U.S. Seventh Circuit - The FindLaw 7th Circuit Court of Appeals Opinion Summaries Blog

September 2009 News

Aguirre v. Turner Constr. Co., No. 08-3999

In plaintiff's tort case against defendant-general contractors arising from an injury sustained while working on renovation of Soldier Field, district court's failure to give a joint control instruction to the jury was a harmless error and the doctrine of res ipsa loquitur is a red herring in this case as the question is not whether and in what sense defendant controlled the scaffold, but whether it failed to make a timely inspection of it.  Here, this was a reasonable delegation of responsibility to the subcontractor, and so the general contractor did not breach its duty of care by not checking all the scaffolds when they were first assembled. 

Read Aguirre v. Turner Constr. Co., No. 08-3999

Appellate Information

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division

Argued June 2, 2009
Decided September 30, 2009

Judges

Before Posner, Kanne, and Ripple, Circuit Judges

Opinion by Posner, Circuit Judge

Cooney v. Rossiter, No. 08-3675

In plaintiff's case against several defendants arising from a custody case in which the Illinois state court found that she suffered from Munchausen syndrome by proxy, district court's dismissal of her suit is affirmed where: 1) guardians ad litem and court-appointed experts, including psychiatrists, are absolutely immune from liability for damages when they act at the court's direction; 2) no factual allegations tie the defendants, who are private individuals, to a conspiracy with a state actor; and 3) district court did not abuse its discretion in denying plaintiff's Rule 59(e) motion.    

Read Cooney v. Rossiter, No. 08-3675

Appellate Information

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division

Argued August 27, 2009
Decided September 30, 2009

Judges

Before Bauer, Posner, and Wood  Circuit Judges

Opinion by Posner, Circuit Judge

Krasilych v. Holder, No. 09-1026

Petition for review of the BIA's denial of a Ukrainian citizen's application for withholding of removal is denied as the exclusionary rule generally does not apply in removal proceedings, and here, petitioner obtained the I-551 stamp on his passport during an undercover investigation coordinated by immigration authorities. 

Read Krasilych v. Holder, No. 09-1026

Appellate Information

Petition for Review of an Order of the Board of Immigration Appeals

Argued September 16, 2009
Decided September 29, 2009

Judges

Before Flaum, Evans, and Sykes,  Circuit Judges

Per Curium Opinion

US v. White, No. 06-3574

In a consolidated appeals involving five defendants convicted for participating in a long-running conspiracy to distribute illegal drugs, district court's judgment is affirmed for the most part and remanded in part where: 1) a defendant sentenced to 292 months' imprisonment is entitled to a remand for resentencing in light of Kimbrough v. US, 128 S.Ct. 558 (2007), as the district court abused its discretion in treating the disparity between crack cocaine and powder cocaine as mandatory and the government could not show that the error was harmless; and 2) convictions and sentences of remaining defendants are affirmed.   

Read US v. White, No. 06-3574

Appellate Information

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division

Argued September 26, 2009
Decided September 29, 2009

Judges

Before RippleManion, and Sykes,  Circuit Judges

Opinion by Sykes, Circuit Judge

US v. Sutton, No. 08-3370

Sentence of defendant convicted of health care fraud in violation of 18 U.S.C. section 1347 to the statutory maximum of ten years' imprisonment followed by two years of supervised release is vacated and remanded as the district court erred in imposing the six-level adjustment because the guidelines are clear that monetary loss is required, and no such loss was suffered by the 2000-plus individuals whose identities were used by defendant to perpetuate his fraud.   

Read US v. Sutton, No. 08-3370

Appellate Information

Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division

Argued May 29, 2009
Decided September 28, 2009

Judges

Before Ripple, Rovner, and Sykes,  Circuit Judges

Opinion by Rovner, Circuit Judge

Barradas v. Holder, No. 08-3440

Petition for review of BIA's decision to remove a Mexican citizen and lawful permanent resident of the United States on the ground that he knowingly attempted to smuggle illegal aliens into the country is denied as there is reasonable, substantial, and probative evidence in the record to support the IJ's and BIA's conclusion that the government proved petitioner's conviction by clear, unequivocal, and convincing evidence. Petitioner's due process claims are rejected as there is substantial support the BIA's findings that he was afforded a full and fair opportunity to present his case before a neutral IJ.     

Read Barradas v. Holder, No. 08-3440

Appellate Information

Petition for Review of an Order of the Board of Immigration Appeals

Argued April 1, 2009
Decided September 23, 2009

Judges

Before Posner, Tinder, and  Evans,  Circuit Judges

Opinion by Tinder, Circuit Judge

US v. Katz, No. 08-2341

In a prosecution for possession of firearm by a felon, district court's denial of defendant's motions for judgment of acquittal and for a new trial is reversed and remanded for the district court to enter a judgment of acquittal on the felon-in-possession count as the evidence was not sufficient to support the verdict. 

Read US v. Katz, No.  08-2341

Appellate Information

Appeals from the United States District Court for the Central District of Illinois.

