Articles Posted in Criminal Defense

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computerEven after a criminal defendant completes his or her jail sentence, restrictions on freedom may remain. When a defendant leaves a jail or prison, a judge may impose terms of supervised release, which place certain restrictions on a defendant’s activities and require him or her to check in regularly with a probation officer. For defendants convicted of sex crimes, these terms of supervised release may be particularly restrictive because of the very serious nature of their crimes and the high rates of recidivism for sex offenders. A recent case before the Seventh Circuit Court of Appeals looks at particularly restrictive terms and a defendant’s efforts to oppose them.

In United States v. Warren, Mr. Warren was charged with transporting and possessing child pornography and was sentenced to five years in prison and 15 years of supervised release. Over the course of 19 days in 2003, Mr. Warren managed a Yahoo Group that he used to share and distribute child pornography to other members. He also solicited members to add to the collection of child pornography that he had created. In February 2004, federal agents executed a search of Mr. Warren’s apartment and seized his computer. Mr Warren admitted to hosting the Yahoo group and to possessing child pornography. He pled guilty to the charges against him and was sentenced to jail time and supervised release. Toward the end of his prison term, the probation officers in charge of Mr. Warren’s eventual release petitioned the court to modify Mr. Warren’s conditions of supervised release. Specifically, they sought to add a travel condition to his release, requiring him to notify his probation officers whenever he sought to travel outside the state. They also sought to impose a no-contact-with-minors condition and a polygraph condition.

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handcuffsUnder the Fourth Amendment of the United States Constitution, criminal defendants are protected from unconstitutional searches and seizures. This means that police cannot enter the home of an individual or search a place like a vehicle without probable cause to do so and a warrant, unless certain circumstances apply. A recent case before the Wisconsin Supreme Court considers whether exigent circumstances justifying entering an individual’s home exist when a police officers claims to be in “hot pursuit” of an individual who is believed to have committed crimes.

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instructionsWhen judges are considering a sentence for a criminal defendant, they may look at a wide variety of factors and issues, including prior recidivism, remorse, whether the crime was conducted in a particularly egregious or violent manner, or mitigating circumstances such as economic or personal issues. In a recent case before the Seventh Circuit Court of Appeals, judges considered whether it was acceptable to consider the prior mental health history of a defendant in determining the severity of his punishment.

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marijuanaWhen dealing with drug crimes, one of the tools that law enforcement has in their tool box is the ability to seize assets related to a drug crime and to seek a declaration that such assets have been “forfeited” to the state. This involves a judicial process of getting a court to declare that the assets are sufficiently related to the drug activity that they can be forfeited. Forfeiture can help to reduce drug manufacturing or trafficking by seizing the infrastructure and assets necessary to support such operations.  A recent case before the Western District of Wisconsin allowed the forfeiture of property after the discovery of a marijuana grow operation.

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moneyWhen individuals are involved in criminal activity, the assets related to that criminal activity can often be seized by law enforcement involved in the investigation of the crime. This can include things such as vehicles used to commit a crime, homes or other locations used to stage a crime, and even the money that is collected as a result of the criminal activity.  The seizure of these types of items and property is known as civil forfeiture.

In Cruz-Hernandez v. Fund of $271,080, the Cruz-Hernandez brothers were identified as potential participants in a drug trafficking scheme after a home invasion was reported at the house where they lived. When police arrived at the house, they found a handgun and a small amount of marijuana inside the premises. A drug dog also alerted them to potential drugs inside a vehicle that was parked outside the house. After police obtained a warrant to search the vehicle, they found $271,080 in cash inside but no drugs. Since no drugs were found, the police did not bring charges against the Cruz-Hernandez brothers. However, they did institute a civil forfeiture action to seize the large amount of cash that was discovered. They alleged that the money clearly had been used or would be used to facilitate drug trafficking.

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computerWhen an individual has engaged in the interstate transfer of child pornography, they may open themselves up to both state and federal criminal charges. While a defendant cannot be charged twice for the same crime, a defendant can be sentenced for different crimes that have somewhat overlapping elements. When a defendant is convicted of multiple related crimes, a sentencing judge must determine whether the sentences imposed will be served separately or concurrently (meaning they will be served at the same time). A recent case before the Seventh Circuit Court of Appeals looks at when a judge is required to impose a sentence concurrently and when a judge has the liberty to increase the severity of the punishment by requiring a defendant to serve sentences one after another.

