Criminal Law

Dist. Ct. did not err in denying defendant's habeas petition alleging that his trial counsel was ineffective for advising him to plead guilty to certain drug charges in exchange for false guarantee that govt. would file Rule 35 motion seeking reduction in sentence approximately one year later. Defendant failed to show that he would not have pled guilty to instant offense even if his trial counsel had explained that there was no guarantee of any Rule 35 motion where: (1) defendant wrote several letters to Dist. Ct., one of which was before defendant had ever met trial counsel, indicating desire to plead guilty; (2) defendant faced virtual life sentence for parole violation on Texas conviction, which explained defendant's statement in one letter that going to trial on instant charge was pointless; and (3) defendant indicated in his Rule 11 colloquy that no promises had been made to plead guilty.

Dist. Ct. did not err in sentencing defendant to 327-month term of incarceration on drug distribution charge involving crack cocaine, under circumstances where defendant faced statutory minimum sentence of 240 months, where Dist. Ct. found that defendant had particularly extensive criminal history, that included six felonies involving crimes of violence. Dist. Ct. gave adequate explanation for instant above guideline sentence that tracked factors mentioned in section 3553(a), and Dist. Ct. could properly look to defendant's prison infractions, which included solicitation for murder of fellow inmate, when imposing instant sentence.

In prosecution on charge of conspiracy to impede IRS and for filing false income tax returns, defendants failed to show that they were denied either statutory or constitutional right to speedy trial even though instant trial did not occur until two years after date of indictments. Dist. Ct. did not err in granting certain continuance requests after finding that said requests served ends of justice. Moreover, Dist. Ct. could properly exclude time associated with co-defendant's motion for bill of particulars even though said motion did not actually cause delay in case. Ct. also rejected defendants' claim that: (1) Dist. Ct. improperly excluded time associated with motion filed by co-defendants' new counsel to familiarize himself with case even though said co-defendant did not personally request said continuance; and (2) instant two-year delay in bringing case to trial violated their constitutional right to speedy trial after Ct. found that defendants mostly caused said delay. Ct. further noted that defendants failed to show prejudice in instant delay. One defendant, though, was entitled to reversal of income tax conviction where prosecutor committed plain error by twice referring to said defendant's invocation of her right to remain silent despite warnings from Dist. Ct. to refrain from doing so.

In prosecution on money laundering and Social Security concealment charges to which defendant had pleaded guilty, Dist. Ct. erred in denying defendant's request to substitute counsel made prior to entry of guilty plea where trial date had not yet been set until day that Dist. Ct. considered said motion, and where denial came two weeks after motion for substitution had been filed. Moreover, although defendant's guilty plea contained appellate waiver, said waiver did not apply where colloquy did not make clear to defendant that he was waiving ability to raise instant issue. Accordingly, case was remanded to permit defendant ability to withdraw his guilty plea.

In prosecution on various drug conspiracy charges, Dist. Ct. did not err in denying defendant's motion to suppress his confession that was generated after defendant first gave officers personal background information, and after he was given Miranda warnings. Record did not reflect that officers used prohibited two-step interrogation process to obtain instant confession since initial pre-Miranda questioning did not concern incriminating topics. Moreover, Dist. Ct. could properly reject defendant's contention that said confession was involuntary, even though officers mentioned defendant's children as justification for defendant speaking to officers, since there was no evidence that defendant was brow-beaten prior to giving confession and since defendant otherwise exerted his own will by refusing to answer certain questions during interrogation. Alternatively, no reversible error occurred in admitting said confession where Dist. Ct. was adamant that his guilty finding against defendant on charged offenses was unrelated to admission of defendant's confession.

Record contained sufficient evidence to support defendant's conviction on charge of aggravated identity theft under 18 USC section 1028A. Ct. rejected defendant's claim that her conviction cannot stand where, as here, victim of plaintiff's identity theft was deceased person.

Record contained sufficient evidence to support defendant's conviction on bankruptcy fraud and making false statements in bankruptcy petitions where defendant-attorney made false statements in bankruptcy petitions indicating that said debtors were acting pro se during period of time when defendant's law license was suspended. Record contained sufficient evidence to support Dist. Ct.'s finding that defendant solicited said debtors/clients, accepted fees and made misrepresentations regarding their pro se status to conceal fact that defendant was practicing law without license. Ct. rejected defendant's claim that payment of filing fees by law firm check should have alerted Bankruptcy Ct. that defendant was making statement that he represented instant debtors.

Dist. Ct. erred in sentencing defendant on charge of felon in unlawful possession of firearm to statutory mandatory minimum 15-year term of incarceration without giving defendant credit for 9 months spent on unrelated state conviction that defendant had served subsequent to his arrest on instant federal charge. Dist. Ct. erred in finding that it lacked authority under section 5G1.3(c) of USSG to give defendant said credit, since section 5G1.3(c) is only advisory and does not restrict Dist. Ct.’s power to give said credit as long as defendant’s total incarceration on both state and federal charges meets instant statutory minimum. However, on remand, Dist. Ct. should give adequate reason in light of section 3553(a) factors if it grants defendant’s request.

New sentencing hearing was required in prosecution in which defendant pleaded guilty to charge of distribution of more than five grams of cocaine base and received 150-month term of incarceration, which was one month less than lowest end of guideline range had his offense involved powder cocaine. At time of sentence, Dist. Ct. was bound by crack/powder cocaine disparity reflected in career offender guideline under section 4B1.1 of USSG, and remand was required under Corner, 598 F3d 411, since record was unclear whether Dist. Ct. would have imposed lighter sentence had it known that it could disagree with guideline range for crack cocaine career offender.

Dist. Ct. did not err in dismissing as untimely defendant’s habeas petition that was filed six years after defendant’s state-court judgment became final, but only eight months after trial court’s denial of defendant’s motion under 725 ILCS 5/116-3 for forensic testing became final. Ct. rejected defendant’s claim that one-year limitation period for filing habeas petition was tolled pending final resolution of forensics motion and observed that defendant should have filed timely habeas petition and then filed motion to stay federal proceedings pending resolution of forensic testing motion.