Criminal Law

In prosecution on drug conspiracy charge, Dist. Ct. did not err in admitting lay opinion evidence regarding identity of defendant's voice on 24 recorded conversations based upon 15-second voice exemplar taken during defendant's booking process. Witness testified that she became familiar with defendant's voice by listening to exemplar 50 to 60 times, and accuracy of opinion testimony was jury question. Moreover, Dist. Ct. could properly admit transcripts of said recorded conversations and could permit jurors to use them during deliberations where Dist. Ct. made sufficiently clear that actual recorded tapes, as opposed to transcripts, constituted relevant evidence in case. Also, Dist. Ct. did not err in admitting under co-conspirator exception set forth in Rule 801(d)(2)(E) conversation between defendant and third-party concerning recruitment of witness to sell drugs on behalf of conspiracy where said conversation could be viewed as statement in furtherance of said conspiracy.

Dist. Ct. did not err in denying defendant's habeas petition challenging his extended sentence of life in prison based on Ill. trial court's finding that instant murder was accompanied by exceptionally brutal and heinous behavior. While defendant argued that said extended sentence violated Apprendi because trial court, as opposed to jury, made requisite finding that murder was exceptionally brutal and heinous, defendant procedurally defaulted said issue when he failed to raise it in trial court, and when Ill. Supreme Court rejected defendant's Apprendi argument under plain error standard after finding that defendant could not establish prejudice with respect to any Apprendi violation. Moreover, with respect to default issue, defendant failed to show that application of default ruling would create potential for miscarriage of justice.

In prosecution on arson charges, Dist. Ct. did not err in granting defendant's motion to suppress gasoline and kerosene cans that were seized from defendant's apartment that was located in rear of storage area of father's tobacco shop. Police request to search defendant's apartment for evidence of arson in search warrant application was reasonable since common sense supports inference that suspect's home is likely place to find evidence of crimes. Moreover, while instant cans were found in tobacco shop's loading dock, instant seizure was not beyond scope of search warrant since Dist. Ct. could properly find that loading dock was part of defendant's apartment where there were no obvious barriers between defendant's living space and any space used exclusively by tobacco shop.

Dist. Ct. did not err in sentencing defendant to 270-month term of incarceration on drug conspiracy charge after Dist. Ct. found that defendant qualified for manager/supervisor enhancement. Dist. Ct. properly found presence of four of seven factors identified in section 3B1.1(b) of U.S. Guidelines Manual that would support imposition of manager/supervisor enhancement where defendant’s statements during plea colloquy, as well as testimony from witness, indicated that defendant supplied drugs to others for resale, exercised discretion in determining amounts of drugs that others would sell, recruited others to sell drugs on behalf of conspiracy, and retained percentage of drug proceeds from drug sales made by others. Moreover, Dist. Ct. could properly impose enhancement for willful obstruction of justice based upon defendant’s failure to appear at initial sentencing hearing.

In prosecution on drug distribution charges, Dist. Ct. did not err in failing to grant defendant's request for issuance of missing witness instruction even though confidential informant, who advised law enforcement officer that defendant was selling drugs and participated in two controlled drug purchases involving defendant, could not be located prior to trial. Said instruction was not proper where defendant failed to show that confidential informant was peculiarly in control of govt., and record otherwise showed that both defendant and govt. had made unsuccessful attempts to locate confidential informant.

Dist. Ct. did not err in sentencing defendant to 235-month term of incarceration on multiple charges of bank fraud, wire fraud, mail fraud, and money laundering stemming from scheme to flip real estate purchases by inflating appraisals in order to deceive banks into loaning more money than properties were actually worth. Dist. Ct. appropriately applied two-level enhancements for use of sophisticated means under section 2B1(b)(9)(c) of USSG and for involvement of more than 10 victims under section 2B1.1(b)(2)(A)(1) of USSG where record showed that defendant deceived many bank officials by falsifying over 150 loan applications in order to obtain loan proceeds. Record also supported Dist. Ct.'s application of enhancement under section 2B1.1(b)(14)(A) of USSG where loan proceeds exceeded more than $1,000,000 as established through spreadsheets generated by FDIC official.