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

April 2010 News

In US v. Dunson, No. 08-1691, the Seventh Circuit faced a challenge to the district court's imposition of a 110-month sentence upon a defendant for his conviction for being a felon in possession of a firearm.  Although the defendant was not sentenced as an armed career criminal, the Seventh Circuit interprets "violent felony" as used in section 2K2.1 the same way as "crime of violence" in section 924(e), therefore, defendant's sentence and conviction are affirmed as his prior conviction for fleeing a police officer in a vehicle is a crime of violence. 

US v. Turner, No. 08-4159, concerned a challenge to a conviction for drug conspiracy and firearms crime and a 300 month sentence claiming, inter alia, there was insufficient evidence to support his conspinracy conviction and drug quantity determinations.  However, because there was sufficient evidence to support the district court's conclusion that defendant was a member of the conspiracy in January 2005 and sufficient evidence also supported its drug quantity determinations, the convictions are affirmed.  With respect to challenges to defendant's sentence, district court did not err in its consideration of the sentencing disparities and there was no abuse of discretion as defendant's sentence is substantively reasonable.

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Raghunathan v. Holder, No. 08-2475, concerned a Sri Lankan couple's petition for review of the BIA's denial of their motion for reconsideration of an IJ's denial of application for asylum (based on both husband and wife being ethnic Tamils) and related relief.

In affirming the denial, the court held that petitioners failed to show that the Board abused its discretion in denying their motion for reconsideration or that the Board erred in affirming the IJ's decision ordering their removal. 

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In Chen v. Holder, No. 08-2836, the Seventh Circuit dealt with the BIA's affirmance of Immigration Judge's denial of a Chinese national's application for asylum and related relief, claiming that he has been or will be persecuted because of his family's resistance to China's one-child policy and his membership in social groups that include his family and the hei haizi.  In granting the petition, the court held that the agency's analysis of the asylum claim was incomplete as the BIA failed to address petitioner's claim of past persecution based on imputed political opinion, and BIA also failed to consider the cumulative significance of the hardships visited upon petitioner and his family and the future hardships he would face if returned. 

Nat'l Cas. Co. v. McFatridge, No. 09-1497, concerned a county and its former state's attorney's suit seeking defense and indemnification in an underlying suit by an individual convicted of murder in 1986 later overturned in 2003.  In affirming the district court's holding that the insurer had no obligation to defend or indemnify, the court held that the county's obligation to pay judgments against the former state's attorney or the state attorney's office under section 10/9-102 is not an occurrence or accident as defined by the policies, and there was no duty to defend or indemnify the county.

US v. Diekemper, No.09-2081, involved a conviction of a husband and wife for conspiracy to commit bankruptcy fraud, conspiracy to commit mail fraud, making false statements for the purpose of influencing the USDA Commodity Credit Corporation, and perjury.  In affirming the district court's within-guidelines sentence of 120 months in prison upon the husband after applying a four-level enhancement, the court rejected defendant's various contentions to his sentence, including his claim that his wife's probation condition (prohibiting her from having any contact with her husband) violates his fundamental right to a marital relationship.

US v. Sanchez, No.09-2666, concerned a challenge to a conviction of an El Salvadoran national and citizen for drug related crime, claiming that the trial court abused its discretion in preventing defendant from arguing during closing argument that he was never properly removed from the U.S. because he was sent to Mexico instead of El Salvador.  In affirming the conviction, the court held that the district court correctly determined at the hearing during trial that the location to which defendant was removed is irrelevant to the ultimate determination of whether he violated 8.U.S.C. section 1326(a), for illegal reentry. 

In Mercado v. Dart, No. 09-3092, the court faced a challenge to the district court's denial of defendant's mid-trial Rule 50 motion in a 42 U.S.C. section 1983 suit brought by a class of inmates claiming, inter alia, that the sheriff and his staff have subjected them to needlessly humiliating strip searches.  However, trial court's denial of the motion is not appealable as a "collateral order" under section 1291 and this appeal must be dismissed anyway because it is substantively frivolous. 

Levan v. George, No. 09-3223, concerned a challenge to the district court's denial of county sheriff deputies' motion for summary judgment based on qualified immunity in plaintiff's suit for false arrest and excessive use of force, arising from arrest of plaintiff for disorderly conduct.  However, because it is readily apparent that the question of qualified immunity turns on genuine issues of material fact, the case is dismissed for lack of appellate jurisdiction. 

