Criminal Law FLASHPOINTS February 2021

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

Non-Eyewitness Can Identify Suspect After “Perceiving” Him Under 725 ILCS 5/115-12

In People v. Neal, 2020 IL App (2d) 170356, the Second District of the Illinois Appellate Court held that the prior identification statute, 725 ILCS 5/115-12, permitted a detective to testify about a stepfather’s prior identification of the defendant shown on still photos committing a theft even though the stepfather did not witness the defendant commit the crime depicted on the still photos. 2020 IL App (2d) 170356 at ¶36.

The defendant was found guilty of burglary and retail theft on separate dates at a St. Charles Meijer store after a bench trial. 2020 IL App (2d) 170356 at ¶1. The state presented proof of other crimes from other suburban Meijer stores that had been burglarized around the same time period. In those thefts, the video-recorded suspect wore a green jacket, a baseball cap, and sunglasses. The suspect stole cologne and perfume products. 2020 IL App (2d) 170356 at ¶¶9 – 10. The St. Charles loss prevention officer created a “be on the lookout” (BOLO) bulletin that contained still photos of the suspect that she sent to other Meijer stores. 2020 IL App (2d) 170356 at ¶5.

The police arrested the defendant after he attempted to leave the Bloomingdale Meijer store with underwear that he had not paid for. The defendant wore a green jacket and flat-brimmed baseball cap. 2020 IL App (2d) 170356 at ¶11.

During the investigation, the defendant’s stepfather made a positive identification of the defendant to a detective after seeing the suspect in the BOLO photos. 2020 IL App (2d) 170356 at ¶15.

However, during the trial, the stepfather testified that he could not really see the BOLO pictures because of his vision problems and because the images were blurry. The stepfather also did not remember making an identification and denied telling the detective that the suspect’s coat was the same one he and the defendant’s mother had bought for him. The stepfather did not recall telling the detective that the defendant often wore hats that were like the one worn by the suspect. 2020 IL App (2d) 170356 at ¶16.

The detective was recalled by the state and testified that the stepfather identified the suspect in the BOLO photos as the defendant. The detective also testified that the stepfather said he had bought the coat in the photos for the defendant a few weeks before and the defendant often wore that kind of hat. According to the detective, the stepfather did not mention anything about not being able to see well. 2020 IL App (2d) 170356 at ¶17.

The defendant’s mother testified for the defense and explained the stepfather’s history of eye problems. 2020 IL App (2d) 170356 at ¶18. The trial court determined that the stepfather had identified the defendant in the photographs and found the defendant guilty of the thefts. 2020 IL App (2d) 170356 at ¶20.

On appeal, the defendant argued that the stepfather’s identification of him in the BOLO photos was wrongly admitted as substantive evidence under 725 ILCS 5/115-12, which permits a prior out-of-court identification of a defendant if the identification was made “after perceiving” the defendant. 2020 IL App (2d) 170356 at ¶¶30, 32. See also Illinois Rule of Evidence 801(d)(1)(B).

The defendant argued that the phrase “after perceiving him” meant “perceiving him commit the crime.” 2020 IL App (2d) 170356 at ¶32. In the defendant’s view, the person who made the identification must be a victim or an eyewitness to the crime instead of simply being someone who has seen the accused at some point in the past.

The court interpreted what it means to identify someone after “perceiving” them under 725 ILCS 5/115-12. The statute states in full that

[a] statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him. [Emphasis added.] 725 ILCS 5/115-12.

The Neal court determined that whether the statute requires the identification to be made by a victim or an eyewitness to the crime was a matter of first impression. The Neal court noted that if the legislature had intended to limit the scope of the statute as some other states have done, then it could have done so. 2020 IL App (2d) 170356 at ¶37. The court also stated that the scenario before it in which the sole ability to identify the perpetrator comes from video footage and still photos could be increasingly common in the future. However, the court said it would not interpret the statute to bar prior identifications by non-eyewitnesses absent a clear legislative intent to do so. 2020 IL App (2d) 170356 at ¶38.

