Criminal Law

Perrone v. U.S.

Federal 7th Circuit Court
Perrone v. U.S.
Criminal Court
Sentencing
Citation
Case Number: 
No. 16-2437
Decision Date: 
May 14, 2018
Federal District: 
S.D. Ill.
Holding: 
Affirmed

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his 240-month term of incarceration on drug distribution charge, where: (1) said sentence was based, in part, on statutory sentencing enhancement that applied when death of victim resulted in ingestion of drugs distributed by defendant; (2) on day before sentencing on said charge, Seventh Circuit, in Hatfield, 591 F.3d 945, found that instant “death results” enhancement required govt. to prove that ingestion of defendant's drugs was “but-for” cause of death; (3) he would not have pleaded guilty to said charge or admitted that drugs he sold victim was “but-for” cause of victim’s death because he was “innocent“ of said enhancement under Hatfield standard; and (4) his counsel was ineffective for failing to address causation issue in light of Hatfield. Defendant’s assistance of counsel claim was untimely, since habeas petition was filed beyond applicable one-year period for doing so. Moreover, while death causation issue was timely filed, because habeas petition was filed within one year of Supreme Ct. decision in Burrage, 134 S.Ct. 881, which essentially mirrored Hatfield decision on death causation issue, record showed that defendant’s cocaine was but-for cause of victim’s death, where: (1) defendant admitted to distributing 7.5 grams of cocaine to victim in deliberate attempt to kill her; (2) defendant personally injected 7.5 grams of cocaine in effort to kill victim; and (3) victim died immediately after he injected her with said lethal dose of cocaine.

U.S. v. Key

Federal 7th Circuit Court
U.S. v. Key
Criminal Court
Search and Seizure
Citation
Case Number: 
No. 16-3970
Decision Date: 
May 14, 2018
Federal District: 
N.D. Ill., E. Div.
Holding: 
Affirmed

In prosecution on charge of taking minor across state line with intent that minor engage in prostitution, Dist. Ct. did not err in denying defendant’s motion to suppress evidence seized from defendant’s motel room. At time of seizure, police officers had received tip from mother of 15-year-old victim that victim was in out-of-state motel that was known to officers as having reputation for prostitution and drug problems, and that victim had called wanting to come home. Moreover, although officers’ lacked warrant to conduct search of motel room, defendant had given officers consent to search room for victim, and during said search, officers found in plain view laptop open to backpage.com website, which officers knew to be commonly used to post prostitution advertisements, as well as prepaid credit cards, used and unused condoms and multiple cell-phones that were typically used for prostitution. As such, warrant was not necessary, where officers could seize said materials in their plain view, where incriminating nature of said materials was immediately apparent. Also, Dist. Ct. did not err in giving instruction that informed jury that victim’s consent to being transported for purpose of prostitution was irrelevant, since said instruction was accurate statement of law, so long as defendant intended for victim to engage in prostitution when he transported her across state border.

People v. Williams

People v. Williams
Illinois Appellate Court
Criminal Court
Murder
Citation
Case Number: 
2018 IL App (1st) 151373
Decision Date: 
Friday, May 11, 2018
District: 
1st Dist.
Division/County: 
Cook Co., 6th Div.
Holding: 
Vacated and remanded with directions.
Justice: 
CUNNINGHAM

Defendant was convicted of 2 counts of 1st degree murder based on theory of accountability and sentenced to mandatory natural life in prison without possibility of parole. Defendant was 19 and a member of a street gang at time of offense.Growing body of scientific evidenced that the young adult brain, at age 19, is still developing, rendering young adults more similar to juveniles than mature adults. Defendant received the same sentence as the shooter, who was age 17 at time of offense and who received new sentencing hearing after issuance of U.S. Supreme Court's 2012 decision in Miller v. Alabama. Defendant's sentence violates proprtionate penalties clause of Illinois Constitution as applied to him. Remanded for new sentencing hearing. (CONNORS and DELORT, concurring.)

Your Guide to Your Rights If Arrested

Your rights if arrested

If you are arrested, it is important that you know and assert your constitutional rights. An informed and alert citizenry is the best guarantee that these rights will be upheld for the benefit of all persons at all times.

The basic rights of a citizen under arrest are stated in the Fifth, Sixth, and Eighth Amendments of the "Bill of Rights" of the United States Constitution.

  • "No person…shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law...." (Fifth Amendment).
  • "In all criminal prosecutions, the ac-cused shall enjoy the right to a speedy and public trial, by an impartial jury…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." (Sixth Amendment).
  • "Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted." (Eighth Amendment).

