Criminal Law

Dist. Ct. did not err in sentencing defendant to 264-month term of incarceration on drug conspiracy charge, where said sentence was based, in part, on finding that defendant played supervisory role in said conspiracy. Record showed that defendant transported 276-kilogram shipment of cocaine worth $7 million, and Dist. Ct. could properly infer that, due to size of shipment, defendant had to instruct at least one person to assist him in making said shipment so as to justify instant enhancement under section 3B1.1(b) of USSG. Also, Dist. Ct. could properly impose instant above-Guideline sentence that was 29 months beyond applicable guideline range, where Dist. Ct. held belief that defendant was not telling truth when asserting that instant 276-kilogram shipment was his only involvement in transporting drugs. (Dissent filed.)

Dist. Ct. erred in granting defendant’s habeas petition challenging his aggravated criminal sexual assault conviction on grounds that: (1) blood draw that govt. had obtained from defendant from prior unrelated criminal proceeding was taken without probable cause; and (2) exclusionary rule precluded govt. from using said draw to link him to instant aggravated criminal sexual assault charge. Normally, habeas relief is unavailable to defendants alleging that state court improperly failed to suppress evidence collected in violation of 4^th Amendment. Moreover, no 4^th Amendment violation occurred in instant case where, under inevitable discovery doctrine, govt. would have been able to obtain blood draw from defendant, since Illinois statute (Ill. Rev. Stat., ch. 110A, par. 413(a)(viii)) required that defendant provide blood sample due to his prior conviction. Thus, defendant’s blood sample would have been available to link him to instant charged offense.

Dist. Ct. erred in denying defendant’s motion to vacate his drug conviction under 21 USC sections 841(a)(1), (b)(1)(C), on ground that his trial counsel was ineffective because he advised him to plead guilty to said offense based on claim that defendant had no defense, when, in fact, he had viable defense to said offense. Instant charge alleged that defendant’s distribution of illegal drug caused death to another individual, and record showed that he, victim and another individual pooled money to purchase drugs that caused death of victim when purchased drugs were injected into him. Ct. of Appeals found that defendant had viable defense, where under circumstance of shared purchase, no “distribution” actually occurred as set forth in Swiderski, 548 US 445. On remand, defendant must establish at evidentiary hearing that but for his trial counsel’s advice, he would not have pleaded guilty.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on ground that his trial and appellate counsel were ineffective for failing to seek under Illinois statute substitution of his trial judge on grounds of bias, where trial court had represented defendant as assistant public defender in unrelated criminal matter 15 years prior to instant murder trial. Habeas petition is not appropriate means to challenge state appellate court decision that found, as matter of state law, that defendant had failed to establish that trial court had harbored animosity towards him so as to require trial court’s recusal. Moreover, defendant procedurally defaulted his claim that his trial and appellate counsel were ineffective for failing to raise challenge to trial court based on federal due process grounds, where defendant had failed to assert such claim in his state court proceedings, i.e., his appellate court brief or his petition for leave to appeal to Illinois Supreme Court, prior to seeking instant habeas relief.

Dist. Ct. did not err in denying motion by member of Outlaws Motorcycle Club gang to intervene in govt. action seeking to obtain forfeiture order with respect to Outlaws paraphernalia/clothing that had been seized by FBI following arrests of gang members on RICO and drug trafficking charges. While intervenor claimed that he was entitled to notice with respect to said forfeiture proceeding because he had been elected by gang members to protect and manage all gang paraphernalia, and because said paraphernalia was owned by gang, as opposed to any individual gang member, intervenor failed to establish what property interest gang had in said paraphernalia. Moreover, affidavit supplied by intervenor did not identify origins of paraphernalia or explain gang’s relationship at its inception.