The court also found support for its rationale under Ill.R.Evid. 701, which lays out factors on whether a lay witness can testify about the identity of a perpetrator. The court said that under Ill.R.Evid. 701, “the key factors are not whether the lay witness saw the charged offense take place but whether the testimony is rationally based on the witness’s own sensory perceptions and whether it would be helpful to the finder of fact.” 2020 IL App (2d) 170356 at ¶46.

The court found further support for its conclusion in the Supreme Court’s decision in People v. Thompson, 2016 IL 118667, ¶50, 49 N.E.3d 393, 401 Ill.Dec. 5 (holding that opinion identification under Ill.R.Evid. 701 is admissible if the testimony is rationally based on perception of witness and testimony is helpful to clear understanding of witness’s testimony or determination of fact in issue), as well as under People v. Mister, 2016 IL App (4th) 130180-B, ¶76, 58 N.E.3d 1242, 405 Ill.Dec. 658 (holding that Ill.R.Evid. 701 allowed for witness to testify about observations made on surveillance video even though he never witnessed events on video).

Therefore, the Neal court found that Ill.R.Evid. 701 allowed the use of substantive evidence from a non-eyewitness to convict an accused. 2020 IL App (2d) 170356 at ¶46.

The court also addressed the difference between identifications made under Ill.R.Evid. 701 versus 725 ILCS 5/115-12 and Ill.R.Evid. 801(d). The difference arises when, under §115-12 and Ill.R.Evid. 801(d), the prior identification is made by a third party instead of by the witness who is unable or unwilling to identify the defendant in court. In that scenario, the fact-finder must determine if the witness’s identification had value and whether the witness actually made the prior identification that the third party claimed he or she did. 2020 IL App (2d) 170356 at ¶49.

Since these conflicts of evidence are normal at trials, the Neal court concluded that distinction was not a sufficient reason to bar third-party testimony about a non-eyewitness’s prior identification. 2020 IL App (2d) 170356 at ¶49.

The court finally noted that since it did not find the term “perceive” under §115-12 to be ambiguous, it declined to address arguments made by the parties that under another provision of Ill.R.Evid. 801(d), specifically Ill.R.Evid. 801(d)(1)(A)(2), a prior inconsistent statement can be admitted as substantive evidence only if it is based on the declarant’s personal knowledge. The court said that “as we conclude that the plain language of section 115-12 and Rule 801(d)(1)(B) is clear and contains no express condition that the declarant be an eyewitness or victim, we do not reach these arguments.” 2020 IL App (2d) 170356 at ¶50.

Accordingly, the trial court did not err in admitting the detective’s testimony regarding the stepfather’s prior identification under §115-12. Id.

Adam Bolotin, Pissetzky Law, LLC, Chicago | 312-883-9466
Matthew Chivari, J.D., Graduate of DePaul University College of Law