Argued February 13, 2009
Decided September 22, 2009

Judges

Before Kanne, Rovner, Evans,  Circuit Judges

Opinion by Rovner, Circuit Judge

US v. Simmons, No. 08-2400

Sentence and conviction of defendant for drug related crimes is affirmed where: 1) district court did not abuse its discretion in denying defendant's request for new appointed counsel as the court addressed his motion in a manner fully consistent with the three-part inquiry set forth in settled case law; 2) admission of video recordings of controlled buys did not violate the Confrontation Clause as they were not offered for their truth and were not testimonial; 3) evidence was adequate to support the jury's finding that defendant possessed a gun found; 4) video was not ambiguous in showing that the person captured on video distributing heroin was defendant; 5) district court did not commit clear error in finding that cash found in a house was the product of heroin sales when applying an enhancement; and 6) the sentence imposed was reasonable. 

Read US v. Simmons, No. 08-2400

Appellate Information

Appeals from the United States District Court for the Northern District of Indiana, Hammond Division.

Argued January 13, 2009
Decided September 18, 2009

Judges

Before Bauer, Posner, and Rovner,  Circuit Judges

Opinion by Rovner, Circuit Judge

Black v. Long Term Disability Ins., No. 07-3550

In plaintiff's suit against the underwriter of her benefits plan under ERISA for denial of long-term disability benefits, district court's grant of summary judgment in favor of defendant is affirmed as, under the arbitrary and capricious standard of review, the defendant's decision was rational and supported by the record.       

Read Black v. Long Term Disability Ins., No. 07-3550

Appellate Information

Appeals from the United States District Court for the Eastern District of Wisconsin.

Argued May 28, 2009
Decided September 18,009

Judges

Before Evans, Williams, and Tinder, Circuit Judges

Opinion by Williams, Circuit Judge

In a dispute arising from a transaction between a co-op, insurer and a surety involving a leveraged lease of a power station over a 63-year period, district court's grant of temporary injunction is affirmed as it did not err in concluding that co-op's claim was sufficient for the limited purpose of the temporary injunction.    

Read Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., No. 08-4030

Appellate Information

Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division.

Argued January 5, 2009
Decided September 17, 2009

Judges

Before Easetbrook, Chief Judge, and Kanne and Wood, Circuit Judges

Opinion by Easterbrook, Chief Judge

Nzeve v. Holder, No. 08-3455

BIA's denial of a Zimbabwe national and his wife's petition for asylum and related relief is affirmed where: 1) the record does not compel a conclusion that petitioner suffered a past persecution nor that petitioner's fear of future persecution is objectively reasonable; and 2) as petitioner failed to satisfy the lower burden of proof required for asylum, he cannot prove that it is more likely than not that his freedom would be threatened on account of a protected ground if he was returned to Zimbabwe.      

Read Nzeve v. Holder, No. 08-3455

Appellate Information

Petition for Review from an Order of the Board of Immigration Appeals. 

Argued April 6, 2009
Decided September 17, 2009

Judges

Before Bauer, Sykes and Tinder, Circuit Judges

Opinion by Bauer, Circuit Judge

US v. Haynes, No. 08-1466

Sentence and conviction of multiple defendants for drug conspiracy and related crimes involving corrupt police officers is affirmed where:  1) defendants did not offer evidence to prove a variance between the conspiracy charged and that proven, and the evidence presented by the government was sufficient to establish defendants' participation in the overall conspiracy; 2) defendant's section 924(c) conviction is supported by sufficient evidence that he carried a firearm during and in relation to the the attempted ripoff; 3) district court did not err in denying a defendant's motion for judgment of acquittal and motion for a new trial based on evidence of quantity of drugs; 4) defendant's conviction under section 924(c) is affirmed as it was reasonably foreseeable that a co-conspirator would have used a weapon during the ripoff; 5) district court did not clearly err in finding that defendant was not entitled to a minor role reduction in his offense level; and 6) district court did not commit clear error in applying a four-level enhancement for use of body armor.    

Read US v. Haynes, No. 08-1466

Appellate Information

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. 

Argued June 5, 2009
Decided September 17, 2009

Judges

Before Posner, Manion, and Tinder, Circuit Judges

Opinion by Tinder, Circuit Judge

US v. Arthur, No. 07-1052

Conviction of defendant and his wife for bankruptcy fraud and related crimes is affirmed where: 1) wife's conviction is supported by sufficient evidence; 2) defendant's constitutional claims are without merit as district court's conclusion that the marital agreements were fraudulent was well-founded; 3) defendant lacks standing to raise a Sixth Amendment ineffective assistance of counsel claim on behalf of his wife; and 4) district court did not err in using defendant's prior state court judgment to increase his base offense level.   

Read US v. Arthur, No. 07-1052

Appellate Information

Appeals from the United States District Court for the Eastern District of Wisconsin.

