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

February 2010 News

Rulings in Criminal, Medicare Fraud, and Disability Benefits Cases

The Seventh Circuit decided two criminal matters and one case involving denial of disability benefits.

In US v. Phillips, No. 09-1262, the court faced a challenge to a conviction for Medicare fraud.  Defendant claimed that the district court erred by admitting a redacted recording of her conversation with undercover investigators after the government did not give her an unredacted version. She also claimed that the district court erred by admitting certain evidence that was produced close to trial, thereby not allowing her attorney to have a meaningful opportunity to examine them. 

In affirming the conviction, the court held that the district court was under no duty to review the recording defendant cannot show it would have likely changed the outcome of the trial.  Thus, the district court did not commit plain error in denying her motion to exclude.  Defendant's remaining contention is rejected as she explicitly instructed the court that one week would be enough time for her to review the late-produced evidence.

In US v. Sellers, No. 09-2037, the court faced a challenge to defendant's claim that the district court erred in denying him a two-level reduction in his sentence for acceptance of responsibility.

However, based on defendant's post-arrest phone call to his wife to warn his biggest buyer, plus a jail fight, the district court did not err in finding that these incidents were inconsistent with a sincere acceptance of responsibility for his crime.

Finally, in Denton v. Astrue, No. 09-3088, the court addressed an ALJ denial of claimant's application for disability benefits.  Although the claimant argued that the ALJ ignored the symptoms of her depression and other evidence in coming to the conclusion, the court affirmed the denial.  Based on the record, it showed that the ALJ assessed all relevant evidence, including her depression and related symptoms and finding of no disability was supported by substantial evidence.

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Ruling in Civil Rights Suit Against Park Officer

In Whitlock v. Brown, No. 08-2800, the Seventh Circuit faced a challenge to the district court's grant of a motion for qualified immunity to an officer with the Department of Natural Resources in plaintiffs' 42 U.S.C. section 1983 action.

The court described some of the circumstances giving rise to the case:

"Jo and Jesse Whitlock were camping at the Indiana Dunes State Park and found several bags and other items of property that looked as if they had been left behind at another campsite. They put the items in their truck, intending to turn them in to the park office. They then left the campground to run errands and forgot the bags were in their truck. By the time they returned a few hours later, the owner of the bags had reported them stolen. When the Whitlocks went to the park office to turn in the property, they were accused of theft."

Although the district court was correct to dismiss based on qualified immunity, it was granted on finding of probable cause to arrest. Instead, the constitutional question should have been, for purposes of qualified immunity inquiry,  whether it would have been clear to a reasonable officer that the information allegedly omitted was material to the probable cause determination. 

Here qualified immunity was appropriate as it is not clear, under Indiana law, whether the omitted information was material to the probable cause determination for a criminal conversion charge.

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Rulings in Criminal Cases

In US v. Hines, No. 08-3255, the Seventh Circuit faced a challenge to the district court's imposition of a 168 months' imprisonment on a defendant convicted of crack cocaine possesion and distribution.

In vacating defendant's sentence, the court concluded that the district court erred in inferring, without sufficient evidence presented by the prosecution, that defendant cooked into crack all 1.531 kilograms of powder that he bought to prove that he possessed at least 1.5 kilograms of crack to increase his guidelines sentencing range.

In US v. Napadow, No. 09-1920, the court faced a defendant's claim that his indictment for devising a scheme to defraud and obtain money from home inspectors should be dismissed because he  was denied right to a speedy trial.

Although 105 days had elapsed between defendant's first appearance before the district court and the first day of his trial, the court found that there had been no violation of the Speedy Trial Act as the pretrial motion and the ends-of-justice exclusions applied under the circumstances.

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Ruling Against Maker of Paxil in Suicide Case

In Mason v. Smithkline Beecham Corp., No. 08-2265, the Seventh Circuit faced a suit against the maker of the popular antidepressant Paxil brought by the parents of a 23-year-old who committed suicide two days after she started taking the drug.

The court of appeals, contrary to the ruling below, rejected the drug manufacturer's claim that plaintiffs' claims were preempted under federal law.

