defendant's youth and its attendant characteristics in imposing sentence, and thus sentence violates 8th amendment. Remanded for resentencing in accordance with Section 5-4.5-105 of Unified Code of Corrections. (KARMEIER, THOMAS, KILBRIDE, GARMAN, and THEIS, concurring; BURKE, specially concurring.)
In prosecution on charge of felon in possession of firearm, Dist. Ct. did not err in failing to give jury defendant’s proposed “innocent possession” instruction that told jury that it should find defendant not guilty of charged offense if firearm was obtained innocently and momentarily by defendant and held with no illicit purpose. Seventh Circuit has never recognized innocent possession defense outside circumstances in which defendant can establish justification like necessity or duress, and facts of instant case would not support such defense, where defendant acknowledged that he was in presence of police and failed to take steps to turn over nearby firearm that he had previously handled. Also, Dist. Ct. failed to comply with Rule 32.2, where it did not submit forfeiture of defendant’s firearm issue to jury or obtain defendant’s waiver prior to entering forfeiture order. However, said error did not affect defendant’s substantial rights, where record showed clear nexus between firearm and defendant’s conviction.
(Court opinion corrected 4/17/19.) Defendant's conviction for unlawful use or possession of a weapon by a felon (UUWF) was properly enhanced to a Class 2 felony, as State proved that Defendant had a prior conviction, in Michigan, for a forcible felony. Defendant's conviction for "Assault With a Dangerous Weapon" under Section 750.82 of Michigan Penal Code was inherently a forcible felony pursuant to Section 2-8 of the Illinois Criminal Code. (DELORT and CONNORS, concurring.)
Dist. Ct. did not err in sentencing defendant to 25-year term of incarceration, after defendant had pleaded guilty to five counts of wire fraud for his role in selling $179 million in fraudulent loans to investment advisor, even though it sentenced co-defendant to 10-year term of incarceration on single count of money laundering charge. While defendant argued that Dist. Ct. did not consider need to avoid unwarranted sentencing disparities between himself and co-defendant, Dist. Ct. found that defendant was more culpable than co-defendant, and defendant otherwise failed to explain how he was similarly situated to others who had been convicted for fraud or show that said individuals had attempted to flee jurisdiction while on bond as defendant had done. Fact that Dist. Ct. had failed to mention that it had considered all section 3553(a) factors when imposing sentence did not require new sentencing hearing, where Dist. Ct. gave adequate statement of reasons for imposing defendant’s sentence. Also, Dist. Ct. could properly note that defendant demonstrated lack of remorse by planning to become fugitive in Ecuador rather than facing consequences of his conduct in United States. Moreover, defendant failed to establish that instant, below-Guidelines sentence was substantively unreasonable when compared to sentence given to co-defendant, where co-defendant had not engaged in new fraudulent scheme while on bond and had not attempted to flee country.