Argued May 26, 2009
Decided September 17, 2009

Judges

Before Easterbrook, Chief Judge, and Bauer and Posner, Circuit Judges

Opinion by Bauer, Circuit Judge

Patel v. Holder, No. 08-3067

Petition for review of BIA's denial of Indian national's application for withholding of removal is denied and dismissed in part where:  1) petitioner's request for continuance is dismissed for lack of jurisdiction and in the alternative denied for lack of merit; 2) BIA's finding that petitioner did not have a well-founded fear of persecution was supported by reasonable, substantial, and probable evidence; and 3) petitioner's claim of ineffective assistance of counsel is dismissed for lack of jurisdiction.     

Read Patel v. Holder, No. 08-3067

Appellate Information

Petition for Review from an Order of the Board of Immigration Appeals. 

Argued April 14, 2009
Decided September 16, 2009

Judges

Before Kanne, Rovner, and Wood, Circuit Judges

Opinion by Wood, Circuit Judge

Twenhafel v. State Auto Prop. & Cas. Ins. Co., No. 08-4275

In plaintiff's suit against his insurance company for breach of a policy, district court's judgment in favor of plaintiff is affirmed in most part where:  1) district court's ruling on the issue of liability is affirmed as it properly found that plaintiff's wood inventory was not "in the open" when it was damaged because it was securely covered by a tarp and not left exposed to the elements; 2) district court did not err in awarding damages as defendant failed to produce evidence that contradicted plaintiff's affidavit regarding the value of the wood inventory; and 3) district court abused its discretion in awarding plaintiff prejudgment interest at the rate of 6.98% as nothing in the record support a rate of interest in excess of the statutory rate of 5%, and thus such award is vacated.     

Read Twenhafel v. State Auto Prop. & Cas. Ins. Co., No. 08-4275

Appellate Information

Appeal from the United States District Court for the Southern District of Illinois 
Argued May 14, 2009
Decided September 14, 2009

Judges

Before Rovner and Evans, Circuit Judges, and Van Bokkelen, District Judge 

Opinion by Van Bokkelen, District Judge

US v. Wilburn, No. 08-1541

District court's denial of defendant's motion to suppress evidence found in his apartment is affirmed where: 1) defendant was not deprived of a fair Franks hearing as the district court's evidentiary rulings on defendant's questions regarding a confidential informant and a tipster were either within the court's discretion or did not have a material effect on the outcome of the proceeding; and 2) the district court was correct in finding that adequate probable cause supported the warrant.     

Read US v. Wilburn, No. 08-1541

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Western Division
Argued April 8, 2009
Decided September 14, 2009

Judges

Before Easterbrook, Chief Judge, and Kanne and Williams, Circuit Judges 

Opinion by Williams, Circuit Judge

Sutherland v. Gaetz, No. 08-1404

District court's denial of a petition for habeas relief of a defendant convicted of attempted first degree murder and related crimes is affirmed as overnight incarceration of defendant's counsel for contempt during trial did not violate defendant's Sixth Amendment right to counsel nor was it a constructive denial of counsel.  District court's denial of defendant's petition on ground of res judicata was neither contrary to, nor did it involve an unreasonable application of Supreme Court precedent.     

Read Sutherland v. Gaetz, No. 08-1404

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division
Argued May 15, 2009
Decided September 14, 2009

Judges

Before Easterbrook, Chief Judge, and Bauer and Flaum, Circuit Judges 

Opinion by Flaum, Circuit Judge

US v. Edwards, No. 08-1124

Sentence and conviction of a defendant for distributing illegal drugs is affirmed in part and vacated in part and remanded where: 1) the practical question is not whether Miranda warnings given to a defendant became "stale" or whether the "totality of the circumstances" indicates that the inculpatory statement was made knowingly, it is whether the defendant when he gave the statement didn't realize he had a right to remain silent, and here, the Miranda form told defendant that he had the right to remain silent and the presumption should be that he would remember this even if some time had elapsed between his receiving the warnings and undergoing the questioning that elicited the inculpatory statement; 2) district court did not abuse its discretion in admitting defendant's prior conviction for selling drugs as it was relevant to an issue in the case and the probative weight of the evidence was not substantially outweighed by its prejudicial effect or by its propensity to confuse or mislead the jury; 3) prosecutor did not commit improper vouching of witness; 4) prosecutor's rhetorical question regarding the testimony of an officer was improper vouching but harmless; and 5) defendant's sentence is vacated as the district judge gave no reason for his belief that the $765 found on defendant had to be proceeds from selling crack.   

Read US v. Edwards, No. 08-1124

Appellate Information

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division
Argued May 6, 2009
Decided September 14, 2009

Judges

Before Easterbrook, Chief Judge, and Posner and Wood, Circuit Judges 

Opinion by Posner, Circuit Judge

Bissessur v. Indiana Univ. Bd. of Trustees, No. 08-3504

Dismissal of plaintiff's action against the Indiana University School of Optometry arising from his expulsion from the school is affirmed as the court correctly concluded that plaintiff failed to point to any specific promise that the university made which established that plaintiff might have had an entitlement to a continuing education or any other entitlement. As such, plaintiff's complaint failed to contain enough information to state a legally cognizable claim. 

