Criminal Law

Dist. Ct. did not err in denying defendant’s motion to dismiss his indictment on charge of being unlawfully present in U.S. after having been removed, even though defendant argued that his 1998 removal violated his due process rights since said removal was based on stipulated removal order that defendant signed without assistance of counsel or opportunity to appear before IJ. No due process violation occurred where stipulated removal order was drafted in defendant’s native language and contained clear waiver of counsel clause, as well as several acknowledgments that defendant was aware of his rights. Moreover, there is no requirement that defendant/alien be represented by counsel or that stipulated removal order be explained to him. Fact that defendant did not read stipulated removal order prior to signing it did not render removal order involuntary.

In hearing on petition to revoke defendant’s supervised release based on claim that defendant had sold crack cocaine to third-party, Dist. Ct. erred in admitting out-of-court statements of third-party, who provided details of said drug purchase, under circumstances where defendant had no opportunity to cross-examine said third-party. Although said statements qualified as reliable hearsay evidence that potentially could be used at revocation hearing, Dist. Ct. violated Rule 32.1(b)(2)(C) by failing to balance defendant’s constitutional interest in cross-examination with govt.’s reason for not producing third-party at hearing. However, no reversible error occurred where detective, who witnessed certain aspects of drug sale, provided enough facts to establish defendant’s violation of his supervised release.

In prosecution on kidnapping and obstruction of justice charges, Dist. Ct. did not err in admitting victim’s out-of-court statements implicating defendant in charged offenses, even though witness was available to testify and in fact testified that she could not recall any of events that formed basis of charged offenses. Said statements were admissible where, as here, there was evidence that defendant, in spite of protective order, made approximately 75 direct and indirect bribes/contacts with victim in order to get her to recant her story. As such, victim’s testimony that she could not recall any incidents that formed basis of charged offenses rendered victim “no longer available” for purposes of allowing admission of her prior statements made to police. Dist. Ct. also did not err in denying defendant’s post-trial motion under Jencks Act seeking production of prosecutor’s notes regarding one pretrial statement made by victim since: (1) Jencks Act motion must be made either before or during trial; and (2) defendant failed to show how victim’s statement implicating him in charged offenses would have assisted him at trial where victim had disavowed knowledge of incidents that formed basis of charged offenses.

Magistrate Judge erred in accepting defendant’s guilty plea on felony drug distribution charge, where said acceptance by Magistrate Judge violated Federal Magistrate Act, even though Local Rule 72.1(b) of U.S. District Court for Southern District of Illinois allowed Magistrate Judges to accept said guilty pleas. Fact that defendant consented to Magistrate Judge accepting said plea did not require different result.