Since the adoption of the Fourteenth Amendment to the Constitution, the states have also had to guarantee these rights. This amendment provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States…."

Many of the provisions found in the "Bill of Rights" of the U.S. Constitution also appear in the "Bill of Rights" of the Illinois Constitution. The following discussion is based upon both constitutions and upon other laws governing the citizens of this state.

Who can make an arrest

Any law enforcement officer such as a police officer, sheriff, deputy sheriff, or state trooper can make an arrest. The arrest may be made with or without a warrant, depending on the circumstances.

A warrant is an order issued by a judge de-scribing the person to be arrested and the charge(s) against that person. It directs all law enforcement officers to arrest the person named in the complaint.

A law enforcement officer must have a warrant for your arrest unless one of the fol-lowing circumstances exists:

  • The law enforcement officer has grounds to believe that a warrant for your arrest has been issued in this state or in another jurisdiction.
  • You committed or attempted to commit a crime in the presence of the officer.
  • The officer has probable cause to believe both that a crime has been committed and that you are the person who com-mitted it.

Regardless of whether the arrest is made with or without a warrant, the arrested person should be brought before the nearest and most accessible judge in that county without unnecessary delay.

Citizen's arrest

A private citizen may make an arrest under certain circumstances. The law permits a citizen to detain or place under arrest another person when that citizen has probable cause to believe that a criminal offense other than an ordinance violation is being committed. The law does not permit, however, a citizen to detain or arrest another person based on the mere suspicion that a crime is being committed; the citizen must have personal, firsthand knowledge of the commission of the offense. All the person making the arrest has to do is prevent the accused from leaving the area. For example, a person executing a citizen's arrest may take the accused by the arm and say something like, "Stop. I'm holding you for the police."

Do not resist a law enforcement officer who attempts to arrest you—even if you are innocent. The fact that you are innocent will not make the arrest illegal if the officer's actions conform to the requirements of a legal arrest as stated above.

Whether or not the arrest is legal, if you resist arrest, you could be charged with resisting a peace officer, which is a Class A misdemeanor that could result in up to one year in prison and a maximum fine of $2,500. If the arrest is illegal, you are entitled to bring a lawsuit against the law enforcement officer for false arrest.

It is best not to resist a citizen's arrest, although you cannot be prosecuted for re-sisting arrest. You may, however, be charged with assault and battery.

The person making a citizen's arrest cannot be liable for damages for false arrest if he or she had probable cause to believe that a crime had taken place and that you are the person who committed it.

Do not resist a law officer's attempt to search or "frisk" you. It is legal for an arresting officer to search your person and the area in your immediate presence once he or she has arrested you.

Even if he or she does not arrest you, a police officer—upon identifying him or herself—may stop you in any public place if he or she has reasonable suspicion that you have committed, are committing, or are about to commit a crime. The officer may demand your name and address as well as an explanation of your actions. If he or she reasonably suspects that there is a danger of being attacked, he or she may search you for weapons only.

Your rights after arrest

The U.S. Supreme Court has ruled that as soon as you are taken into custody and questioned, you must be informed of the following, commonly known as your Miranda rights:

  1. You have the constitutional right to remain silent.
  2. Anything you say can and will be held against you in a court of law.
  3. You have the right to an attorney; if you cannot afford an attorney, one will be appointed for you.

In addition to advising you of your rights, the arresting authorities must respect your rights. For example, you cannot legally be required or forced by a police officer or any-one else to talk, to answer questions, or to sign any papers. If you are forced to give incriminating information by threats, by per-sistent questioning, or by any other means of coercion, you can prevent its use against you in court.

Within a reasonable time after you have been taken into custody, you have a right to make a reasonable number of telephone calls or otherwise communicate with an attorney of your choice and a member of your family. If you are transferred to a new place of custody, this right of communication is renewed. If you are not a U.S. citizen, you must be informed within 48 hours of booking or detention of your right to contact your local consulate or embassy. Consular officials may visit you, help you arrange for legal representation, and contact your family.

You have a right to an itemized receipt for all money and property taken from your person after you are taken into custody.

You have a right to be "booked" within a reasonable period of time. "Booking" is the entry of a charge against you in a record called the "arrest book" or "police blotter."

Should your detention go beyond a reasonable period of time without booking (more than several hours or perhaps over-night), your attorney may go to a judge and obtain a writ of habeas corpus. This is a court order instructing the police to bring you before the court so that a judge may decide whether you are being held lawfully.