Read Bissessur v. Indiana Univ. Bd. of Trustees, No. 08-3504

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division
Argued February 25, 2009
Decided September 11, 2009

Judges

Before Flaum, Williams, and Tinder, Circuit Judges 

Opinion by Williams, Circuit Judge

Suarez v. Town of Ogden Dunes, No. 08-2544

In plaintiffs' section 1983 action arising from a search of their home and arrests for contributing to the delinquency of a juvenile, resisting arrest and battery of a law enforcement officer, district court's judgment is affirmed where:  1) summary judgment for defendants was appropriate as plaintiffs failed to establish that any statement in an affidavit in support of a search warrant was an intentional or reckless misrepresentation or omission; 2) because there was probable cause for the search warrant, plaintiffs' argument that their arrests were illegal fails; and 3) district court did not abuse its discretion in excluding the earlier portion of the police activity recordings as it would have confused the jury on the issue of excessive force.  

Read Suarez v. Town of Ogden Dunes, No. 08-2544 

Appellate Information

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division
Argued February 25, 2009
Decided September 11, 2009

Judges

Before Flaum, Williams, and Tinder, Circuit Judges 

Opinion by Tinder, Circuit Judge

US v. Simmons, No. 08-2207

Sentence and conviction of defendant for conspiracy, armed bank robbery and use of a firearm during a crime of violence is affirmed where:  1) for purposes of a bank robbery count, sufficient evidence existed for a jury to find that bank teller's life was in jeopardy when co-conspirator pointed an unloaded gun at the teller; 2) as to the firearm count, it was foreseeable to the defendant that the robbery would have involved the use of a firearm; 3) district court did not abuse its discretion in denying defendant's request for a mistrial after the government displayed a demonstrative chart with defendant's mug shot in its closing argument, as the brief glimpse of the photograph did not deprive defendant of a fair trial; 4) district court did not abuse its discretion in failing sua sponte to order a mistrial, as prosecution's statement in its closing argument was not improper vouching of co-conspirators; and 5) application of an enhancement based on abduction was proper as there was sufficient evidence to support that abduction took place and was foreseeable.     

Read US v. Simmons, No. 08-2207

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin
Argued February 25, 2009
Decided September 11, 2009

Judges

Before Flaum, Williams, and Tinder, Circuit Judges 

Opinion by Tinder, Circuit Judge

McGowan v. Deere & Co., No. 07-2967

In an employment and race discrimination action against Deere & Company (Deere) under Title VII and section 1981, district court's grant of defendant's motion for summary judgment is affirmed where plaintiff failed to make out a prima facie case of racial discrimination because he was unable to demonstrate that a similarly situated person not in the protected class was treated more favorably than he was. Further, even if plaintiff could make out a prima facie case of race discrimination, he has not demonstrated that Deere intentionally discriminated against him because of his race.    

Read McGowan v. Deere & Co., No. 07-2967

Appellate Information

Appeal from the United States District Court for the Central District of Illinois

Argued May 7, 2009
Decided September 11, 2009

Judges

Before Flaum and Williams, Circuit Judges, and Lawrence, District Judge 

Opinion by Lawrence, District Judge

US v. Statham, No. 08-2676

Sentence of defendant for conspiracy to buy, sell and transport firearm from Mississippi to streets of Chicago is affirmed as the district court did not clearly err, based on factual findings, in increasing the offense level in calculating the Guidelines range to the statutory maximum. District court did not abuse its discretion by ordering defendant to serve two consecutive sentences and imposition of a sentence that was different from that received by co-defendants was not unreasonable. 

Read US v. Statham, No. 08-2676

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division
Argued May 6, 2009
Decided September 10, 2009

Judges

Before Easterbrook, Chief Judge, and Posner and Wood, Circuit Judges 

Opinion by Wood, Circuit Judge

Buchmeier v. US, No. 06-2958

An enhanced sentence of defendant to 188 months' imprisonment as an armed career criminal following four firearm convictions is vacated and remanded where, because the state of Illinois sent defendant a document stating that his principal civil rights have been restored, while neglecting to mention the continuing firearms disability, the final sentence of 18 U.S.C. section 921(a)(20) means that his burglary convictions do not count for federal purposes.     

Read Buchmeier v. US, No. 06-2958

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division
Argued March 5, 2008 
Decided September 10, 2009

Judges

Before Easterbrook, Chief Judge, and Posner, Manion, Kanne, Rovner, Wood, Evans, Williams, Sykes, and Tinder, Circuit Judges 

Opinion by Easterbrook, Chief Judge

New Albany DVD, LLC v. City of New Albany, Indiana, No. 05-1286

In plaintiff's suit under 42 U.S.C. section 1993 against the city of New Albany that its ordinance regulating adult establishments violates his First Amendment rights, district court's judgment is reversed and remanded where the injunction remains but should not have been issued on the ground that the ordinance is not narrowly tailored.  Therefore, on remand, the court should take evidence of secondary effects caused by adult establishments that only carry books and DVDs and apply intermediate scrutiny to the ordinance. 