In light of the Supreme Court's decision in Wyeth v. Levine, 555 U.S. _, 129 S.Ct. 1187 (2009), the court stated: "Although the Court found that preemption did not exist in Levine, it held that there could be preemption if the manufacture met the stringent standard of proving that there was clear evidence the FDA would have rejected the proposed change in the drug's label."

Based on the extensive showing required by Levine, the court concluded that the defendant failed to meet its burden of demonstrating by clear and convincing evidence that the FDA would have rejected a label change warning about the risk of suicide in young adults.

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In Miller v. LaSalle Bank Nat'l Ass'n, No. 09-3013, the Seventh Circuit was required to interpret the legislative intent of a provision in the  2007 Amendment relating to recoding statutes, arising from an underlying bankruptcy proceeding involving a trustee's purchase of debtor's property with a recorded mortgage containing a technical defect.

As stated in the decision: "Given the obvious ambiguity in the 2007 Amendment, and the apparent activity of the bankruptcy trustees in aggressively seeking to avoid mortgages on technical grounds even after the 2007 Amendment, we hold that the 2008 Amendment did not change the meaning of the statute as amended in 2007, but merely clarified it to effectuate the legislature's intent in 2007.

Thus, the court concluded that since the 2007 Amendment is ambiguous, considering the legislative intent as shown by the 2008 Amendment that quickly clarified that the provision applied to all mortgages, the legislature likely intended the 2007 Amendment to apply to all mortgages, whenever filed.

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Decisions on Fees Awards Under Equal Access to Justice Act

In a consolidated appeal, US v. Thouvenot, Wade & Moerschen, Inc., No. 09-2421, the  Seventh Circuit addressed the Equal Access to Justice Act which entitles a prevailing party in litigation with the United States to attorneys' fees unless the court finds that the position of the government was substantially justified.

In the first case involving a project site engineer, the court held that based on the evidence, defendant was not entitled to attorneys' fees as the government had a substantial though not winning case, against the defendant. 

In the last two cases  involving social security disability benefits, in deciding whether the agency had a substantial justification for turning down the application, the court reversed denial of fees to the claimant in the first case as the government's position was not substantially justified, and affirmed denial of fees in the second case on the basis that the agency's position had been substantially justified. 

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Ruling Against Defendant Claiming Procedural Error in His Sentencing

In U.S. v. Pulley, the U.S. Court of Appeals for the Seventh Circuit addressed a criminal defendant's challenge to his sentence for wire fraud conviction related to a scheme to defraud the United Airlines Employees' Credit Union.

In rejecting defendant's argument that the government's lack of candor at his co-defendant's sentencing proceedings caused the district court to make significant procedural errors at his sentencing, the Court held that the district court approached the sentencing hearing with an open mind, and that defendant has not provided sufficient evidence of government's breach of its duty of candor to require resentencing. 

Finally, the Court rejected defendant's argument that the district court's sentencing procedure was unsound and the sentence substantively unreasonable. 

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Challenge to Seizure of Drugs Found in Defendant's Vehicle Rejected

In U.S. v. Taylor, No. 08-3648, the U.S. Court of Appeals for the Seventh Circuit faced a challenge to a conviction for possessing crack cocaine with intent to distribute it.

As stated in the decision: "the agents viewed Taylor driving without his seatbelt, and Taylor has not challenged that factual finding on appeal."

The Court affirmed the conviction in concluding that the initial stop of the vehicle and the questioning was proper as it was based on probable cause to believe that defendant had committed a traffic offense.  The Court further found that the seizure was reasonable in duration and the subjective motivations of the agents are irrelevant to the Fourth Amendment analsys. 

Related Resources:

Full Text of U.S. v. Taylor

Thorogood v. Sears Roebuck & Co., No. 09-3005

In plaintiff's class action lawsuit claiming that defendant-company sold dryers that were misrepresented as containing stainless steel drums in violation of the Tennessee Consumer Protection Act, dismissal of the suit for lack of subject matter jurisdiction, after a remand following decertification, is affirmed as the district judge was within his discretion in deciding that no attorney's fees should be awarded.     

