7th Circuit Criminal Law News - U.S. Seventh Circuit
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Recent Criminal Law Decisions

7th Cir. Tosses Man's Arson Conviction, Waffles on Lying Charge

The Seventh Circuit overturned a lower court's conviction of a man who was found guilty of arson, but remanded the case with regards to lying to the FBI during the investigation.

Fortunately for the defendant, continued law enforcement officer (LEO) searches of his business went beyond the scope and purpose of the search, underscoring again the very blurry region of "fruit of poisonous tree" and the "purged taint."

Lex, the drug-sniffing dog, has been a very bad boy. No, Lex didn't bite anyone. He never peed on the carpet or tore apart an officer's shoe. Rather, Lex sniffed drugs on just about everyone he encountered -- whether there were drugs present or not.

Lex's nose was just about as accurate as a coin toss, according to the Seventh Circuit. Lex's poor drug-sniffing skills weren't bad enough to remove probable cause, however. Lex's shortcomings did allow the court, in an opinion released Tuesday, to highlight the risk of police using inaccurate dogs as a pretext for otherwise unconstitutional searches.

You won't find him wandering the streets of Chicago anytime soon, let alone reviving his political career, but ex-Illinois Governor Rod Blagojevich became a bit less of a felon yesterday, as the Seventh Circuit tossed out five of his 18 convictions. Blagojevich, you may remember, was arrested while serving as Governor of Illinois in 2009, after investigators caught him trying to sell Barack Obama's former Senate seat.

Blagojevich was convicted on 18 counts of corruption, attempted extortion, wire fraud, and associated crimes. Mistakes in jury instructions require that five of those convictions be vacated, the Seventh Circuit ruled.

An armed robber who was discovered and prosecuted years after the crime has failed in his challenge to his conviction. Pascal Sylla, convicted in 2013 of committing a 2003 robbery in Anderson, Indiana, challenged a federal law which extended statutes of limitations when new DNA evidence links an individual to the felony.

That law, which essentially resets the statutory clock when a DNA connection is discovered, is not unconstitutional, the Fourth Circuit ruled on Thursday.

A supervisor who allegedly ignored complaints that her parole officer was sexually harassing his parolees does not have qualified immunity, the Seventh Circuit ruled on Friday. According to a lawsuit filed by Adam Locke, a Minnesota parolee, Mya Haessig repeatedly ignored complaints that Locke was being sexually harassed by his parole officer and threatened him with retaliation for pursuing those complaints.

Failure to act on the sexual harassment complaints was a violation of Locke's equal protection rights, according to the court, and a reasonable jury could find that Haessig's failure to act was a form of discrimination against men who report sexual harassment.

Times are tough for executioners. Society has long moved passed the more flamboyant forms of capital punishment -- hanging, firing squad, guillotine -- and even the remaining methods might amount to torture. That is, if you can even find someone to use them on.

The Seventh Circuit isn't making any executioners' lives easier either. The court threw out the death sentence of a man convicted of killing an Indiana sheriff's deputy. The Seventh tossed the death sentence after the Indiana Supreme Court wrongfully ignored the defendant's low IQ scores and made false assumptions about his intellectual ability based on the fact that he could obtain work.

Judge Posner hates ostriches. The large, flightless birds, erroneously thought to bury their heads in the sand at the sight of danger, are one of the Judge's favorite insults. Did you ignore adverse precedent? Ostrich! Somehow fail to check citing references? Ostrich conduct!

That doesn't mean he thinks ostrich behavior is criminal, however. Sometimes, closing your eyes to a problem is acceptable, the judge ruled yesterday. Overturning a conviction for conspiring to distribute cocaine, Posner rejected the use of "ostrich" instructions which urged a jury to convict if the defendant had deliberately avoided discovering his role in a trafficking scheme.

In a reminder that sentencing can be a difficult balancing act, the Seventh Circuit, in an opinion by Judge Posner, has vacated the sentence imposed on a recidivist substance abuser. The judgment was reversed technically for failure to consult the relevant sentencing guidelines, though the court didn't hesitate to tell the district court judge that he ought to reconsider the conditions of supervised release as well.

The opinion addresses the case of Joshua Downs, who six months after he was given probation for a drug offense, injured another while drunk driving. His probation revoked, Downs was sentenced to a year and a day in prison and ten years of supervised release -- without the judge examining the sentencing guidelines for his offense.

7th Cir. Overturns Conviction Based on Made-Up Evidence

It's a rare event, indeed, when a federal circuit court actually grants a petition for a writ of habeas corpus. The federal habeas corpus standard is fairly unforgiving, granting great deference to lower courts and construing ambiguities in the law against the petitioner.

Owens v. Duncan, however, is a pretty clear-cut case of a defendant who was afforded very little of the process he was due. Judge Richard Posner showed little patience for a case based on "the combination of weak proof with a verdict based on groundless conjecture."

A Little Good News (Mostly Bad) for Child Porn Defendant on Appeal

If you're looking for treasure troves of interesting Fourth Amendment issues, it seems like your two go-to crimes are drugs and child pornography. This case from the Seventh Circuit involves the latter.

An informant allowed an FBI agent to assume his identity online. The agent corresponded with defendant Michael Borostowski, who offered to provide the agent with child pornography in exchange for a webcam "session" with a child. After receiving the promised pornography, the agent got a warrant to search Borostowski's Yahoo email account, revealing, shockingly, more pornography! This led to a warrant of Borostowski's physical home and some more porn, then a conviction and a 24-year prison sentence.