Read New Albany DVD, LLC v. City of New Albany, Indiana, No. 05-1286

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, New Albany Division
Argued September 26, 2005
Decided September 10, 2009

Judges

Before Easterbrook, Chief Judge, and Ripple and Rovner, Circuit Judges 
Opinion by Easterbrook, Chief Judge

Myles v. Astrue, No. 08-2908

District court's judgment upholding the ALJ's rejection of plaintiff's claim for disability insurance benefits is vacated and remanded in light of ALJ's questionable credibility findings, cursory analysis of symptoms, improper medical determination regarding medication, and selective discussion of the evidence.  ALJ's determination that plaintiff is not disabled due to her Type 2 diabetes is not supported by substantial evidence.     

Read Myles v. Astrue, No. 08-2908

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division
Argued April 22, 2009
Decided September 9, 2009

Judges

Before Manion,  Sykes and Kanne, Circuit Judges 

State of Michigan v. US Envtl. Prot. Agency, No. 08-2582

Michigan's petition for review of the EPA's final ruling redesignating the Forest County Potawatomi Community lands to Class I status and issuing two companion announcements concluding dispute resolution proceedings with Wisconsin and Michigan is dismissed as Michigan failed to allege a cognizable injury in fact and thus lacks standing where:  1) Michigan may not establish standing by simply identifying a procedural defect in the redesignation process; 2) even if assuming that Michigan is the injured party, there is no evidence in the record indicating that the new restrictions affect Michigan directly; and 3) Michigan's argument that the redesignation creates numerous complications and unworkable conflicts in its air pollution programs is outside the scope of the court's review.     

Read State of Michigan v. US Envtl. Prot. Agency, No. 08-2582

Appellate Information

Petition for Review of the Final Administrative Rulings of the United States Environmental Protection Agency
Argued March 30, 2009
Decided September 9, 2009

Judges

Before Kanne, Wood, and WIlliams, Circuit Judges 

US v. Woods, No. 08-1778

In a consolidated appeal of a denial of three defendants' motions to modify their sentences pursuant to 18 U.S.C. section 3582(c)(2), denial of the motions is affirmed where: 1) defendants did not give up their right to appeal the denial of the motions as section 3582(c)(2) motions do not fall within the appeal waiver's scope; and 2) the district court did not err in finding the defendants ineligible for a reduction where the court did not make findings inconsistent with those of the original sentencing court and it did not abuse its discretion in light of the large quantity of drugs involved and in finding that the defendants were responsible for more than 4.5 kg of crack each. 

Read US v. Woods, No. 08-1778

Appellate Information

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division
Argued December 4, 2008
Decided September 9, 2009

Judges

Before Bauer, Posner, and Williams, Circuit Judges 

US v. Perez, No. 07-2375

District court's enhanced sentencing of a defendant convicted of drug possession during a traffic stop, based on other drugs found at defendant's home, is affirmed where: 1) district court's refusal to apply the exclusionary rule to evidence found in defendant's home was not clear error based on lack of any evidence to support defendant's bare assertion of misconduct; 2) district court did not clearly err in finding that the drugs seized from defendant's home were part of the same common scheme or plan as the offense for which he was convicted, and thus, the drugs were properly used to enhance his sentence; 3) district court did not err in applying the enhancement under section 2D1.1(b)(1) based on a firearm found at defendant's home, as there was sufficient evidence to support a conclusion that defendant had constructive possession of the gun found at his home and that the gun was used in connection with his drug activity; and 4) sentence was reasonable as it was at the low end of the applicable guidelines range.   

Read US v. Perez, No. 07-2375

Appellate Information

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division
Argued January 20, 2009
Decided September 9, 2009

Judges

Before Easterbrook, Chief Judge, Sykes, Circuit Judge, and Kendall, District Judge 

Harper v. Sheriff of Cook County, No. 08-3413

District court's certification of a class action lawsuit involving challenges to the constitutionality of certain intake procedures at a county jail is vacated as the intake procedures detainees are required to undergo on remand to the Sheriff's custody after a probable cause hearing are an individual issue and thus, not appropriate for class disposition. The matter is remanded for resolution of plaintiff's individual claims.   

Read Harper v. Sheriff of Cook County, No. 08-3413

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division
Argued April 6, 2009
Decided September 8, 2009

Judges

Before Bauer, Sykes and Tinder, Circuit Judges 

US v. Johnson, No. 08-3541

District court's sentence and conviction of defendant on drug related offenses is affirmed where: 1) district court did not err in denying defendant's request for a Franks hearing to determine the veracity of the warrant as defendant has not established that any of the alleged falsities in officer's affidavit were made intentionally or recklessly; and 2) district court did not err in using other mitigating factors to further reduce defendant's sentence, as section 3553(e) prohibited the district court from reducing his sentence for any factor beyond his substantial assistance to the government. 

