Criminal Law

Dist. Ct. did not err in denying defendant’s section 2241 habeas petition that challenged his conviction on charge of aiding and abetting his confederate’s use of firearm during bank robbery. While defendant contended that he lacked advance knowledge that his confederate would pull gun on bank teller, and that his confederate had duped him into participating in bank robbery, Dist. Ct. could properly find that jury would not have doubted that defendant knew beforehand that confederate would use gun in bank robbery, where: (1) actions of both defendant and confederate were coordinated, with defendant distracting one bank teller while confederate pulled gun on other nearby teller; and (2) defendant took advantage of both tellers' shock at seeing gun by invading their workspace and directing one teller to hand money over to him.

Dist. Ct. did not err in sentencing defendant to 18-month term of incarceration on charge of parental kidnapping of defendant's children, where Dist. Ct. based said sentence in part on finding that defendant had substantially interfered with administration of justice arising out of finding that defendant’s conduct caused unnecessary expenditure of substantial governmental or court resources. Record showed that costs expended by govt. were not trivial, since it was required to pay $4,600 to return defendant to U.S. after defendant was apprehended in Turkey. Moreover, several federal agencies worked several days around clock to obtain defendant’s seizure and return of defendant and his children to U.S. Fact that govt. did not submit report outlining its total costs incurred as result of defendant absconding with his children did not require different result.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his guilty plea to charge of sexual abuse of his minor daughter under 28 USC section 2243(a)(1), as well as his 96-month term of incarceration, even though defendant argued that his trial counsel was ineffective for advising him that he met statutory elements of said offense and for not explaining that his prior bad conduct could be considered at sentencing. Defendant’s admitted facts in revised plea agreement indicating that defendant attempted to rape his daughter by placing his penis in her anus, which were sufficient to support conviction for sexual abuse of minor. Moreover, Dist. Ct. could properly credit defendant’s trial counsel who indicated that he advised defendant that his prior assaults would be disclosed in presentence report, and defendant was otherwise told five times during his plea hearing that he could receive up to 15 years’ imprisonment, even though his counsel had estimated applicable sentencing range was 37 to 46 months’ incarceration.

Dist. Ct. imposed as one condition of supervised release prohibition on defendant’s “excessive use of alcohol,” which was defined as including “any use of alcohol that adversely affects defendant’s employment, relationships or ability to comply with conditions of supervision.” While defendant argued that said definition was impermissibly vague, Ct. of Appeals generally affirmed said condition, but substituted term “materially adversely affects” for “adversely affects” in original definition, since original definition raised concerns about fair notice to defendant, as well as arbitrary enforcement on alcohol-related conditions of supervised release.

In prosecution on charges of producing child pornography counts that arose after police searched defendant’s apartment during drug investigation and discovered half-naked and initially non-cooperative 16-year old girl hiding under bed, as well as electronic devices, Dist. Ct. did not err in denying defendant’s motion to suppress evidence of child pornography found in electronic devices, even though defendant argued that warrant issued by state court to search defendant’s apartment lacked probable cause. Officer who submitted affidavit credibly reported that he had overseen two controlled drug buys from defendant’s apartment and each controlled buy involved search of informant prior to purchases to establish that drugs produced by informant after purchases came from defendant’s apartment. Ct. rejected defendant’s argument that informant had drugs on his person prior to controlled buy and produced said drugs after informant pretended to buy drugs from defendant. Also, officers could access content of devices during search of apartment, since: (1) warrant allowed officers to seize said devices, and thus implicitly allowed them to search them as well; and (2) exigent-circumstances doctrine applied to allow police to search devices to obtain information about half-naked child. Moreover, independent source doctrine applied to permit admission of child pornography found in devices, where officials obtained federal warrant to search devices.

In prosecution on charge of unlawful possession of firearm by felon, Dist. Ct. did not err in sentencing defendant to 84-month term of incarceration based in part on Guideline note indicating that upward departure from defendant’s guideline range may be appropriate to account for defendant’s two prior burglary convictions that technically were no longer considered to be crimes of violence. While defendant argued that Dist. Ct. committed procedural error by finding that his prior burglary convictions involved violence, record showed that Dist. Ct. actually made no such finding and did not adjust sentence on that basis. Moreover, Dist. Ct. could properly note that: (1) defendant’s calculated offense level did not adequately capture concerns raised by person with two prior burglary convictions carrying firearm in instant offense, and (2) defendant tested positive for drugs shortly after his release from prison. As such, at most, Dist. Ct. adjusted defendant’s sentence within applicable guideline range, which it was free to do.

In prosecution on drug-trafficking crimes, Dist. Ct. did not err in denying defendant’s motion to suppress evidence seized from detached garage of defendant’s home, even though defendant argued that his wife did not have authority to give consent to police to search said garage. Officers could properly believe that defendant’s wife had apparent authority to give officers consent to search garage where: (1) spouse presumptively has authority to consent to search of all areas of homestead; (2) wife told officers that she had been married to defendant for 21 years and had lived with defendant at current residence for ten years; and (3) no one told officers at time of search that wife was denied access to garage. Ct. rejected defendant’s contention that officers could not reasonably believe that wife had authority to consent to said search where wife did not have key to garage and had told officers that she had not been in garage for 1.5 months. Also, Dist. Ct. did not err in finding that defendant was responsible for 18.04 kilograms of cocaine, where said amount was derived from information in presentence report, as well as testimony from individual regarding his actual sales of cocaine.

Dist. Ct. did not err in dismissing defendant’s habeas petition that challenged his murder conviction, after finding that defendant procedurally defaulted his claim that trial court deprived him of his right to choose his trial counsel, where: (1) defendant failed to raise said issue at any stage of his direct appeal; (2) although defendant raised issue in his pro se post-conviction petition, appointed counsel failed to raise issue in amended petition; (3) defendant’s new counsel unsuccessfully attempted to raise issue in supplemental post-conviction petition; and (4) state appellate court found no abuse of discretion in trial court’s denial of request to file supplemental post-conviction petition. Defendant procedurally defaulted claim, since Illinois treats claims that were originally raised in pro se post-conviction petition, but not raised in amended petition as having not been raised before court, and although defendant contended that state courts erroneously denied him leave to raise issue in supplemental post-conviction petition, defendant’s argument could not avoid instant procedural default. Moreover, defendant cannot claim ineffective assistance of post-conviction counsel to excuse instant procedural default, since defendant has no constitutional right to post-conviction counsel.