Sentence Reductions Under the First Step Act of 2018

At 11:34 p.m. on Thursday, January 14, 2021, Corey Johnson was pronounced dead by lethal injection, becoming the twelfth person executed by the federal government since July 2020 in an “expedited spree of executions.” United States v. Higgs, ___ U.S. ___, ___ L.Ed.2d ___, 141 S.Ct. 645, 647 (2021) (Sotomayor, J., dissenting). In the months leading up to his execution, Johnson made several claims to invalidate his death sentence. In November 2020, Johnson moved an Eastern District of Virginia Court to reduce his sentence under the First Step Act of 2018, Pub.L. No. 115-391, 132 Stat. 5194. 141 S.Ct. at 650.The district court denied Johnson’s motion, holding his conviction was not for a “covered offense” as required by the First Step Act. Id. Upon appeal, the Fourth Circuit denied his motion to stay. Dissenting from the Fourth Circuit’s denial, Judge Motz asserted that the court’s determination of a “covered offense” “present[s] difficult and important issues necessitating adequate consideration by this court.” Id., quoting United States v. Johnson, No. 20-15, 2021 WL 118854, *3 (4th Cir. Jan. 12, 2021). Expressing disdain for the hasteful executions, Justice Sotomayor agreed with Judge Motz and stressed that appellate courts remain divided on the proper interpretation of “covered offense” as it is defined under the First Step Act. Higgs, supra, 141 S.Ct. at 650 n.2 (comparing United States v. Smith, 954 F.3d 446, 449 – 450 (1st Cir. 2020), with United States v. Jones, 962 F.3d 1290, 1298 (11th Cir. 2020)). In fact, at the time Johnson moved to stay, the Supreme Court had already granted certiorari to resolve this split. 141 S.Ct. at 651, citing Petition for Writ of Certiorari, Terry v. United States, No. 20-5904 (filed Sept. 22, 2020). Nevertheless, the Court ultimately allowed Johnson’s execution “without any appellate court ruling on the merits of his claims.” 141 S.Ct. at 651.

The Supreme Court has yet to hold oral arguments, let alone issue a decision, resolving the question. Consequently, our nation’s courts of appeals remain divided on this issue. To better understand the nature of this split and the rationale behind the Seventh Circuit’s position, consideration of the long road leading to the First Step Act is in order.

The Statutory Development of the First Step Act

Federal drug offense penalties have evolved over the past 50 years, reflecting society’s changing stance on the nature of drug use and subsequent shifts in policy. This evolution began in October 1970 with the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, which separated penalties for drug crimes into five “schedules” based on their potential for abuse. 21 U.S.C. §§812(a) – 812(b). Since penalties under this statute were dictated exclusively by the schedule into which a given substance fell (disregarding the quantity at issue), significant disparities emerged. 21 U.S.C. §841(b)(4).

Attempting to address these disparities by integrating quantity into the mix, Congress enacted a series of legislation. However, this did little more than create novel problems. The Controlled Substances Penalties Amendments Act of 1984, Pub.L. No. 98-473, 98 Stat. 2068, and the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, that followed paired specific weights of substances with mandatory minimum sentences for defendants convicted under these statutes. Thus, the now infamous 100-to-1 cocaine base (“crack”) versus powder cocaine disparity was born. A defendant charged under this scheme faced a five-year mandatory minimum sentence for an offense involving 500 grams or more of powdered cocaine and only 5 grams or more of cocaine base and a ten-year mandatory minimum for an offense involving 5 kilograms or more of cocaine, but only 50 grams or more of cocaine base. United States v. Wirsing, 943 F.3d 175, 177 (4th Cir. 2019).

Entrenching the 100-to-1 ratio and solidifying the associated sentencing disparities, Congress went a step further by passing the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1976, which included the Sentencing Reform Act of 1984 (SRA), Pub.L. No. 98-473, Title II, ch. II, 98 Stat. 1987. The SRA created the United States Sentencing Commission, which further enshrined the 100-to-1 ratio into federal drug offense sentencing through the once-mandatory Federal Sentencing Guidelines (Guidelines).

The Supreme Court attempted to draw the sting of the Guidelines and the impact of its wielding of the 100-to-1 ratio on those convicted of federal drug offenses. The Court deemed the Guidelines “advisory,” encouraging tempered discretion that would allow lower courts the authority to “tailor the sentence in light of other statutory concerns as well” and remind courts that even sentences within the Guidelines may still be excessive. United States v. Booker, 543 U.S. 220, 160 L.Ed.2d 621, 125 S.Ct. 738, 757 (2005); Kimbrough v. United States, 552 U.S. 85, 169 L.Ed.2d 481, 128 S.Ct. 558, 570 (2007). Though the Supreme Court ruled Guideline ranges to be advisory, much reform was left to be done. Mandatory minimums still reflected the 100-to-1 ratio, and the Court ruled its Booker and Kimbrough decisions could not be applied retroactively.