Read US v. Johnson, No. 08-3541

Appellate Information

Appeal from the United States District Court for the Central District of Illinois.
Argued May 11, 2009
Decided September 4, 2009

Judges

Before Cudahy, Posner and Kanne, Circuit Judges 

Lewis v. Downey, No. 08-2960

District court's grant of summary judgment to multiple defendants involved in a civil rights case brought by a federal prisoner alleging cruel and unusual punishment in violation of the Eighth Amendment and other constitutional violations is affirmed in part and reversed in part where: 1) officer Ayala's dismissal from the lawsuit was appropriate, as he cannot be liable for failing to respond to other officer's use of the taser gun where there was no realistic opportunity to intervene; 2) it is unlikely that the defendant who was awaiting sentencing and the entry of final judgment had yet accrued Eighth Amendment protections, where at the time of relevant events, plaintiff was neither a pretrial detainee nor a sentenced prisoner, and thus, the basis for plaintiff's section 1983 action should have been the Fourteenth Amendment Due Process Clause; 3) in evaluating plaintiff's claims under the Fourteenth Amendment, insofar as the alleged conduct would have violated the Eighth Amendment, district court's grant of summary judgment in favor of officer Shreffler was improper, as plaintiff has raised a genuine issue of material fact regarding Shreffler's mental state at the time he discharged the taser; 4) officer Shreffler is not entitled to qualified immunity; and 5) plaintiff's Fourteenth Amendment Due Process claim that arose from his placement in segregation without a hearing is dismissed. 

Read Lewis v. Downey, No. 08-2960

Appellate Information

Appeal from the United States District Court for the Central District of Illinois.
Argued March 30, 2009
Decided September 4, 2009

Judges

Before Kanne, Wood and Williams, Circuit Judges 

Ciciora v. CCAA, Inc., No. 08-1099

In a personal injury action, district court's grant of defendants' motion for summary judgment is affirmed where: 1) district court properly granted summary judgment to defendant-business owner, as plaintiff has not presented any evidence that the fall was a result of an unnatural accumulation of ice or an aggravation of an existing condition; 2) district court properly granted summary judgment to defendant-property owner, as mere presence of snow and ice does not demonstrate negligence; and 3) there is no evidence that the ice was anything other than a natural accumulation, and as the duty to maintain a safe ingress and egress does not include the removal of natural accumulations of ice, there is no viable claim here. 

Read Ciciora v. CCAA, Inc., No. 08-1099

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued February 13, 2009
Decided September 4, 2009

Judges

Before Kanne, Rovner, and Evans, Circuit Judges 

US v. Plummer, No. 07-4032

District court's sentencing and conviction of defendants for conspiracy with intent to distribute drugs is affirmed where: 1) defendants' argument, that the district court failed to instruct the jury regarding freebase cocaine and that 21 U.S.C. section 841 is void for vagueness, is rejected as there is no language in the statute setting a minimum purity level in order for a substance to be considered crack cocaine; and 2) defendants' remaining claims that they were denied a fair trial are without merit. 

Read US v. Plummer, No. 07-4032

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued December 10, 2008
Decided September 4, 2009

Judges

Before Posner,Kanne and Rovner, Circuit Judges 

US v. Noel, No. 07-2468

District court's sentence and conviction of defendant for producing and possessing child pornography is affirmed where: 1) district court erred in admitting detective's testimony, as it was unhelpful to the jury as lay testimony and inadmissible under Rule 701(b), but the conviction is affirmed because the error did not affect defendant's substantial rights; 2) for the same reasons that detective's testimony does not merit reversal, nor does the Dost instruction, as the outcome of the trial would not have been different without it; 3) district court's sentence was reasonable under the Guidelines, as evidenced by the fact that it was actually twenty years below the guidelines sentence of one hundred years' imprisonment; and 4) although the district court committed plain err in denying defendant right to a meaningful allocution, the sentence is affirmed because the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. 

Read US v. Noel, No. 07-2468

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Argued April 8, 2009
Decided September 4, 2009

Judges

Before Easterbrook, Chief Judge, and Kanne and Williams, Circuit Judges 

Gotham Holdings, LP v. Health Grades, Inc., No. 09-2377

In a case involving a subpoena to turn over certain documents exchanged in an arbitration, judgment directing third party to produce the documents and issuing a stay pending defendant's appeal is affirmed where: 1) paragraph 6 of the agreement between defendant and third party provides that materials from the arbitration may be disclosed in response to a subpoena; and 2) even if the agreement had purported to block disclosure, such a provision would be ineffectual as contracts bind only parties and no one can agree with someone else that a stranger's resort to discovery under the Federal Rules of Civil Procedure will be cut off. 