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No Violation of Confrontation Clause in Drug Conviction

In US v. Linzy, No. 09-2046, the Seventh Circuit faced a challenge to a conviction for conspiracy to distribute and possession with intent to distribute various controlled substances and sentenced to life imprisonment, ten years' supervised release and a $200 special assessment, claiming that the district court abused its discretion in restricting defense counsel's cross-examination of his co-defendant. 

As stated in the decision: "The Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'"

Thus, in affirming the conviction, the court held that the district court did not abuse its discretion in limiting cross-examination of the co-defendant concerning the nature of his arrest warrant, as the jury had abundant evidence to appraise the witness's motivation for testifying. 

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Dexia Credit Local v. Rogan, No.08-3500, concerned a challenge to the district court's grant of a preliminary injunction barring defendant's wife from continuing to transfer certain assets, in supplementary proceeding to enforce a $124 million judgment against defendant and related partnerships, arising from a longstanding Medicare and Medicaid fraud scheme.  Because the district court had subject matter jurisdiction over the case and because the there was no abuse of discretion in entering the preliminary injunction, the decision of the district court is affirmed.

In US v. Shaaban, No. 08-4124, the Seventh Circuit faced a challenge to a conviction of a naturalized American citizen born in Jordan, in a jury trial, of acting as an agent for Iraq and other crimes and sentenced to a 160-months' imprisonment.  In rejecting defendant's various claims, the court held that the district court did not abuse its discretion in denying defendant's motion for a new trial and did not err in its adverse ruling on a motion to reconsider the denial of demand for return of seized property as untimely.

US v. Chapa, No. 09-3285, concerned a defendant's request to vacate his conviction for conspiracy to possess with the intent to distribute 1,000 or more kilograms of marijuana, and to remand the case to the district court for trial.  However, defendant's claim that his guilty plea was invalid is dismissed as defendant waived his right to appeal the conviction. 

Schaaf v. Astrue, No. 09-2820, concerned a challenge to the district court's affirmance of ALJ's denial of claimant's application for Social Security disability benefits after he lost partial use of one arm in a snowmobile accident, claiming that he no longer could perform his past job as a mason or any other job.  However, because claimant has not presented any evidence of what further evidence the ALJ would have elicited, he has not shown any prejudice.  Furthermore, because the ALJ did not err in concluding that there was no evidence that any side effects from medications would prevent claimant from working, the decision of the district court is affirmed.

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Former Correctional Officers' Suits For Termination and Prosecution

Swearnigen-El v. Cook County Sheriff's Dep't, No. 09-2709, and Egonmwan v. Cook County Sheriff's Dep't, No. 09-2764, each involved a plaintiff's suit against a county, county sheriff's department and individuals, arising from their prosecution for custodial sexual misconduct while employed as correctional officers in a county jail's women's division.  Both plaintiffs were acquitted and each made section 1983 and other similar claims against defendants.

In Swearnigen-El, the plaintiff claimed constructive discharge and malicious prosecution against defendants.  However, the court rejected plaintiff's claims and affirmed the district court's grant of summary judgment in favor of defendants on plaintiff's various claims, including gender and race discrimination and intentional infliction of emotional distress. Lastly, district court properly dismissed plaintiff's Title VII retaliation claim.

In Egonmwan, the court rejected plaintiff's claims and affirmed the district court's grant of summary judgment in favor of the defendants as to plaintiff's gender discrimination claim and as to his race discrimination claim as he has not shown that discriminatory motivation under the direct method or carried his burden under the indirect method. 

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Sheehy Enter., Inc. v. Nat'l Labor Relations Bd., No.09-1383, concerned a petition for review of the National Labor Relations Board's order affirming ALJ's holding that the company committed an unfair labor practice by repudiating the collective bargaining agreement (CBA).  In denying the petition, the court held that substantial evidence supports the ALJ's conclusion that the company committed an unfair labor practice by repudiating the 2004 CBA.  Furthermore, the company waived its affirmative defense that the section 10(b) statute of limitations bars the Board's complaint and the argument that the Board should have deferred from hearing the matter in favor of arbitration cannot be considered as it failed to present it to the Board. 