Read Thorogood v. Sears Roebuck & Co., No. 09-3005

Appellate Information

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

Decided February 12, 2010

Judges

Before: Posner, Kanne, and Evans,  Circuit Judges

Opinion by Circuit Judge  Posner

Talley v. US Dep't of Agric., No. 09-2123

In plaintiff's suit against the U.S. Department of Agriculture under the Fair Credit Reporting Act (FCRA) claiming that the Department violated the Act's requirements by reporting that plaintiff is behind on a loan that has been paid off on four separate occasions, judgment in favor of plaintiff is affirmed where: 1) the Tucker Act waives sovereign immunity for compensatory-damages claims under the Fair Credit Reporting Act; 2) the district court had subject matter jurisdiction under 28 U.S.C. section 1331 and 15 U.S.C. section 1681p; 3) attorney's fees as part of costs do not count toward the threshold set forth in the Tucker Act, any more than the costs themselves do; and 4) appellate jurisdiction exists as plaintiff appealed to section 1331 and section 1681p and did not invoke the Tucker Act as a grant of subject matter jurisdiction.  

Read Talley v. US Dep't of Agric., No. 09-2123

Appellate Information

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

Decided February 12, 2010

Judges

Before: Easterbrook. Chief Judge, and Rovner, and Tinder, Circuit Judges

Opinion by Chief Judge  Easterbrook

US v. Peel, No. 07-3933

Conviction and sentence of defendant for bankruptcy fraud, obstruction of justice, and possession of child pornography is affirmed in part, reversed in part and remanded where: 1) either the bankruptcy fraud conviction or the obstruction of justice conviction must be vacated as the crimes committed in a bankruptcy proceeding are the same offense for purposes of double jeopardy; 2) conviction for possession of child pornography is affirmed; 3) intended loss must be recalculated as defendant presented credible evidence for discounting  a stream of future payments to future value; and 4) the guidelines sentencing range must be redetermined.     

Read US v. Peel, No. 07-3933

Appellate Information

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

Decided February 12, 2010

Judges

Before: Posner, Manion, and Hamilton, Circuit Judges

Opinion by Circuit Judge  Posner

Munoz de Real v. Holder, No. 09-1945

A petition for review, a BIA's decision affirming IJ's denial of a Mexican national's motion to reopen removal proceedings on the ground that based on intervening developments in the law, the conviction of felony drunk driving was not a proper basis for removal, is denied as petitioner's motion to reopen was unquestionably time-barred.     

Read Munoz de Real v. Holder, No. 09-1945

Appellate Information

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

Decided February 11, 2010

Judges

Before: Easterbrook. Chief Judge, and  Kanne, Circuit Judges, and Kennelly, District Judge

Opinion by District Judge Kennelly

US v. Cruz, No. 08-4194

In a conviction of defendant for conspiring to sell illegal drugs, district court did not err in imposing a 10-year mandatory minimum sentence as, although defendant had served 18 months in state prison for a state drug offense that parties agree was relevant conduct in the federal prosecution, there is no concurrent sentence and cannot be one when the defendant is no longer subject to an undischarged term of imprisonment.   

Read US v. Cruz, No. 08-4194

Appellate Information

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

Decided February 11, 2010

Judges

Before: Bauer, Posner, and, Kanne, Circuit Judges

Opinion by Circuit Judge  Posner

US v. Zohfeld, No. 08-3252

District court's imposition of a 24 months' imprisonment followed by 3 years of supervised release upon a defendant convicted of stalking the surgeon who saved his life is affirmed as, the district court did not rely on any inaccurate information in sentencing defendant and did not abuse its discretion in considering defendant's mental health among the variety of factors discussed at sentencing.   

Read US v. Zohfeld, No. 08-3252

Appellate Information

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

Decided February 11, 2010

Judges

Before: Easterbrook. Chief Judge,  Williams, and Tinder, Circuit Judges

Opinion by Circuit Judge  Williams

Green v. UPS Health & Welfare Package for Retired Employees, No. 09-2445

In a class action lawsuit brought by former employees of UPS claiming that defendants raised the amount of health insurance contributions required of union retirees in violation of the retirement plan and, consequently, ERISA, judgment of the district court is affirmed where: 1) district court correctly concluded that UPS violated the Summary Plan Description by collecting additional contributions from local union retirees without collecting from other IBT retirees covered by the plan; and 2) with respect to additional contributions UPS collected from the local union retirees during the term of the 2008 CBA, district court correctly concluded that UPS's determination was within the range of reasonable interpretations, and therefore, not arbitrary and capricious.     