Read Gotham Holdings, LP v. Health Grades, Inc., No. 09-2377

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued August 28, 2009
Decided September 3, 2009

Judges

Before Easterbrook, Chief Judge, and Williams and Sykes, Circuit Judges

Annex Books, Inc. v. City of Indianapolis, Ind., No. 05-1926

In a case by four firms defined as "adult entertainment businesses" under a revised Indianapolis ordinance alleging that the ordinance violates their First and Fourth amendment rights, judgment of the district court is affirmed to the extent that it sustained the licensing procedures but is reversed to the extent it concerns the coverage and substantive requirements. The case is remanded for an evidentiary hearing to determine whether the city has evidence that the restrictions actually have public benefits great enough to justify any curtailment of speech. Here, none of the studies on which the city relied before enacting the law, and none introduced in the record, concerned that kind of ordinance, nor did the studies show that an increase in adult businesses' operating hours is associated with more crime. Because books (even of the "adult" variety) have a constitutional status, and laws requiring the closure of bookstores at night and on Sunday are likely to curtail sales, the public benefits of the restrictions must be established by evidence, and not just asserted. 

Read Annex Books, Inc. v. City of Indianapolis, Ind., No. 05-1926

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Argued September 8, 2005
Decided September 3, 2009

Judges

Before Easterbrook, Chief Judge, and Flaum and Rovner, Circuit Judges 

US v. Anderson, No. 08-2925

District court's sentence and conviction of defendant for multiple crimes related to a fraudulent telemarketing scheme is affirmed where:  1) the evidence presented at trial was sufficient to support the jury's verdict that defendant acted with knowledge of a telemarketing company's fraudulent activity and with the specific intent to defraud telemarketing company's victims; 2) district court did not clearly err in applying the manager-or-supervisor enhancement as supported by evidence of defendant's involvement and control over the scheme; and 3) defendant failed to overcome the presumption that his below-guidelines sentence is reasonable.       

Read US v. Anderson, No. 08-2925

Appellate Information

Appeal from the United States District Court for the Southern District of Illinois

Argued May 5, 2009
Decided September 3, 2009

Judges

Before Ripple and Sykes, Circuit Judges, and Lawrence, District Judge. 

Thomas v. City of Peoria, No. 08-2918

In a civil rights action against the city of Peoria under 42 U.S.C. section 1983 arising from an arrest on mistaken identity, district court's judgment is affirmed where: 1) plaintiff's argument depends on incorporating the state and local protections of parking violators from arrest into the Fourth Amendment, and he is not within those protections; 2) plaintiff's due process claim fails under his argument that the city deprived him of liberty by arresting him without having notified him that a failure to pay parking tickets might lead to an arrest, but since he didn't fail to pay his parking tickets, the notice could not have helped him; and 3) even if the prosecutor violated plaintiff's rights in filing the motion that led to his arrest, she has absolute immunity from liability to pay damages for consequences while performing prosecutorial duties.  

Read Thomas v. City of Peoria, No. 08-2918

Appellate Information

Appeal from the United States District Court for the Central District of Illinois.
Argued April 13, 2009
Decided September 2, 2009

Judges

Before Cudhay, Posner, and Tinder, Circuit Judges 

Darchak v. City of Chicago Bd. of Educ., No. 08-2732

In an employment discrimination case, grant of defendant-board of education's motion for summary judgment is affirmed in part and reversed in part where: 1) district court did not err in dismissing plaintiff's retaliatory discharge claim as this does not cover renewal of a fixed-term employment contract; 2) plaintiff's retaliatory discharge claim fails for another reason because the nonrenewal of her contract did not violate a clear mandate of public policy; 3) district court correctly dismissed plaintiff's First Amendment retaliation claim as she failed to demonstrate that the board either delegated final policymaking authority to her supervisor or ratified their actions; but 4) for purposes of a national origin discrimination claim, plaintiff demonstrated triable issues as to whether the discrimination motivated the adverse employment action based on circumstantial evidence of her supervisor's racist remarks and nonrenewal of her contract based on his recommendation.  

Read Darchak v. City of Chicago Bd. of Educ., No. 08-2732

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 27, 2009
Decided September 2, 2009

Judges

Before Ripple, Cudhay and Wood, Circuit Judges 

Morales v. Boatwright, No. 08-1153

In habeas proceedings arising from petitioner's conviction of first degree sexual assault of a child, defendant's petition for habeas relief is timely as his second section 974.06 motion did toll the time for filing this appeal.  However, denial of habeas relief is affirmed where: 1) the district court did not err in dismissing defendant's claim of ineffective assistance of counsel as he suffered no prejudice because the potential outcome at trial would have been the same; 2) it correctly concluded that defendant should be able to collaterally attack the performance of his counsel if he had no real opportunity to raise the issue on direct appeal; and 3) district court correctly dismissed defendant's remaining ineffective assistance claims as his pleas were knowingly, voluntarily and intelligently entered, and objective evidence reveals that defendant would have accepted the plea deal even if he were aware of the truth-in-sentencing consequences of his crime.  

