United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE
Kasp filed a petition pursuant to 28 U.S.C. § 2255. R.
1. He has also filed motions for an evidentiary hearing and
subpoena duces tecum arguing that the government withheld
exculpatory documents. R. 3. For the following reasons,
Kasp's petition and motions are denied.
confidential source informed Chicago Police that Kasp was the
source's heroin dealer. R. 1 at 66. The source was
directed to record a phone conversation with Kasp.
Id. at 66-67. During this conversation, Kasp agreed
to meet the source to sell drugs to the source. Id.
When he arrived to meet the source, Kasp was arrested by
Chicago Police officers. Id. at 67. The officers
searched him and discovered heroin in his pocket.
Id. After Kasp was arrested, police searched his
home and discovered a gun, five pounds of marijuana, cash
hidden behind a refrigerator, and drug trafficking
paraphernalia, including a vacuum sealer, money counter, and
three digital scales. See 11 CR 920, R. 30 at 5-6.
jury subsequently indicted Kasp on charges of possession with
intent to distribute heroin and marijuana and being a felon
in possession of a gun. See 11 CR 920, R. 9. Kasp
filed a motion to suppress as evidence the heroin found in
his pocket, arguing the officers did not have probable cause
to search him. See 11 CR 920, R. 25. Kasp also filed
a supplemental affidavit in support of this motion.
See 11 CR 920, R. 39. In his supplemental affidavit,
Kasp denied he had agreed to conduct a drug transaction with
the source, claiming that he agreed to meet the source to
discuss a future transaction. Id. at 3. Judge Grady
(previously assigned to the case) denied the motion.
See 11 CR 920, R. 42.
eventually pled guilty to possession with intent to sell
heroin and being a felon in possession of a gun. See
11 CR 920, R. 84. The plea agreement included an affirmation
that Kasp had agreed to meet the source to sell drugs when he
was arrested. Id. at 3.
sentencing, the Court imposed an obstruction of justice
enhancement based on the supplemental affidavit Kasp
submitted in support of his motion to suppress. Kasp's
counsel objected to the enhancement arguing that Kasp's
statement in the affidavit “makes no sense” and
is immaterial because even if Kasp was only meeting the
source to plan a future drug deal, the police officers still
had justification to search him. See 11 CR 920, R.
88 at 3-4. The Court rejected this argument, and sentenced
Kasp to 97 months in prison and four years of supervised
release. See 11 CR 920, R. 94.
appealed his sentence reiterating the argument that the
statements in his supplemental affidavit were immaterial and
did not justify an obstruction enhancement. See 11
CR 920, R. 118. The Seventh Circuit affirmed Kasp's
sentence. Id. at 6. Kasp subsequently petitioned
this Court for a reduction of his sentence, and his period of
incarceration was reduced to 78 months. See 11 CR
920, R. 135. Kasp was released from prison on November 9,
2017. See Federal Bureau of Prisons inmate finder
website, https://www.bop.gov/inmateloc/ (last visited July 9
2018). Kasp filed this petition on November 2, 2015.
See 15 C 9884, R. 1.
Kasp's primary concern is that the investigation during
which he was arrested was not a joint federal investigation,
such that the Chicago Police officers who participated in the
investigation and arrest were bound by Illinois's
requirement for two-party consent to record a phone,
see 720 ILCS 5/14-2, making the recording and
subsequent arrest illegal. See R. 1 at 59. Kasp
seeks an evidentiary hearing to determine whether the
investigation was a joint city and federal investigation such
that the Illinois statute would not apply, as the government
argues. Id. at 26; R. 3. Kasp also argues (1)
“that his constitutional right to effective assistance
of counsel was violated, ” R. 1 at 3; (2) “that
the federal courts did not have the requisite jurisdiction to
hear this matter, ” id.; (3) his indictment
was defective because it was not signed and he was not given
the chance to appear before the grand jury, id. at
33; and (4) that his plea is invalid because it contains a
waiver of the right to challenge effective assistance of
counsel, id. at 6.
initial matter, Kasp's arguments that the Court lacks
jurisdiction, that his indictment is defective, and that his
plea agreement is invalid, are all frivolous. As the
government noted in its brief, the Seventh Circuit has
“repeatedly rejected” arguments challenging the
jurisdiction of federal district courts to adjudicate crimes.
See United States v. Benabe, 654 F.3d 753, 767 (7th
Cir. 2011) (citing United States v. Phillips, 326
Fed. App'x 400, at *1 (7th Cir. 2009) (describing as
frivolous the argument that the court lacked jurisdiction in
a criminal case, because “a district court has personal
jurisdiction over any defendant brought before it on a
federal indictment charging a violation of federal
law”)). Kasp's challenge to the Court's
jurisdiction is frivolous.
Kasp's claim that his indictment was defective, the
Seventh Circuit has held that such arguments are not a basis
to challenge a guilty plea. See United States v.
Aguirre, 697 Fed. App'x 870, 871 (7th Cir. 2017);
see also United States v. Sanchez, 533 Fed.
App'x 663, 665 (7th Cir. 2013) (“[An] unconditional
guilty plea waived any claim about defects in the
indictment.”). Additionally, Kasp does not have a right
to appear before the grand jury. See United States v.
Gardner, 516 F.2d 334, 339 (7th Cir. 1975). Thus, these
arguments are frivolous.
also argues that his plea agreement is invalid because it
included a waiver of ineffective assistance of counsel
claims. See R. 1 at 6. In addition to waiver of