Obtaining release on bail

Bail is the money or other security you deposit with the court as an assurance that you will appear for trial. The court will accept property (real estate) as bail provided certain detailed conditions are fulfilled. You have a right to apply for and post bail as a means of obtaining your release from custody. The court will normally set bail, even with a charge of murder or other serious crimes, except for the following offenses where the proof is evident or the presumption is great that the person is guilty of the crime:

  • offenses that carry a potential sentence of imprisonment for life as a consequence of conviction;
  • felony offenses that carry a mandatory sentence of imprisonment as a consequence of conviction, where the court after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person or persons;
  • stalking or aggravated stalking, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of the alleged victim and denial of bail is necessary to prevent fulfillment of the threat of further incidents of stalking;
  • the unlawful use of weapons when that offense occurred in or within 1,000 feet of a school or in any conveyance owned, leased, or contracted by a school to transport students to or from school or a school-related activity, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person and denial of bail is necessary to prevent fulfillment of that threat; or
  • making a terrorist threat or an attempt to commit the offense of making a terrorist threat, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person and denial of bail is necessary to prevent fulfillment of that threat.

In Illinois, the police may release you on bail if you deposit 10 percent of the amount of bail.

If there is a warrant for your arrest, the amount of bail will be stated on the warrant. Upon being arrested, you have the right to be brought before a judge without unnecessary delay in order to be informed of the charges against you and to have bail set. For minor offenses, you may be released on your own recognizance, or in other words on your promise that you will appear in court on the necessary dates instead of on monetary bail.

Your rights in court

You have a right to a reasonable time to prepare a defense before being tried in Court. Whether or not you declined your right to be represented by counsel during police interrogation, you have the right to be represented by an attorney in all court proceedings. You are entitled to a reasonable time to obtain a lawyer of your own choosing. If you want a lawyer and cannot afford one, the Court must appoint one to defend you.

You are entitled to know the charge against you and to have, without cost, a copy of the formal paper that contains the charge.

You are entitled to plead "not guilty." If you choose do so, you will be tried by an impartial jury unless you specifically waive your right to a jury trial.

You are not required to testify if you do not wish to do so. If you do not testify, neither the judge nor the jury can consider your silence as evidence of guilt. In the eyes of the law, you are innocent unless proven guilty beyond a reasonable doubt by the evidence presented in Court by the prosecution.

If you are not a U.S. citizen, the judge must inform you, before accepting a guilty plea, that a criminal conviction could result in immigration consequences, including immigration detention (custody) and removal (deportation) from the United States.

How you plead and whether you testify are vitally important questions and you should have the advice of a lawyer.

Prepared by the Illinois State Bar Association's Criminal Justice Section (2017)

People v. Berrios

People v. Berrios
Illinois Appellate Court
Criminal Court
Hearsay
Citation
Case Number: 
2018 IL App (2d) 150824
Decision Date: 
Friday, April 20, 2018
District: 
2d Dist.
Division/County: 
Kane Co.
Holding: 
Affirmed.
Justice: 
HUTCHINSON

Section 25-5(a)(3) of Criminal Code makes it a misdemeanor offense for a person to have contact with street gang members after having been ordered by a judge in any non-criminal proceeding to refrain from direct or indirect contact with a streetgang member. Defendant was convicted, after bench trial, of violating this statute. Trial court had previously entered default judgment and injunction against Defendant in a civil proceeding filed by State under Illinois Streetgang Terrorism Omnibus Prevention Act. Sufficient evidence supported Defendant's conviction. No plain error in admission of testimony of police investigator as expert on street gangs. Gang information sheets were a reasonable basis for his expert opinions. Defendant failed to establish that Section 25-5(a)(3) violates the first amendment.(HUDSON and SCHOSTOK, concurring.)

Tucker v. U.S.

Federal 7th Circuit Court
Tucker v. U.S.
Criminal Court
Ineffective Assistance of Counsel
Citation
Case Number: 
No. 16-4182
Decision Date: 
May 10, 2018
Federal District: 
E.D. Wisc.
Holding: 
Affirmed

Dist. Ct. did not err in denying defendant’s habeas petition challenging his 40-year sentence on charge of drug distribution, where: (1) defendant’s counsel stipulated with govt. to omit all evidence of purchaser’s death during trial and to allow Dist. Ct. to determine at any sentencing hearing whether ingestion of drugs sold by defendant caused purchaser’s death; and (2) said sentence was imposed after Dist. Ct. found under section 2D1.1(a)(2) of USSG that drug distributed by defendant caused death of individual purchasing drug. While defendant asserted that his trial counsel was ineffective for entering into said stipulation, since court in Lawless, 818 F.3d 281, subsequently found that section 2D1.1(a)(2) can apply only when resulting death of purchaser was element of crime of conviction that was proved beyond reasonable doubt or admitted by defendant, Ct. of Appeals found that counsel was not ineffective, where: (1) counsel could not anticipate subsequent decision in Lawlor; and (2) counsel’s stipulation with govt. to remove from jury factual question of whether death resulted from drug distribution was reasonable calculation that defendant was more likely to achieve acquittal on drug charge if such evidence was not before jury.

