Criminal Law

In prosecution on kidnapping and extortion charges, Dist. Ct. did not err in admitting victim’s identification of defendant as culprit, even though initial identification came after police officer showed victim two pictures of defendant two hours after victim had escaped from confinement. While showing victim instant photographs that contained images of defendant and another individual was akin to “show up” procedure that posed risk of being suggestive, no error occurred in admission of said evidence where circumstances indicted that said procedure was necessary to assist police to act quickly to apprehend culprit who was still at large. As such, jury, as opposed to Dist. Ct., was entity responsible for determining reliability of defendant’s identification. Ct. further found that any error in introduction of said evidence was harmless where others identified defendant as culprit, and where defendant’s phone records indicated that defendant’s phone traveled approximately same path as kidnappers at same time of crime.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in granting defendant’s motion to suppress his confession under circumstances where, prior to giving confession, police read defendant his Miranda warnings, but did not give him opportunity to speak to counsel after he made request for counsel. Defendant’s statement to officer: “Can you call my attorney” was sufficient to invoke right to counsel, and defendant should not have been subjected to further interrogation until his counsel had been made available to him. Ct. rejected govt. claim that defendant’s statement was ambiguous with respect to his request for counsel. (Dissent filed.)

Dist. Ct. did not err in denying defendants’ habeas petition challenging their mail fraud convictions arising out of scheme to award City of Chicago jobs and promotions to favored applicants who had previously served as campaign workers and volunteers for certain political candidates, even though defendants argued that Dist. Ct. had erred in giving jury instruction that defined scheme to defraud as deprivation of money or property or theft of honest services. While instant instruction was incorrect in light of Skilling, 130 SCt 2896, said error was harmless since record reflected single scheme to take City jobs and promotions through false representations, and that said jobs and promotions constituted City’s money or property. As such, jury could only have convicted defendants on money/property fraud and not on theft of honest services fraud that was at issue in Skilling. Fact that defendants did not receive cash from scheme did not require different result.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on grounds that his trial counsel was ineffective for failing to establish that defendant was in custody at time he gave statement to police officer, who had not given defendant Miranda warnings at time of said statement, and by eliciting fact that defendant had been drinking heavily just prior to defendant hitting victims with his car. Ct. rejected defendant’s claim that failure to call defendant’s sister to testify regarding whether defendant had been in custody prior to giving statement was not prejudicial where sister’s testimony was not credible, and where defendant’s statements to others established that he was aware of his impaired state and knew that his actions created strong probability of death or great bodily harm. Ct. also rejected defendant’s claim that his appellate counsel was ineffective for failing to appeal trial court’s denial of defendant’s proffered voluntary intoxication jury instruction where said failure was product of counsel’s valid appellate strategy to argue, albeit unsuccessfully, that trial counsel was ineffective for attempting to use voluntary intoxication defense at all.

Dist. Ct. did not err in sentencing defendant to 37-month term of incarceration on charge of conspiracy to defraud U.S. arising out of scheme to produce fake passports and other documents to obtain driver’s licenses based in part on finding that said scheme produced more than 100 false documents, as well as Dist. Ct.’s rejection of defendant’s claim that he was only minor participant in said scheme. Defendant acknowledged in his plea agreement that he conspired with several others, including conspiracy ring-leader, for approximate one-year period of time, and Dist. Ct. could properly find that scope of criminal activity to which defendant had agreed to jointly undertake included full range of conspiracy’s criminal activities so as to support 100-document figure used to establish defendant’s sentencing range. Moreover, facts contained in plea agreement precluded defendant from obtaining minor participant reduction.