Read Green v. UPS Health & Welfare Package for Retired Employees, No. 09-2445

Appellate Information

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

Decided February 10, 2010

Judges

Before: Cudahy, Wood, and Evans, Circuit Judges

Opinion by Circuit Judge  Evans

Elustra v. Mineo, No. 09-2183

In a suit brought against a police officer and a restaurant owner on behalf of minors, claiming civil rights violation, false imprisonment, and injuries suffered arising from a dispute over a bill owed to the restaurant, the district court's conclusion that the parties reached an enforceable oral agreement to settle their dispute is affirmed where: 1) given the record, the district court had no choice but to confirm the magistrate judge's finding that the plaintiffs - directly or through their lawyer - accepted the agreement; 2) the material terms were definite and certain - defendants would pay $6000 to the plaintiffs in exchange for their dismissal of the lawsuit; and 3) district court did not abuse its discretion in finding that it had complied with Local Rule 17.1.  

Read Elustra v. Mineo, No. 09-2183

Appellate Information

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

Decided February 9, 2010

Judges

Before: Flaum, Wood,  and Sykes,  Circuit Judges

Opinion by Circuit Judge  Wood

US v. Cox, NO. 09-1258

District court's conviction of defendant for bank robbery and imposition of a 65 months' imprisonment is affirmed where: 1) Rule 12(e) applies to identification testimony in court; 2) defendant cannot supply good cause for the purpose of Rule 12(e); and 3) a motion under section 2255 is the right way to obtain review of contentions that an attorney's carelessness causes a waiver under Rule 12(e), but the record on direct appeal lacks the evidence needed to make such a decision.   

Read US v. Cox, NO. 09-1258

Appellate Information

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

Decided February 9, 2010

Judges

Before: Easterbrook, Chief Judge, Manion and Cudahy,  Circuit Judges

Opinion by Chief Judge Easterbrook

Helcher v. Dearborn County, No. 07-3949

In a suit against a county by a wireless communications services provider for violation of various provisions of the Telecommunications Act of 1996 when the local Board of Zoning Appeals denied plaintiff's application for a conditional use permit to construct a wireless communication facility on property owned by co-plaintiffs, district court's grant of summary judgment in favor of the defendants is affirmed where: 1) the Minutes met the "in writing" requirement under the Act; 2) Board's decision rejecting the permit for noncompliance with section 1514 is supported by substantial evidence; and 3) plaintiffs' claim of unreasonable discrimination fails.   

Read Helcher v. Dearborn County, No. 07-3949

Appellate Information

Appeal from the United States District Court for the Southern District of Indiana, New Albany Division

Decided February 9, 2010

Judges

Before: FlaumRovner, and Wood,  Circuit Judges

Opinion by Circuit Judge  Rovner

US v. Xiong, No. 09-1410

Defendant's convictions for arson, mail fraud, conspiracy to commit arson and mail fraud, and the use of fire to commit another felony, arising from his burning down his mother's supermarket to help her collect insurance money, are affirmed as, under the Blockburger combination approach, Congress intended separate punishments for defendant's convicted offenses.   

Read US v. Xiong, No. 09-1410

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin

Decided February 8, 2010

Judges

Before:  Bauer, and Wood,  Circuit Judges, and Kennelly, District judge

Opinion by Circuit Judge  Bauer

US v. Goodpasture, No. 08-3328

District court's imposition of a 180 month sentence, as an armed career criminal, on a defendant convicted of unlawful possession of a firearm is reversed and remanded as a California offense of a lewd or lascivious act involving a person under the age of 14 is not a violent felony and as such, the 15 year minimum sentence for an armed career criminal does not apply. 