In US v. Norwood, No. 09-2507, the Seventh Circuit faced a challenge to district court's denial of defendant's motion seeking restitution from the government of the value of the missing property taken after his arrest, on the ground that Rule 41(g) does not authorize monetary relief in criminal cases.  In vacating the denial, the court held that the defendant is entitled to amend his complaint to add Bivens and section 1983 claims, as when a district court conducting a Rule 41(g) proceeding learns that the government no longer has property that is the subject of the motion to return, the court should grant the movant (particularly a pro se movant) an opportunity to assert an alternative claim for money damages by converting a motion for civil relief in a criminal case into a civil complaint, and the amendment relates back to the date of the filing of the original complaint.

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Negligence Suit Against Walmart Pharmacy, Plus Criminal Matters

Happel v. Walmart Stores, Inc., No. 07-2264, involved a suit, brought by a husband and wife, against Walmart for negligently filling the wife's prescription with wrong medication, causing her to go into anaphylactic shock and on ventilation support for 18 hours.  The court rejected plaintiffs' claim that the trial court erred in not allowing them to present expert witness testimony to show that the allergic reaction to the wrong medication exacerbated the wife's multiple sclerosis.  With respect to damages however, the court reversed and remanded for a new trial as the husband and wife are entitled to seek seprate damage awards. 

In US v. Coopman, No. 09-2134, the Seventh Circuit faced a challenge to the district court's imposition of a 151-month sentence, followed by 10 years' supervised release, upon a defendant convicted of possession and receipt of child pornography.  In rejecting defendant's challenge to his sentence, the court held that the district court committed no procedural or substantive error in sentencing defendant and it imposes a reasonable sentence.

In US v. Angiano, No. 09-3592, the court faced a challenge to  district court's imposition of a sixteen-level enhancement on a defendant in his conviction for illegal reentry and aggravated felony.  In affirming the sentence, the court held that the sixteen-level enhancement was warranted because defendant's prior conviction for burglary of a dwelling is specifically enumerated as a crime of violence under section 2L1.2 n.1(B)(iii).

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Decision In Prisoner's Civil Rights Case Claiming Excessive Force

Evans v. Poskon, No. 09-3140, involved a prisoner's 42 U.S.C section 1983 suit claiming that his fourth amendment rights were violated when the officers used excessive force during and after his arrest.  The district court granted summary judgment in favor of the defendants on the ground that Heck v. Humphrey, 512 U.S. 477 (1994), bars defendant's claim because his assertion that he did not oppose being taken into custody contradicts his conviction for resisting arrest. 

However, the Court in Wallace v. Kato, 549 U.S. 384 (2007) holds that a claim that accrues before a criminal conviction may and usually must be filed without regard to the conviction's validity and that a claim asserting that a search or seizure violated the fourth amendment accrues immediately.  Here, defendant's claim that he did not resist being taken into custody is incompatible with his conviction and any proceedings based on this claim must be stayed or dismissed, but his other two claim that the police used excessive force to effect custody and that they beat him severely even after the arrest are consistent with a conviction for resisting arrest and may proceed, as the pro se defendant never claimed he must proceed on all three claims.

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US v. Pape, No. 09-2336, concerned a challenge to district court's imposition of a 90-month sentence followed by 20 years' supervised release for a conviction for possession of child pornography.  In affirming the dstrict court's sentence, the court held that the defendant's arguments about his history and parenting obligations were adequately considered.  Furthermore, where sentences are within or below the guidelines, as in this case, a district court is presumed to have considered arguments about unwarranted disparities. 

In the Matter of: Altheimer & Gray, No. 09-3336, involved a challenge to district court's affirmance of the bankruptcy judge's denial of petitioner's motion to require the trustee to pay his claim, arising from the involuntary bankruptcy of the law firm, Altheimer & Gray.  In affirming the denial, the court held that as the reorganization plan under Chapter 11 subordinated partners' claims to those of other creditors, petitioner cannot prevail as he is a non-unit partner under the plan. 

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Above-Guidelines Sentence Imposed on Sex Offender Vacated

US v. Miller, No. 09-2791, concerned a challenge to the district court's imposition of a 120-months' sentence upon a defendant convicted of traveling in interstate commerce to engage in prohibited sexual conduct with a fourteen-year-old girl.

As stated in the decision: "An above guidelines sentence is more likely to be reasonable if it is based on factors that are sufficiently particularized to the individual circumstances of the case rather than factors common to offenders with like crimes." 

