Criminal Law

Dist. Ct. did not err in sentencing defendant-former State Representative to 57-month term of incarceration on bribery charge and in requiring forfeiture of $32,500 that Dist. Ct. had calculated as bribe money received by defendant. Ct. of Appeals rejected defendant’s argument that Dist. Ct. could not base instant incarceration on general need to deter public corruption, where record lacked any empirical evidence supporting said conclusion, where Ct. noted that section 3553(a)(2)(B) requires judges to consider general deterrence when fashioning sentence, and that there is nothing in said statute that suggests that empirical findings are required prior to considering said factor. Also, Dist. Ct. did not err in calculating forfeiture amount, which was based on total payments third-party made to defendant to advance sweepstakes-gaming interests in Legislature, where timing of said payments coincided with defendant’s entry and participation in instant scheme. Also, Dist. Ct. was not required to accept defendant’s contention that portion of said payments was for legitimate lobbying work.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his conviction on hit-and-run-related charges, where defendant alleged that trial court improperly denied his motion to suppress inculpatory statements he made during custodial interrogation after he had invoked his right to counsel. Record showed that: (1) after police gave defendant his Miranda warnings and was told that it was important for him to give his side of the story, defendant stated that he felt horrible and asked “So y’all can get a public pretender right now?”; (2) after there was some laughter, one detective stated: “they’re called public defenders;” (3) after more laughter, one detective stated: “due to time right now [i.e. 1:30 a.m.] we can’t…um;” and (4) defendant then asked about potential sentence for reckless homicide and then gave inculpatory statements. Ct. of Appeals found that there was no Fifth Amendment violation, even though state courts erred in finding that defendant did not intend to refer to public defender in his request, since his request for counsel was not unambiguous, where reasonable officer could have construed defendant’s question as to whether public defender could be contacted at that time, as opposed to request that public defender actually be produced at that time.

Dist. Ct. did not err in denying defendant’s habeas corpus petition that challenged his murder conviction on ground that his trial counsel was ineffective, where Dist. Ct. could properly find that said issue was procedurally defaulted. Record showed that: (1) defendant raised ineffective assistance of counsel issue in his pro se petition for post-conviction relief, which was ultimately denied by circuit court; (2) on appeal, defendant’s appointed counsel refused to raise ineffective assistance of counsel issue, and defendant filed motion seeking leave to file supplemental brief that raised said issue; (3) Appellate Court denied defendant’s motion on ground that defendant could not file supplemental brief as long as he was represented by counsel; and (4) Dist. Ct. could properly find that said issue was procedurally defaulted, where Illinois rule against hybrid representation constituted adequate firmly-established independent procedural ground that barred federal habeas review of claim that was not otherwise considered by all courts in Illinois. Ct. rejected defendant’s claim that rule against hybrid representation was not firmly established rule in Illinois. Also, defendant could not assert ineffective assistance of appellate counsel as cause to excuse procedural default, where he had no constitutional right to post-conviction counsel.

Dist. Ct. did not err in imposing above-Guideline, 78-month term of incarceration on unlawful possession of firearm by felon charge, even though defendant argued that Dist. Ct. did not adequately consider section 3553(a) factors or his mitigation evidence, and that sentence was tainted by Dist. Ct.’s view of general prevalence of gun violence in Chicago area. Ct. of Appeals, though, found no procedural error, where Dist. Ct. discussed and applied section 3553(a) factors in detail and further noted defendant’s mitigation evidence while finding that such evidence did not outweigh aggravating factors such as defendant’s criminal history, his prior firearm conviction, and fact that he committed instant offense within 10 months after his release from prior firearm conviction. Dist. Ct. could also note existence of gun violence in Chicago area, where Dist. Ct. could properly consider locality-based factors in gauging impact that particular offense had on community in which it was committed. Also, Dist. Ct. could reject defendant’s contention that instant offense, which arose out incident where defendant possessed loaded gun while selling drugs during daytime in residential/commercial area, was “non-violent offense.” Too, instant sentence was not substantively unreasonable, even though relevant Guideline range was 46 to 57 months, given defendant’s criminal history and his possession of firearm during drug transactions.

Record failed to contain sufficient evidence to support jury’s guilty verdict on two section 924(c) firearm possession charges, where said charges arose out of controlled sale of drugs by defendant to informant, as well as police traffic stop of defendant’s vehicle 30 minutes later while driving away from drug transaction, where police found drugs and firearm in hidden compartments in defendant’s vehicle. While record supported one section 924(c) charge based on controlled drug transaction, government needed to show that defendant made more than one decision to use/possess firearm, and instant record at most showed only one decision to possess firearm given only 30-minute gap between both offenses, and government’s surveillance of defendant after controlled drug purchase, which did not indicate that defendant made stop to pick up gun that formed basis of firearm charge arising out of traffic stop. As such, government could not stack instant drug charges to obtain two convictions and two separate 25-year sentences. Also, Dist. Ct. erred in denying defendant’s motion for new trial without conducting evidentiary hearing, where defendant asserted that his trial counsel labored under drug addiction during trial. Evidentiary hearing was required, where: (1) three weeks after instant trial, defendant’s trial counsel overdosed on heroin; (2) police record indicated that trial counsel had substance abuse addiction for six-year period; (3) record does not explain why trial counsel successfully advanced defendant’s motion to withdraw prior guilty plea that contained only one section 924(c) conviction, where outcome of counsel’s efforts was expected result that government, after said withdrawal, obtained superseding indictment that contained two section 924(c) charges that increased defendant’s exposure to potential prison time.

Dist. Ct. did not err in sentencing defendant to 180-month term of incarceration on bank robbery charge, where said sentence was based, in part, on finding that defendant qualified for enhanced career-offender treatment under section 4B1.1 of USSG based in part on defendant’s pre-2013 Illinois conviction on aggravated vehicular hijacking charge. Ct. of Appeals found that said conviction qualified as “crime of violence” for purposes of career-offender enhancement. Ct. rejected defendant’s argument that mental state of recklessness could be implied as element of said offense, where statute did not expressly prescribe any mental state.