Read US v. Goodpasture, No. 08-3328

Appellate Information

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

Decided February 8, 2010

Judges

Before: Easterbrook. Chief Judge, and  Kanne, Circuit Judge, and Kennelly, District Judge

Opinion by Circuit Judge  Easterbrook

Covell v. Menkis, No. 08-3245

In plaintiff's 42 U.S.C. section 1983 suit following his termination by a government agency, summary judgment in favor of the defendant is affirmed where: 1) plaintiff failed to sufficiently demonstrate that he had a property interest in his employment because he did not establish that there was a mutually explicit understanding that he could only be terminated for cause; and 2) plaintiff failed to sufficiently demonstrate that the defendant's actions deprived him of a liberty interest. 

Read Covell v. Menkis, No. 08-3245

Appellate Information

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

Decided February 8, 2010

Judges

Before: BauerWilliams,  and Manion,  Circuit Judges

Opinion by Circuit Judge Bauer

Turner v. Saloon, Ltd., No. 07-2449

In plaintiff's employment discrimination suit against his former employer, summary judgment in favor of defendant is affirmed in part, reversed in part and remanded where: 1) the judgment of the district court is affirmed to the extent that it dismissed plaintiff's ADA claims, his overtime claims, and his Title VII retaliation claim; but 2) judgment of the district court with respect to plaintiff's hostile-workplace claim based on alleged sexual harassment is reversed and remanded as the court dismissed the claim after excluding most of the alleged instances of harassment as time-barred, contrary to Supreme Court precedent establishing that in a hostile-workplace claim, acts of harassment falling outside Title VII's statute of limitations may be considered as long as some act of harassment occurred within the limitations period. 

Read Turner v. Saloon, Ltd., No. 07-2449

Appellate Information

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

Decided February 8, 2010

Judges

Before: Rovner,  Sykes, and Manion, Circuit Judges

Opinion by Circuit Judge  Sykes

Reget v. City of La Crosse, No. 06-1621

In plaintiff's constitutional challenge to defendant-city's junk-dealer ordinance requiring him to comply with certain building and safety-code provisions and to fence his outdoor auto storage from the view of his surrounding residential neighbors, summary judgment in favor of defendant is affirmed as plaintiff has not shown that the city has treated him differently than other similarly situated businesses. 

Read Reget v. City of La Crosse, No. 06-1621

Appellate Information

Appeal from the United States District Court for the Western District of Wisconsin

Decided February 8, 2010

Judges

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

Opinion by Circuit Judge  Sykes

Lopez v. Thurmer, No. 08-2110

In a prosecution for first-degree intentional murder as a party to a crime, district court's denial of defendant's petition for habeas relief is affirmed over claims that: 1) a state appellate court's application of Strickland to the facts of petitioner's case was unreasonable because the court applied the wrong standard under Wisconsin law to determine whether he was entitled to a felony-murder instruction; and 2) a state appellate court's factual determination that counsel had discussed a felony-murder instruction with him was unreasonable. 

Read Lopez v. Thurmer, No. 08-2110

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin

Decided February 5, 2010

Judges

Before: Manion, Flaum,  and Rovner,  Circuit Judges

Opinion by Circuit Judge  Rovner

Rodriguez v. Montgomery, No. 06-3995

District court's grant of defendant's petition for collateral relief is reversed and remanded where, because the record would not support a conclusion that going to trial with only one lawyer had a substantial and injurious effect on the outcome, the state judiciary's erroneous decision to disqualify defendant's second lawyer was harmless.     

Read Rodriguez v. Montgomery, No. 06-3995

Appellate Information

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

Decided February 5, 2010

Judges

Before: Easterbrook. Chief Judge, Wood, and  Williams,Circuit Judges

Opinion by Circuit Judge  Easterbrook

Olson v. Brown, No. 09-2728

In a putative class action lawsuit filed by an inmate against a county sheriff alleging several First Amendment violations and violations of Indianan law in a county jail, dismissal of the suit as moot on the ground that plaintiff was transferred out of the county jail before class certification is reversed and remanded as this case fits within the exception to the mootness doctrine carved out for inherently transitory cases. 