Read Morales v. Boatwright, No. 08-1153

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin.
Argued January 8, 2009
Decided September 2, 2009

Judges

Before Easterbrook, Chief Judge, Evans and Tinder, Circuit Judges 

US v. Monroe, No. 08-2945

District court's sentence of a defendant convicted of drug possession with intent to distribute is affirmed where, although under the terms of the plea agreement defendant did not waive his right to seek a reduction in the length of the sentence under 18 U.S.C. section 3582(c)(2), defendant was ineligible to seek a sentence reduction because the "starting point" for defendant's sentence was the statutory, mandatory minimum sentence. Such minimum sentence was not reduced or otherwise affected by Amendment 706, which impacted only his base offense level, not his sentencing range. 

Read US v. Monroe, No. 08-2945

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Argued January 15, 2009
Decided September 1, 2009

Judges

Before Ripple, Manion, and Evans, Circuit Judges 
Opinion by Ripple, Circuit Judge.

Mach v. Will County Sheriff, No. 08-2907

In an employment and age discrimination action against the County Sheriff, district court's judgment in favor of defendant is affirmed where: 1) district court was correct in granting summary judgment to the defendant as the record does not support plaintiff's ADEA claim as he failed to produce direct or circumstantial evidence that the Sheriff transferred him because of his age; and 2) district court did not abuse its discretion in awarding attorney's fees and costs to the defendant in concluding that plaintiff litigated part of his lawsuit in bad faith.     

Read Mach v. Will County Sheriff, No. 08-2907

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued May 28, 2009
Decided September 1, 2009

Judges

Before Bauer, Flaum, and Kanne, Circuit Judges 
Opinion by Kanne, Circuit Judge.

US v. Winbush, No. 08-1602

District court's sentence and conviction of defendant on five drug-related crimes is affirmed where: 1) district court did not err by denying defendant's motion to retain a fingerprint expert as not only was defendant's motion untimely, but also unnecessary for his defense; 2) district court properly admitted agent's testimony regarding attributes of drug trafficking as the testimony was general in nature and not prejudicial; and 3) court did not commit clear error in calculating defendant's base offense and criminal history levels.     

Read US v. Winbush, No. 08-1602

Appellate Information

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Argued April 14, 2009
Decided September, 2009

Judges

Before Kanne, Rovner, and Wood, Circuit Judges 
Opinion by Kanne, Circuit Judge.

US v. Zahursky, No. 08-1151

District court's conviction and sentence of a defendant convicted of attempting to coerce or entice a minor to engage in sexual activity is affirmed in part and reversed in part where: 1) district court's denial of defendant's motion to suppress was proper as the record establishes probable cause to search defendant's vehicle, and thus the warrantless search was justified under the automobile exception; 2) district court did not abuse its discretion in admitting any of the Rule 404(b) evidence; and 3) district court erred in applying an enhancement for unduly influencing a minor under U.S.S.G. section 2G1.3(b)(2)(B), and this error was not harmless as there was no firm assurance from the district court that it would impose the same sentence even if its application of the two-level enhancement was erroneous. 

Read US v. Zahursky, No. 08-1151

Appellate Information

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Argued May 8, 2009
Decided September 1, 2009

Judges

Before Cudhay, Manion, and Tinder, Circuit Judges 
Opinion by Tinder, Circuit Judge.

US v. Garcia, No. 07-3964

In a consolidated appeal involving a widespread drug conspiracy, defendants' convictions and sentences are affirmed where: 1) district court's conviction of defendant-Alvarez is supported by sufficient evidence from which the jury could have found that defendant conspired to distribute narcotics; 2) court did not err in giving the jury "ostrich" instructions as it was an accurate statement of the law and evidence supported issuing such an instruction; 3) district court did not err in finding defendant-Alvarez to be a minor participant rather than a minimal one in granting her a two-level reduction in sentencing; court did not err in imposing a two-level increase to defendant-Alvarez's offense level for obstructing justice as the court found all of the elements of perjury; and the sentence was reasonable; 4) defendant-Decker waived his objection to the court's drug quantity calculation; and 5) defendant-Garcia has no non-frivolous issues for appeal and therefore his counsel's motion to withdraw is granted. 

Read US v. Garcia, No. 07-3964

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Argued February 26, 2009
Decided September 1, 2009

Judges

Before Bauer, Kanne, and Sykes, Circuit Judges 
Opinion by Kanne, Circuit Judge.

Auto-Owners Ins. Co. v. Websolv Computing, Inc. , No. 07-3286

In an insurance-coverage dispute involving the interpretation of an "advertising injury" clause in a commercial general liability policy, district court's judgment is reversed where Iowa law, and not Illinois law, applies in this case as the court was not required to apply the substantive law of the forum state in a diversity case, and the parties had stipulated that Iowa law should control their dispute.  Under Iowa law the insurance policy does not require plaintiff to defend defendant in the underlying suit.     

Read Auto-Owners Ins. Co. v. Websolv Computing, Inc. , No. 07-3286

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. 

Argued September 3, 2008
Decided September 1, 2009

Judges

Before Easterbrook, Chief Judge, and Cudahy and Sykes, Circuit Judges. 

Opinion by Sykes, Circuit Judge.