Criminal Law

In prosecution on charge that defendant sent threatening letters to police officials involved in unsuccessful investigation into theft of defendant’s property, Dist. Ct. did not err in admitting evidence of uncharged threatening voicemails and letters that defendant sent to police officials and others, where threats made in said evidence gave background/context to threats made in communications at issue in charged offenses that otherwise would not have made sense. Dist. Ct. also complied with appropriate procedure for admission of said evidence by holding hearing on issue, allowing defendant to register objection, acknowledging necessity of weighing said evidence against prejudice for its admission and giving jury limiting instructions with respect to said evidence. Fact that Dist. Ct. did not make express finding that said evidence was admitted for non-propensity purpose did not require different result. Also, Dist. Ct. did not err in denying defendant’s request in separate assault trial to proceed pro se, where said request occurred during trial, and where request came after incident in which defendant was disruptive in court proceeding. Moreover, Dist. Ct. did not err in denying defendant’s request to leave courtroom during his trial, since defendant has no constitutional right not to attend his own trial.

Dist. Ct. did not err in sentencing defendant to 360-month term of incarceration on charges of possession of firearm and ammunition by felon, after Dist. Ct. found that defendant qualified for sentencing treatment under Armed Career Criminal Act (ACCA) due to two of his prior Indiana convictions for burglary that also qualified as “violent felonies” under ACCA. Indiana burglary offense was sufficiently similar to generic burglary offense as defined in Taylor, 495 U.S. 575, where said offenses occurred within totally confined area. Moreover, defendant failed to present any case in which Indiana court affirmed burglary conviction that penalized acts inconsistent with generic offense of burglary.

Dist. Ct. did not err in granting govt.’s motion for issuance of turnover order concerning $327,000 in defendant’s retirement funds to partially satisfy $940,000 restitution order, even though defendant argued that his retirement funds qualified as “earnings” that were subject to 25 percent garnishment cap under Consumer Credit Protection Act (CCPA). Garnishment cap only protects periodic distributions pursuant to retirement program, and record showed that 48-year-old defendant had right to withdraw entirety of his accounts at will, minus sums needed to pay taxes associated with any early withdrawal. As such, govt. could immediately withdraw entirety of funds because restitution order is treated under 18 USC section 3613(a) as if it were tax lien that would allow govt. to exercise any right to said funds that defendant possessed. Moreover, CCPA did not apply since it is silent as to treatment given to lump-sum distributions of retirement funds, which would not otherwise qualify as “earnings” under CCPA.

In prosecution on mail fraud and money laundering charges stemming from defendants’ scheme to obtain $2.6 million in Dep’t. of Public Health grant funds that had been earmarked to provide for health services, Dist. Ct. did not commit plain error in submitting defendant’s proffered instruction that informed jury that they “should” rather than “must” find defendant not guilty of said offenses if govt. failed to prove any element of charged offenses. Defendant waived issue by proffering instant jury instruction that was accepted by Dist. Ct., and instant jury instruction did not otherwise violate defendant’s 5^th Amendment rights through the use of word “should” rather than “must.” Also, Dist. Ct. did not err in admitting evidence of defendant’s sexual encounters with employee of Dept. and employee of entity that helped to channel money to said defendant, since said evidence demonstrated how defendant was able to carry out his scheme. Record also contained sufficient evidence to support mail fraud and money laundering convictions for second defendant, even though she argued that she was unaware of said scheme and played only minor role, since record showed that said defendant used funds from said scheme to purchase Mercedes-Benz and to assist son with his mortgage, and where govt. presented evidence of specific incidents that revealed that said defendant was aware of broader scheme to divert funds.

Dist. Ct. did not err in imposing instant, below-guidelines 54-month term of incarceration on access device fraud and aggravated identify theft charges, after making correct calculation of sentencing range and then considering sentencing factors under 3553(a). Applicable sentencing range had minimum sentence of 81 months, and Ct. rejected defendant’s claim that instant guideline calculation violated “parsimony principle” set forth in section 3553(a), which instructs Dist. Ct. to impose sentence that was sufficient, but not greater than necessary, because, according to defendant, Dist. Ct. should have been able to reduce $500 minimum loss per access device standard set forth in sentencing guideline and use parsimony principle second time after reduced guideline sentencing range has been calculated. As such, Ct. found that parsimony principle applies only after Dist. Ct. reaches final decision on guideline range under section 3553(a), but does not apply to modify guideline itself.

Dist. Ct. erred in sentencing defendant to 60-month term of incarceration, after finding that defendant had violated four terms of his supervised release, including his failure to participate in either sex offender or mental health treatments, as well as violation of Illinois Sex Offender Registration Act (ISORA) and possession of controlled substance. While applicable guideline for said violations was 21-to-27 months of incarceration, Dist. Ct. provided inadequate explanation for imposing instant sentence, where Dist. Ct. did not: (1) take into account sentencing guidelines policy statements; (2) mention applicable factors under 28 USC sec. 3553(a); or (3) provide detailed justification for instant substantial upward departure, outside of single reference to reasons advanced by Probation Service. Ct., though, rejected defendant’s claim that his counsel was ineffective for failing to argue that ISORA did not require him to register his daughter’s cellphone, which formed basis of instant violation, where defendant had initially admitted that cellphone was his, and where counsel could therefore argue for leniency arising out of said admission.