Based on the record, district court's sentence was based on its belief that sex offenders have a higher-than-normal rate of recidivism, which if assuming their accuracy would apply to all sex offenders and not just defendant.  Furthermore, the district court failed to provide sufficient support for a sentence that was 50% above the high end of the advisory guidelines range, and is therefore vacated and remanded for resentencing. 

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In Whittington v. Indianapolis Motor Speedway Found., Inc., No. 08-3352, the Seventh Circuit faced a challenge to the district court's judgment in favor defendant  in plaintiff's action for tortious conversion and replevin of a 1979 Racing Porche automobile, which is on display at the Foundation's Hall of Fame Museum, claiming that he loaned the car rather than gifted it to the Foundation.

However, in affirming the district court's decision, the court held that plaintiff failed to prove that he had a property right in the car.  Furthermore, plaintiff's claim that the district court erred in placing the burden of proof on him, as the plaintiff, to prove both that the car was not a gift and that he had a property right in the car is rejected. 

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Criminal, Administrative, and Bankruptcy Matters

In US v. Franklin, No. 09-2265, the Seventh Circuit decided first of two criminal matters involving the district court's denial of defendant's 18 U.S.C. section 3582(c) motion requesting a lower sentence in light of the new guidelines reducing the offense levels for crack cocaine crimes.  However, because defendant's case did not state that the 157-month sentence was based on the guidelines range for the purposes of section 3582(c), the district court's denial of the motion is affirmed.

In US v. Palmer, No. 09-2558, the Seventh Circuit decided a second criminal matter involving a newly appointed appellate counsel's Anders submission to withdraw from representation of defendant convicted of drug related offenses.  In denying the counsel's Anders motion, the court held that it will not infer that counsel made an informed decision to include only sentencing issues where the brief does not set out the nature of the case and the course of proceedings in enough detail to demonstrate that counsel evaluated the entire record. 

Truhlar v. U.S. Postal Serv., No. 09-1652 concerned a postal carrier's suit against the Postal Service and his local union arising from his termination for failing to disclose in the disability compensation paperwork that he was earning money playing bass guitar in a rock band. In order to withstand summary judgment, plaintiff needed to show both that the union representative breached its duty to represent him fairly in pursuing his grievances and that the Postal Service violated the CBA.  However, because the district court correctly concluded that the Postal Service's decision to fire plaintiff did not violate the CBA, entry of summary judgment in favor of the defendants is affirmed. 

In Re: Repository Tech. Inc., No. 08-1342, involved a challenge to the district court's decision in two separate cases involving the bankruptcy of Repository Technologies, Inc. (RTI), a now defunct software company.  In the case of In re RTI, the court vacated the district court's judgment and dismissed the appeal from the bankruptcy court as moot based on the sale of RTI's assets and termination of its business.  In the case of Nelson v. Welch, the judgment of the district court is reversed and remanded as plaintiff's federal and state-law claims are so entangled that the district court should have retained supplemental jurisdiction over the state-law claims. 

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Civil Procedure and Criminal Matters

US v. Leija-Sanchez, No. 09-2672, involved a prosecution for, inter alia, violating 18 U.S.C. section 1959 by arranging and paying for a murder in Mexico.  The court of appeals reversed the dismissal of this charge, holding that section 1959 applied to a murder in another nation designed to facilitate the operation of a criminal enterprise in the U.S.

In US v. Barnes, No. 09-2052, the court of appeals vacated defendant's drug and firearm possession sentence, holding that, without any justification for why one co-conspirator was responsible for a greater quantity of drugs than his fellow co-conspirators, the discrepancy in the district court's factual findings was clearly erroneous.

In US v. Taylor, No. 09-2262, the Seventh Circuit affirmed defendant's drug conspiracy conviction, on the grounds that 1) the government put forth sufficient evidence of defendant's involvement in the conspiracy; and 2) a witness's new statement did not meet the requirements for newly discovered evidence to warrant a new trial.  However, his sentence is vacated where the district court erred in determining the amount of cocaine attributable to the conspiracy.

In US v. Moreno-Padilla, No. 08-4302, the court of appeals affirmed defendant's illegal reentry sentence, holding that 1) defendant failed to demonstrate the inaccuracy of the presentence report; 2) defendant's argument, raised only in a single paragraph in his pro se memorandum, was not sufficiently substantial to have warranted more overt consideration by the district court; and 3) the district court did a thorough job of addressing defendant's concerns about the harshness of the 16-level enhancement.