Taking a cue from the Supreme Court, Congress caught the 100-to-1 ratio within its own sights through its passage of the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372. Through this statute, Congress reduced the penalties for crack offenses by increasing the quantity of crack that triggers certain penalties. United States v. Shaw, 957 F.3d 734, 736 (7th Cir. 2020). Specifically, the threshold quantity triggering a five-year mandatory minimum sentence increased from 5 grams to 28 grams, and the quantity triggering a ten-year mandatory minimum increased from 50 grams to 280 grams. 957 F.3d at 737. Adding further momentum to the emerging policy shift, the Supreme Court held the more lenient penalty provisions applied to offenders whose crimes preceded the Act’s enactment if their sentencing occurred after that date. Dorsey v. United States, 567 U.S. 260, 183 L.Ed.2d 250, 132 S.Ct. 2321, 2331 (2012). Still, the Supreme Court did not extend the Act’s leniency to defendants sentenced before the law’s enactment, a decision that led to the statute earning the moniker, “The Not Quite as Fair as it could be Sentencing Act of 2010.” Shaw, supra, 957 F.3d at 737.

Congress redressed this lack of retroactivity through passage of the First Step Act, which extended the applicability of the Fair Sentencing Act to defendants whose offenses were committed prior to August 3, 2010. Id. Section 404 of the First Step Act states, in relevant part,

(a) DEFINITION OF COVERED OFFENSE. — [T]he term “covered offense” means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act . . . that was committed before August 3, 2010.

(b) DEFENDANTS PREVIOUSLY SENTENCED. — A court that imposed a sentence for a covered offense may . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.

With a relative victory in hand, courts turned to other problems. District courts subsequently grappled with what offenses constitute “covered offenses” and what discretion they could exercise in determining a defendant’s relief under the First Step Act. The district courts in Illinois are illustrative.

“Covered Offenses” and District Court Discretion Under the First Step Act

Nearly a year after enactment of the First Step Act, a district court in the Northern District of Illinois weighed in on these issues, deciding United States v. Mansoori, 426 F.Supp.3d 511 (N.D.Ill. 2019). In April 1998, Mohammad Mansoori was convicted of one count of conspiring to distribute cocaine, cocaine base, and heroin in violation of 21 U.S.C. §§841(a)(1) and 846 (although no minimum drug quantity was charged in the indictment or submitted to the jury) and 11 counts of engaging in monetary transactions involving funds derived from criminal activities in violation of 21 U.S.C. §1957. 426 F.Supp.3d at 513 – 514. In 2019, having served 23 years of his original sentence — a life sentence for his drug count and 11 consecutive terms of ten years for the remaining counts — Mansoori moved the district court to reduce his sentence pursuant to the First Step Act. 426 F.Supp.3d at 515.

The Mansoori court considered three issues: whether Mansoori’s conspiracy conviction was a “covered offense” under the First Step Act; whether a defendant entitled to relief under the First Step Act for a covered offense is similarly entitled for other (noncovered) offenses; and whether the district court should consider evidence of post-sentencing rehabilitation in exercising its discretion to grant relief. Rejecting the government’s argument, the Mansoori court found the conspiracy conviction to be a “covered offense.” The court held that “[i]t is the statute of conviction — and specific drug quantities found beyond a reasonable doubt — that control eligibility under the First Step Act,” not the actual conduct of the defendant involved in the violation. 426 F.Supp.3d at 516.