Read Olson v. Brown, No. 09-2728

Appellate Information

Appeal from the United State District Court for the Northern District of Indiana, South Bend Division

Decided February 4, 2010

Judges

Before: Posner,  and  Flaum,  Circuit Judges, and DerYeghiayan, District Judge

Opinion by Circuit Judge  Flaum

US v. Risner, No. 09-2627

In a conviction of defendant for possession of a firearm by a convicted felon and possession of an unregistered firearm, district court's denial of defendant's motion to suppress is affirmed as, district court did not err in finding that defendant's then-girlfriend impliedly consented to the police entries into the home shared with the defendant.   

Read US v. Risner, No.  09-2627

Appellate Information

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division

Decided February 3, 2010

Judges

Before: Bauer, Kanne, and Tinder, Circuit Judges

Opinion by Circuit Judge  Kanne

US v. Tenuto, No. 09-2075

In a conviction of defendant for transporting child pornography, district court's imposition of two guideline enhancements for use of a computer and distribution of material that involved the sexual exploitation of a minor is affirmed as, the district court did not engage in "double counting" as the enhancement for distributing material that involved the sexual exploitation of a minor was not based on the same factual predicate as the offense of transporting child pornography under section 2252A(a)(1) to which defendant pleaded guilty.   

Read US v. Tenuto, No. 09-2075

Appellate Information

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

Decided February 3, 2010

Judges

Before:  Williams, Manion, and Cudahy, Circuit Judges

Opinion by Circuit Judge  Manion

Parish v. City of Chicago, NO. 09-1385

In plaintiff's 42 U.S.C. section 1983 claim asserting a Fourth Amendment violations for malicious prosecution against the City of Chicago and detectives from the Chicago Police Department, district court's dismissal of the action is affirmed as, the Seventh Circuit precedent does not permit an action for malicious prosecution under section 1983 if a state remedy exists, and plaintiff has explicitly limited his appeal to asking to overrule the precedent and there is no reason to overturn circuit precedent.   

Read Parish v. City of Chicago, NO. 09-1385

Appellate Information

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

Decided February 3, 2010

Judges

Before: CoffeyEvans,  and Williams,  Circuit Judges

Opinion by Circuit Judge Coffey

US v. Christiansen, No. 09-1925

District court's imposition of a sentence of four-months' imprisonment on a defendant convicted of wire fraud for defrauding several people out of money and property, by posing as an expectant mother willing to give her child up for adoption, is affirmed where: 1) district court  correctly applied the "vulnerable victim" and "mass-marketing" sentence enhancements; and 2) the district court properly considered the section 3553(a) factors. 

Read US v. Christiansen, No. 09-1925

Appellate Information

Appeal from the United States District Court for the Western District of Wisconsin

Decided February 2, 2010

Judges

Before:  Cudahy, Flaum,  and Evans,  Circuit Judges

Opinion by Circuit Judge  Evans

US v. Resnick, No. 08-4039

In a wire fraud case arising as a result of defendant's role in a check-kiting scheme that caused the failure of a federal savings bank, wherein the government sought to collect defendant's financial obligations to the FDIC from third party-bookie who received money from the insolvent defendant, judgment in favor of the government under a theory of fraudulent transfer under the Federal Debt Collection Procedure Act (FDCPA) is affirmed as defendant's transfers of money to his bookie fell within the scope of the FDCPA, and the bookie is liable to the government for the constructively fraudulent transfers.  The bookie's remaining arguments regarding supplementary proceedings and affirmative defenses are rejected.     

Read US v. Resnick, No. 08-4039

Appellate Information

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

Decided February 2, 2010

Judges

Before: Posner, Manion, and Hamilton, Circuit Judges

Opinion by Circuit Judge  Hamilton

US v. Turner, No. 08-2350

District court's disqualification of defendant's retained counsel from representing him in a prosecution for conspiracy to distribute cocaine because the attorney was also representing an alleged co-conspirator in sentencing proceedings is reversed and remanded for retrial as the district court's disqualification order violated defendant's Sixth Amendment right to choose his own counsel, and, under Gonzalez-Lopez, this constitutional violation is a structural error not subject to review for harmlessness.     

Read US v. Turner, No. 08-2350

Appellate Information

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

Decided February 2, 2010

Judges

Before: Easterbrook. Chief Judge, and Sykes, and Kendall, District Judge

Opinion by Circuit Judge  Sykes