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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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clockWhen individuals are convicted of serious sex crimes in state courts, they can appeal their convictions through multiple state and federal channels. While state procedures are governed by state law, federal procedures govern the process of applying for a writ of habeas corpus (or an application for relief) from a federal court. The law that governs this process is known as the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).  Under AEDPA, while federal channels are available to criminal defendants, they must exhaust the necessary state procedures first. Once those state procedures are completed, the clock then begins to run on the time for a defendant to appeal to the federal courts.  A recent case out of Wisconsin looks at what happens when federal defendants fail to meet those timelines.

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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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home computerIn order to conduct a constitutional search and seizure of an individual’s property, the Fourth Amendment requires that law enforcement has either probable cause to conduct such a search or consent from the individual who owns the property. Unique issues arise when property is jointly owned by two or more individuals, such as when a landlord and a tenant are both technically owners of an apartment, or when a car is owned by two different individuals. A recent case before the Seventh Circuit considers whether an individual with “authority” over property, but not ownership, can consent to a search that ultimately results in criminal charges against the owner.

In United States v. Wright, police responded to a domestic dispute between Mr. Wright and his ex-girlfriend, Ms. Hamilton. During the investigation of the dispute, Ms. Hamilton referred to Mr. Wright as a “pedophile.” On the next day, investigators specializing in crimes against children contacted Ms. Hamilton to follow up on this comment. Ms. Hamilton explained that Mr. Wright had visited a website called “Jailbait,” which investigators knew often featured images of underage children. The investigators asked Ms. Hamilton if she used the computer that Mr. Wright used, which she did, and they asked for her consent to search it. She agreed. When investigators viewed the computer hard drive, they found child pornography on the computer. Wright was charged with possession of child pornography, and he moved to suppress evidence from the computer search, which he said was obtained without the necessary consent from him. The trial court disagreed, finding that since Hamilton and her children regularly used the computer for family activities, Hamilton had common authority over the computer and could give valid consent for the computer to be searched.

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houseIn recent years, corrections officials have become convinced, despite conflicting studies,  that sex offenders are prone to particularly high rates of recidivism.  In an effort to address concerns that certain circumstances, such as homelessness, accelerate recidivism, many counties have enacted regulations and administrative ordinances imposing various requirements on sex offenders upon their release from prison. For instance, sex offenders may be required to return to their county of residence rather than allowed to move to a new location after prison, and they may be prevented from residing near schools or daycare facilities.  In Brown County, Wisconsin, local officials enacted an ordinance providing that sex offenders who cannot find an approved home that meets these various types of requirements must continue to remain in jail, or prison, during the evenings until a suitable home is located.

While such restrictions are a result of justifiable concerns, they also raise important questions for due process and the liberty rights of offenders. In Werner v. Wall, Mr. Werner raised a constitutional challenge to Brown County’s ordinance, arguing that incarcerating him after his mandatory release date, and until he found a proper home, was a violation of his Eighth Amendment and Fourteenth Amendment rights.  At trial, the individual defendants that he sued, including various correctional officials, moved for summary judgment against his claims, holding that they were barred by qualified immunity. The district court agreed.  Mr. Werner appealed.

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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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