Turning to the scope of a district court’s sentence-reducing power, the Mansoori court joined several other district courts in concluding that a defendant eligible for relief for a covered offense is also entitled to plenary resentencing — a full resentencing for additional noncovered offenses. 426 F.Supp.3d at 517. With several other district courts adopting an opposing statutory interpretation, the Mansoori court acknowledged that the issue is far from settled, “as neither the Supreme Court nor the Seventh Circuit has addressed it yet.” Id. The plenary approach is appropriate in light of every sentencing court’s responsibility to “consider the totality of the circumstances [lest] it run[ ] the risk of imposing a sentence that is greater than necessary to serve the purposes of sentencing.” Id., quoting United States v. Medina, No. 3:05-cr-58 (SRU), 2019 WL 3769598, *6 (D.Conn. July 17, 2019). With this objective in mind, the Mansoori court addressed the third and final issue.

To guide their discretion when determining a defendant’s eligibility for relief under the First Step Act, district courts should consider the 18 U.S.C. §3553(a) factors. Mansoori, supra, 426 F.Supp.3d at 519, citing United States v. Shields, No. 1:08-CR-314, 2019 WL 3003425, *7 (M.D.Pa. July 10, 2019). Evidence of a defendant’s demonstration of post-sentencing rehabilitation, for example, “may be highly relevant to several of the §3553(a) factors that Congress has expressly instructed district courts to consider at sentencing.” Mansoori, supra, 426 F.Supp.3d at 519, quoting Pepper v. United States, 562 U.S. 476, 179 L.Ed.2d 196, 131 S.Ct. 1229, 1242 (2011). Based on this reasoning, the district court granted Mansoori’s motion for relief, reduced his sentence to time served, and ordered his immediate release from custody. Mansoori, supra, 426 F.Supp.3d at 520. However, not all Illinois district courts agree with the Mansoori court’s stance.

Recent Seventh Circuit Reversals

Three Seventh Circuit decisions illustrate the divided stance characterizing recent district court decisions and the appellate influence on developing Illinois jurisprudence on First Step Act relief.

In April 2020, the Seventh Circuit decided Shaw, supra, establishing the minimum responsibilities of a district court when determining relief under the First Step Act. 957 F.3d at 740. There, the district court denied relief on the basis that each defendant’s crack offense was not a “covered offense.” 957 F.3d at 737. With one of the defendants, T. Robinson, the district court went a step further, declaring that “even if Robinson were eligible for a sentence reduction, the court would not exercise its discretion to reduce his sentence.” Id.

In reversing, the Seventh Circuit drew particular attention to the district court’s failure to adequately consider Robinson’s arguments. 957 F.3d at 742. “Despite the originality and potential of Robinson’s arguments,” as the appellate court observed, there was no mention in the record that the district court acknowledged either in its summary holding that it would not reduce Robinson’s sentence even if he were eligible, no indication that it considered his arguments at all, and no hearing on the motion that may have otherwise supplemented the record’s sparsity. Id. “At the very least,” the Seventh Circuit asserted, “we must be assured that a court weighing the appropriateness of a sentence ‘relied upon the record’ and ‘considered the parties’ arguments.’ ” 957 F.3d at 740, quoting Chavez-Meza v. United States, ___ U.S. ___, 201 L.Ed.2d 359, 138 S.Ct. 1959, 1965 (2018). Recognizing that the district court may have decided differently had it taken Robinson’s arguments into account, the appellate court declared that “[w]hen, as here, we feel that a court’s explanation is ‘inadequate,’ we may ‘send the case back to the district court for a more complete explanation.’ ” Shaw, supra, 957 F.3d at 742, quoting Chavez-Meza, supra, 138 S.Ct. at 1965.

Three months after Shaw, the Seventh Circuit addressed the issue of plenary sentencing and reaffirmed the breadth of factors that a district court may consider in determining relief under the First Step Act. In United States v. Hudson, 967 F.3d 605, 611 (7th Cir. 2020), the appellate court held that the First Step Act permitted the district court to reduce the defendant’s sentence for a noncovered firearm offense that was a component of an aggregate sentence including covered crack cocaine offenses. Reversing, the Seventh Circuit chided the district court for “collapsing the eligibility and discretionary inquiries” established in the recent Shaw decision. 967 F.3d at 610. A court is not limited under the text of the First Step Act: “Excluding non-covered offenses from the ambit of First Step Act consideration would, in effect, impose an extra-textual limitation on the Act’s applicability.” Id. The appellate court urged district courts to take a more holistic approach and to view a conviction for a covered offense as simply a “threshold requirement of eligibility for resentencing on an aggregate penalty.” 967 F.3d at 611.

