Criminal Law

Dist. Ct. did not err in imposing as term of supervised release requirement that defendant participate in substance abuse treatment with proviso that defendant pay for such treatment if financially able to do so as directed by U.S. Probation Office. Ct. rejected defendant’s claim that Dist. Ct. improperly delegated to U.S. Probation Office right to determine his ability to pay for such treatment, since Dist. Ct. may assign to probation officer responsibility of gathering information about defendant’s financial status and making initial determination of how much defendant must pay, where, as here, Dist. Ct. is available to review any challenge to probation officer’s determination.

In prosecution on aggravated sexual abuse of minor, transportation of child pornography and certain firearm charges, Dist. Ct. did not err in admitting under Rule 403 testimony from second child victim that defendant had abused him, even though such conduct was not alleged in charged offense. Rule 414(a) allows evidence of uncharged child molestation where defendant is accused of child molestation, and although Rule 414 does not create presumption in favor of admitting propensity evidence, Dist. Ct. properly found that admission of such evidence was not unfairly prejudicial, where second victim’s testimony was mild in comparison to charged conduct. Also, Dist. Ct. did not commit plain error by allowing evidence that defendant had refused to take polygraph examination, where: (1) Seventh Circuit has not adopted blanket rule excluding use of polygraph evidence in federal prosecutions; (2) although defendant’s refusal to submit to polygraph examination cannot be used as incriminating evidence, said evidence could give context to other evidence that defendant had provided police with exculpatory explanations for his conduct prior to his refusal to take polygraph examination; and (3) defendant could not establish that any error in admitting such evidence affected his substantial rights, especially where his refusal to take polygraph examination was mentioned only once by each party, and where evidence of his guilt on charged offenses was overwhelming. (Dissent filed.)

In prosecution on charge of conspiracy to possess counterfeit credit cards and possession of counterfeit credit cards, Dist. Ct. did not err in denying defendant’s motion to suppress search of his rental vehicle that revealed quantity of said credit cards after defendant’s vehicle had been stopped for traffic offense. Record showed that: (1) defendant spoke only Spanish and arresting officer spoke only English; (2) after issuing warning ticket, arresting officer asked defendant in Spanish “may I look for your car,” while believing he was asking defendant if he could search his car; and (3) defendant said “Si” and stood by while arresting officer and other officers searched car and found counterfeit credit cards. While arresting officer lacked probable cause to search defendant’s vehicle, Dist. Ct. could properly find that defendant consented to said search, even though arresting officer did not exactly ask to search defendant’s vehicle, since circumstances indicated that defendant understood that arresting officer was asking permission to search car, where defendant readily agreed to arresting officer’s request to what would otherwise be nonsensical question and stood by while search occurred. Ct. further rejected defendant’s due process argument that he encountered certain difficulties he experienced with court interpreter, where record revealed that defendant was otherwise able to clearly convey his defense to charged offense.

Defendants could properly be charged under 18 USC section 1959(a)(1) for arranging murder of individual located in Mexico in order to reduce competition against Chicago-based criminal organization that created bogus immigration documents. While defendants argued that they could not be charged with instant offense because individual was actually killed in Mexico, and because charged offense proposed extraterritorial application of U.S. law, Ct. of Appeals found that defendants could be charged with said offense, where defendants’ actions were designed to affect commerce in U.S., even though certain important acts took place abroad. Ct. rejected defendants’ argument that instant holding conflicted with decision in Morrison, 561 US 247, which recognized presumption against extraterritorial application of U.S. civil statutes. Ct. further held that two defendants forfeited their argument that their conspiracy to commit murder convictions under 18 USC section 956(a)(1) did not apply to them because they were in Mexico at time murder contract had been issued, since: (1) defendants failed to object to state’s proposed jury instruction that defined “jurisdiction of U.S.” to mean regulatory jurisdiction of U.S.; (2) no Court of Appeals has agreed with defendants’ argument; and (3) defendants’ proposed error did not affect integrity of instant judicial proceedings.