Criminal Law

In prosecution on unlawful possession of firearm charge, Dist. Ct. erred in denying defendant’s motion for mistrial based on claim that govt. violated its Rule 16 obligation to turn over complete copy of continuity slip used to track firearm’s chain of custody. Copy of incomplete continuity form that had been given to defendant prior to trial formed central part of defendant’s defense, and defendant was entitled to copy of complete and correct form once govt. had produced incomplete form during discovery. Moreover, defendant established prejudice since production of complete form: (1) would have given defendant notice that his chain of custody defense was without merit; and (2) would have given defendant ability to seek out viable guilty plea options. Ct. rejected govt. claim that it was not required to tender complete form in absence of knowledge that said form would play role in defendant’s defense.

Dist. Ct. erred in entering discovery order requiring govt. to provide prosecutorial practices and statistics with respect to racial backgrounds of other defendants charged with similar crimes involving additional schemes to rob purported phony sting stash houses, since said order violated Armstrong, 517 US 456, in absence of evidence that prosecutor failed to prosecute defendants of other races, who had arguably committed similar crimes. Moreover, result is same even though defendants presented evidence that 75 of 94 defendants in 20 similar cases were African-American. However, on remand, Dist. Ct. should receive evidence as to whether any ATF officials used race when targeting potential victims of sting operations, since said agents are not covered by notions of prosecutorial discretion at issue in Armstrong. (Dissent filed.)

Dist. Ct. did not err in sentencing defendant to 2 years’ probation, with 500 hours of community service, in addition to requiring defendant to pay restitution of $5,594,877 and $53.6 million civil penalty on charge of tax evasion, even though govt. insisted that defendant serve some incarceration time. While applicable Sentencing Guideline recommended 46-to-56-month term of incarceration, there was no requirement that defendant serve any prison time for his offense, and govt. had already recommended below-Guideline sentence of one year and one day. Moreover, Dist. Ct. adequately explained why probation, as opposed to term of incarceration, was appropriate given defendant’s record of charity and benevolence, and given imposition of large civil fine that was roughly ten times size of tax loss.

Dist. Ct. did not err in denying defendant’s motion to dismiss his indictment on charge on contempt of court following defendant’s nine-year absence on prior drug and firearm charges, even though defendant argued that instant indictment was motivated by prosecutorial vindictiveness arising out of fact that defendant had prevailed on motion to suppress that had been filed in prior drug and firearms case. Record showed lack of vindictiveness on part of prosecutor, where prosecutor agreed with suppression motion, and where instant contempt indictment arose from conduct that was different from conduct supporting drug and firearms charges. Defendant also failed to present any evidence of actual vindictiveness, and fact that contempt charge was filed on day drug and firearms charges were dismissed did not require different result.

Dist. Ct. did not err in sentencing defendant to 184-month term of incarceration on bank fraud and aggravated identity theft charges arising out of scheme to steal personal information for use in creating counterfeit driver’s licenses and checks that resulted in $770,000 in losses to banks and individuals. Dist. Ct. could properly give defendant longer sentence than one of his co-defendants, where defendant recruited more individuals to assist in instant scheme, and where co-defendant agreed to cooperate with govt. Moreover, Dist. Ct. could properly apply enhancement under section 2B1.1(b)(2)(B) based on finding that there were at least 50 victims arising out of defendant’s scheme, even though all but nine of said victims had been reimbursed for their losses. Ct. could also impose four-level enhancement based on defendant’s role as organizer, even though co-defendant also supervised certain individuals in scheme, since there can be more than one individual who acted as leader or organizer.

Dist. Ct. did not err in failing to dismiss defendant’s indictment alleging drug conspiracy and attempt to distribute more than five kilograms of cocaine arising out of two fictional drug transactions arranged by govt., even though defendant argued that govt.’s conduct in generating said fictional drug transactions violated his right to due process by coercing him to engage in illegal activity. Under Seventh Circuit precedent, there is no “outrageous government conduct” defense to defendant’s participation in fictional drug transaction, and record otherwise showed that defendant sought out and fully participated in plan to rob drug stash house that formed basis of instant indictment.