As with eligibility, the First Step Actdoes not limit the cache of factors within reach as a district court considers whether an eligible defendant should be granted relief. Echoing its Shaw holding, the Seventh Circuit in Hudson stressed that the First Step Act does not “prevent a court from considering updated statutory benchmarks, current Guidelines, and post-sentencing conduct when determining whether a reduced sentence is merited.” Hudson, supra, 967 F.3d at 613, citing Shaw, supra, 957 F.3d at 741.

In its third and most recent decision, United States v. Hogsett, 982 F.3d 463 (7th Cir. 2020), the Seventh Circuit further refined its interpretation of “covered offense.” Whereas Shaw, supra, 957 F.3d at 739, established that “the statute of conviction alone determines eligibility for First Step Act relief,” Hogsett addressed whether the statute of conviction must include the quantity provision in addition to identifying the underlying unlawful conduct. 982 F.3d at 465 – 466. Hogsett was convicted under 21 U.S.C. §§841(a)(1) and 841(b)(1)(C) for possession with intent to distribute 0.5 grams of crack cocaine. 982 F.3d at 465. Hogsett resolved what subsections of §841 were applicable for analysis under the First Step Act, specifically whether the statute of conviction must include the quantity provision — in this case, §841(b)(1)(C). Id. Invoking the Supreme Court’s holding that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt,” the Seventh Circuit decided in the affirmative. 982 F.3d at 466, quoting Alleyne v. United States, 570 U.S. 99, 186 L.Ed.2d 314, 133 S.Ct. 2151, 2155 (2013). Since the weight of the controlled substance involved can be an aggravating element, the Hogsett court reasoned, quantity is indeed part of the offense. Hogsett, supra, 982 F.3d at 466.

Next at issue was whether the Fair Sentencing Act “modified” Hogsett’s statutory penalty under §841(b)(1)(C). Id. Section 2 of the Fair Sentencing Act raised the quantities of crack cocaine that triggered specific penalties. Shaw, supra, 957 F.3d at 737. However, the actual text of §841(b)(1)(C) remained unchanged as it continued to apply to convictions involving unspecified amounts of controlled substances as well as specified quantities not “provided in subparagraphs (A), (B), and (D).” 21 U.S.C. §841. The appellate court grappled with the following question: Did the Fair Sentencing Act “modify” §841(b)(1)(C) even though it did not alter its text? Hogsett, supra, 982 F.3d at 466 – 467. Falling in line with the First and Fourth Circuits, the Seventh Circuit adopted a broad definition of “modify,” one not limited to solely textual alterations, and rejected the narrower reading supported by the Third Circuit. Id. Based on this reasoning, the appellate court concluded that the Fair Sentencing Act did in fact modify §841(b)(1)(C) when it “changed the quantities of crack cocaine to which Subsection 841(b)(1)(C) applies.” 982 F.3d at 467, quoting United States v. Woodson, 962 F.3d 812, 816 – 817 (4th Cir. 2020). The court accordingly held “all convictions under [§841(b)(1)(C)] —regardless of whether they are subject to a different penalty range — are ‘covered offenses.’ ” Hogsett, supra, 982 F.3d at 468.

Next Steps

Though the above-detailed cases outline the Seventh Circuit’s interpretation of what defendants may petition district courts for sentencing reductions, the precedential value may not last long. With a split among the circuits, the Supreme Court will likely be asked to announce a uniform definition of “covered offense.” The fate of convicted defendants hoping for relief will be largely determined by which side of that still-to-be-determined definition their conviction happens to fall.

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