Criminal Law

In prosecution on child pornography charges, Dist. Ct. did not err in sentencing defendant to 330-month term of incarceration to be served consecutively to 45-year term on state criminal sexual assault and abuse charges that concerned two victims that were at issue in instant federal charges. While defendant argued that his federal sentence was required to be served concurrently under section 5G1.3(b) of USSG, Ct. found that section 5G1.3(c) of USSG applied, such that Dist. Ct. had discretion to impose federal sentence consecutively to state sentence. Moreover, although defendant would be 103 when he finished his state sentence, Dist. Ct. could properly impose instant consecutive sentence, where consecutive sentence provided at least marginal deterrence to criminal, who might consider producing child pornography, and where state and federal sentences punished different conduct and interests.

Dist. Ct. erred in denying without hearing defendant’s habeas petition alleging ineffective assistance of counsel, where defendant asserted that his counsel failed to appropriately explain terms of govt.’s last plea agreement offer, such that defendant would have accepted said offer because it did not actually require that he testify against fellow gang members, and because he could have received lower sentence had he accepted said offer. Contentions in defendant’s affidavit with respect to what he would have done had he been properly apprised of true terms of plea agreement could not be resolved without evidentiary hearing, and, although written plea offer was actually shown to defendant, defendant alleged that counsel did not clarify that term “cooperation” in offer did not require that he give testimony against fellow gang members. Should Dist. Ct. grant defendant’s habeas petition on remand, it will be free to fashion remedy that is something other than directive for govt. to offer same last plea agreement that defendant had rejected. Ct. further found that govt.’s contention that instant habeas petition was untimely could not be resolved without hearing, where defendant alleged that lack of prison library access over period of time constituted sufficient “impediment” under section 2255(f)(2) so as to render petition timely.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his state conviction on charges relating to inappropriate relationships with several minor children, where Dist. Ct. found that said petition was untimely since it was filed more than one year after Ill. Supreme Ct.’s May 28, 2009 denial of his PLA that challenged denial of his post-conviction petition. While defendant argued that he was entitled to equitable tolling since he was not aware of PLA denial until July 29, 2009, and only became aware in January of 2010 that his prior counsel would not be filing habeas petition, defendant failed to satisfy diligence test under Holland, 130 S.Ct. 2549, where: (1) defendant had four months in which to file timely habeas petition; and (2) defendant failed to confirm due date of petition prior to filing it three months after deadline. Fact that either defendant’s prior counsel or defendant himself miscalculated deadline did not require different result.

Record contained sufficient evidence to support defendant’s conviction under 18 USC section 924(c)(1)(A) on charge of unlawful possession of firearm in furtherance of any other crime, where record showed that defendant’s gun was in locked compartment in third row of defendant’s vehicle at time when defendant was attempting to purchase cocaine in front seat of his vehicle from undercover agent. Although instant gun would not have been easy to retrieve during said transaction, jury could properly find that said gun was possessed in furtherance of drug crime since gun provided defendant with greater security during attempted drug purchase, and its placement in locked compartment reduced risk that police would find gun in any search of his vehicle.

In prosecution on unlawful possession of firearm by felon charge, Dist. Ct. did not err in allowing defendant’s wife to testify regarding defendant’s knowledge of presence of guns in defendant’s home, even though wife had moved to quash govt. subpoena to provide said testimony on grounds of marital and spousal testimonial privileges. Wife waived both privileges, where she had previously testified in pre-trial detention hearing about defendant’s knowledge of guns without objecting to giving said testimony. Moreover, defendant lacked standing to appeal Dist. Ct.’s finding that defendant’s wife waived spousal testimonial privilege since said privilege belonged only to wife. Dist. Ct. erred, though, in finding that defendant was eligible for enhanced sentencing treatment under Armed Career Criminal Act (ACCA), where defendant’s prior conviction for unlawful possession of machinegun did not qualify as “violent felony” under ACCA.

In prosecution on perjury charge stemming from defendant’s testimony that her employment discrimination lawyer had not referred her to her bankruptcy attorney, Dist. Ct. did not err in admitting intake form from bankruptcy attorney in which defendant asserted that her employment discrimination lawyer had referred her to bankruptcy attorney. While defendant argued that admission of intake form violated attorney-client privilege, said admission was proper since plaintiff’s disclosure regarding instant referral did not reflect either bankruptcy attorney’s or defendant’s thinking with respect to plaintiff’s bankruptcy case. With respect to money-laundering charges against employment discrimination lawyer arising out of claim that said lawyer knew about plaintiff’s bankruptcy petition when he opened certificates of deposit with proceeds of defendant’s divorce settlement that had not been reported as assets in plaintiff’s bankruptcy petition, Dist. Ct. erred in excluding on hearsay grounds lawyer’s testimony regarding his purpose for having control over defendant’s money since, even if lawyer’s response contained defendant’s statements, said response pertained only to lawyer’s state of mind at time of alleged offense.

Dist. Ct. did not err in denying defendant’s motion to withdraw his guilty plea on charge of illegal reentry to U.S. after having been removed, even though defendant argued that he could withdraw guilty plea because he met criteria for seeking collateral attack on underlying removal order that provided predicate for instant charge of illegal reentry to U.S. Underlying 2000 removal order was based on defendant’s 1993 guilty plea on charge of aggravated sexual abuse of minor that (as it turns out) rendered defendant eligible to seek section 212(c) waiver of his deportation, and defendant failed to show (as required by Judalong, 132 S.Ct. 476) that prior deportation proceedings deprived him of opportunity for judicial review in order to challenge at that time his alleged inability to seek section 212(c) relief.

Dist. Ct. did not err in sentencing defendant to 41-month term of incarceration on bank robbery-related charge stemming from initial robbery of bank in which defendant pretended to have gun and robbery of payday lender thirty-six days later during which defendant carried actual gun. Ct. rejected defendant’s claim that he was entitled to lower sentence under section 5K2.20 USSG on basis that instant robberies were “aberrant” in view of his law-abiding past, since defendant had in essence committed two robberies as opposed to single offense as contemplated under section 5K2.20, and since Dist. Ct. had otherwise considered criteria under section 3553(a) in sentencing defendant to lower-end of guidelines that included his law-abiding past.

Record failed to contain sufficient evidence to support defendant’s arson conviction arising out of defendant’s confession that he burned down building that housed his business by setting gasoline fire because he was tired of running his business. Ct. rejected govt.’s theory of case, i.e., that use of accelerant by defendant constituted arson per se, and noted that record failed to contain any evidence that defendant “maliciously” damaged said building, where record was silent as to both ownership of building that housed his business, as well as danger that fire posed to any other structure.