In United States of America v. Schrode, Mr. Schrode was convicted of sexually assaulting his step-daughter, who was four years old at the time. He was sentenced to 18 years imprisonment by the Illinois state courts.  Later that year, the FBI executed a search warrant on his home, believing that Mr. Schrode also possessed child pornography. He was found to have possessed child pornography and transmitted it to other users. A short time afterward, Mr. Schrode’s wife discovered that some of the pornography he possessed included images of his step-daughter and of his sexually assaulting his step-daughter. As a result, he was indicted on four federal charges:  (1) receiving child pornography; (2) producing child pornography of his step-daughter in February 2013; (3) producing child pornography of his step-daughter in March 2013; and (4) possessing child pornography. He pled guilty to all four charges.

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gavelWhen an individual is found guilty of committing a crime, a sentence is not usually automatically imposed. Instead, a separate hearing is scheduled for sentencing and other matters. Leading up to the sentencing hearing, the government will create what is known as a pre-sentencing report, which sets forth the applicable sentencing factors to be considered by the judge and provides a recommendation for what the sentence should be.  While this pre-sentencing report (PSR) focuses primarily on the jail time to be imposed, it also addresses other factors, such as conditions of probation or supervised release, or fines that must be paid. A recent case before the Seventh Circuit looks at PSRs for those convicted of child pornography-related offenses and when objections to PSRs can be made.

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cell phone

When investigating claims of marijuana cultivation or production, police officers typically rely on a wide variety of sources of information to determine whether they have probable cause to execute a search warrant on a certain property or person. Some of those sources are considered inherently more reliable than others. For instance, an eyewitness who reports observing an incident is generally considered to be more reliable than an individual who reports overhearing a conversation possibly related to the incident.  Likewise, known informants with a consistent history of assisting the police are given more weight in a probable cause determination than anonymous informants with little to risk in supplying faulty information. A recent case before the Wisconsin Court of Appeal looks at when, if ever, anonymous tips may reasonably provide probable cause for a search warrant to be executed.

In State v. Linde, Mr. Linde’s home was searched on suspicion of manufacturing of THC and cultivation of marijuana plants. In 2010, Mr. Linde was arrested for growing marijuana plants and possessing paraphernalia at a cabin he owned in Oconto County, Wisconsin.  In 2011, almost a year later, police received an anonymous call that Mr. Linde was again growing marijuana at his residence in Forest County, Wisconsin. The caller did not leave identifying information and stated only that during a recent trip to the residence, he had observed marijuana plants growing there.

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agreementWhen facing criminal charges, defendants always have a choice of whether to plead guilty or not guilty. Often, that choice will be influenced by a plea agreement that the prosecution may have offered to the defendant. In a plea agreement, the prosecutor may try to persuade the defendant to avoid the risk of trial by agreeing to plead guilty with the understanding that the state will recommend a reduced sentence in exchange for the guilty plea. This saves the state the time and expense of trial, and it ensures that the defendant is punished, while protecting the defendant from the possibility of maximum jail time. However, just because the defendant and the prosecution agree to a plea deal does not mean that the court has to accept it. In a recent case before the Seventh Circuit, the court affirmed the rejection of a plea agreement when the district court determined that the sentence agreed to was not sufficiently strict.

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restitutionTime spent in prison is not the only punishment that can be applied to defendants who are found guilty of committing a crime.  Defendants may also be required to relinquish certain rights, such as the right to own a firearm, or may be forced to attend classes, such as a DUI class, related to their crime. Additionally, defendants may be required to pay restitution to the victims of their crime, as a small means of attempting to remedy the crime that has occurred.  In child pornography cases, it is often difficult to implement restitution because the victims of the crime may be unidentifiable minors. Recently, however, a child pornography case before the Seventh Circuit dealt with restitution for a widely identified child pornography victim who had been greatly harmed by the sharing of images that involved her.

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