People v. Norwood

People v. Norwood
Illinois Appellate Court
Criminal Court
Armed Violence
Citation
Case Number: 
2018 IL App (4th) 150883
Decision Date: 
Wednesday, May 9, 2018
District: 
4th Dist.
Division/County: 
Macon Co.
Holding: 
Affirmed as modified.
Justice: 
TURNER

Defendant was convicted, after bench trial, of 2 counts of armed violence. Police were executing a search warrant on Defendant's home. A defendant must be personally armed or have immediate access to or timely control over a weapon to be proven guilty of offense of armed violence. State established beyond a reasonable doubt that rifle was immediately accessible to Defendant during the period between officers entering the home and opening the bedroom door. (KNECHT and DeARMOND, concurring.)

People v. McClinton

People v. McClinton
Illinois Appellate Court
Criminal Court
Weapons
Citation
Case Number: 
2018 IL App (3d) 160648
Decision Date: 
Thursday, May 10, 2018
District: 
3d Dist.
Division/County: 
Will Co.
Holding: 
Vacated and remanded.
Justice: 
McDADE

Defendant was convicted of aggravated unlawful use of a weapon (AUUW), and appellate court reversed that conviction because statute under which she was prosecuted was declared unconstitutional by Illinois Supreme Court. Trial court abused its discretion in denying Defendant's petition for certificate of innocence. Defendant met the elements of section 2-702(d) and (g), as to requirements for certificate of innocence. Defendant's acts charged in indictment did not constitute a felony or misdemeanor against the state because charge was based on the statute later held unconstitutional. Defendant did not intentionally cause or bring about her conviction, because the AUUW statute is void ab  initio, and thus her actions were not criminal at the time. (CARTER and SCHMIDT, concurring.)

People v. Robinson

People v. Robinson
Illinois Appellate Court
Criminal Court
Murder
Citation
Case Number: 
2018 IL App (1st) 153319
Decision Date: 
Tuesday, May 8, 2018
District: 
1st Dist.
Division/County: 
Cook Co., 2d Div,
Holding: 
Affirmed.
Justice: 
HYMAN

Defendant was convicted, after jury trial, of several counts of attempted 1st degree murder. Any weakness in testimony of state ballistics expert, as to her expert opinion linking several cartridge casings found along route to handgun found near Defendant, could have been brought out on cross-examination, and goes to weight of evidence, not its admissibility. Defendant was properly sentenced as a habitual criminal, based on his prior 2 convictions for armed robbery from 1992 and 1996 as qualifying convictions. No evidence that legislature wanted to remove armed robbery from list of possible qualifying convictions for a habitual criminal.(PUCINSKI and MASON, concurring.)

U.S. v. Jones

Federal 7th Circuit Court
U.S. v. Jones
Criminal Court
Evidence
Citation
Case Number: 
No. 17-2818
Decision Date: 
May 9, 2018
Federal District: 
E.D. Wisc.
Holding: 
Affirmed

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not abuse its discretion in granting govt.’s motion in limine seeking to preclude defendant from cross-examining police officer in regard to officer’s testimony in unrelated case, which resulted in finding by magistrate judge that said officer was unable to identify culprit as he had claimed. Dist. Ct. could properly find that evidence regarding officer’s prior testimony was irrelevant and would have been confusing to jury, since magistrate judge in prior case never found that officer had lied or was untruthful when giving prior testimony. As such, exclusion of such evidence did not implicate Confrontation Clause. Also, prosecutor did not improperly vouch for credibility of said officer during closing arguments, even though prosecutor stated that officer’s “currency is [his] credibility,” and that “I think it strains credulity and common sense” to not believe said officer. Nothing prosecutor said brought in outside evidence or spoke to her personal belief in truthfulness of officer. Moreover, prosecutor may properly invite jury to use common sense in drawing conclusion that officer was credible.