In US v. Klebig, No. 08-2589, the court of appeals reversed defendant's conviction for possessing an unregistered rifle and an unregistered silencer, holding that 1) defendant's preoccupation with security concerns had nothing to do with his knowledge that the sawed-off rifle at issue was a rifle rather than a pistol, or his intent to use an oil filter as a silencer rather than a flash suppressor, and evidence to that effect was improperly admitted; and 2) to make the point that defendant was very familiar with firearms, it was not necessary to lay two dozen guns out on the floor around the witness box, and such evidence was unduly prejudicial to defendant.

Tamburo v. Dworkin, No. 08-2406, concerned an antitrust and intentional tort action arising out of a dispute over the contents of a dog-pedigree software program plaintiff developed by lifting data from defendants' websites.  The court of appeals affirmed the dismissal of the complaint in part where plaintiff's antitrust claims were not pled with sufficient specificity.  However, the court reversed in part where defendants were alleged to have used their websites--or in the case of the Canadian defendant, blast emails to the online dog pedigree community--to defame and tortiously generate a consumer boycott against plaintiff, knowing that he lived and operated his software business in Illinois and would be injured there.

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American Honda Motor Co. v. Allen, No. 09-8051, involved a class action alleging that a Honda motorcycle had a design defect that prevented the adequate dampening of "wobble."  The Seventh Circuit reversed the grant of class certification on the grounds that 1) the district court must perform a full Daubert analysis before certifying a class if the situation warrants; and 2) the district court never actually reached a conclusion about whether plaintiffs' expert report was reliable enough to support plaintiffs' class certification request.

Gratzl v. Office of the Chief Judges, No. 08-3134, concerned an Americans with Disabilities Act (ADA) action claiming that defendants failed to accommodate plaintiff's disability.  The court of appeals affirmed summary judgment for defendant on the ground that, even if plaintiff had a disability under the ADA, plaintiff was not entitled to relief under the ADA for other reasons: i.e. she was not a qualified individual and she rejected the reasonable accommodation that defendant offered.

In US v. Milbourn, No. 08-2525, the court of appeals affirmed defendant's conviction for intimidation based on race, arising out of his burning of a cross in the victims' yard, on the grounds that 1) the evidence that defendant acted with a racial motive was more than sufficient to support the jury's verdict; 2) burning a cross on the front yard of a biracial family was both threatening and an act of intimidation; and 3) the district court could not go below the mandated minimum sentence even if he were inclined to do so.

In US v. Jones, No. 09-1740, the Seventh Circuit affirmed in part defendant's drug conspiracy convictions, holding that 1) it was not error for the district court to utilize a jury form asking the jury to find that each defendant was responsible for more than a specific amount of drugs; 2) life sentences for participation in a drug conspiracy did not violate the Eighth Amendment; 3) a clerical error in the warrant affidavit for the wiretaps that formed the basis of this prosecution did not prejudice the defendants; 4) defendant's confession, which he gave after asking to speak to a detective and without being subjected to an interrogation, was voluntary and admissible; 5) the district court was within its discretion to exclude the testimony of an officer whom defendants wanted to question regarding statements that a co-defendant made during his guilty plea colloquy, because it was hearsay; 6) the district court correctly refused to grant defendant's request for a jury instruction on a lesser included charge because the proposed lesser charge contained elements distinct from the drug conspiracy charge, and so it did not meet the legal definition for "lesser included charge"; and 7) the government's comment, made during closing arguments, on the defendants' failure to offer testimony to contradict the government's evidence did not violate their Fifth Amendment rights because it was not a direct comment on their failure to testify.  However, the court vacated one defendant's conviction because the district court erred by admitting a detective's testimony concerning a wiretapped conversation between defendant and his counsel.

Fox v. Hayes, No. 08-3736, involved a 42 U.S.C. section 1983 action claiming that defendants arrested and prosecuted plaintiff without probable cause and in violation of his due process rights.  The Seventh Circuit affirmed judgment for plaintiffs in part on the grounds that 1) a reasonable jury could conclude that plaintiff was arrested early on during what was to be a very long night of interrogation; 2) the police lacked probable cause to arrest plaintiff because it was unreasonable for defendants to rule out a sexual predator as the victim's attacker; 3) defendant's abuse of his authority, involving an obviously vulnerable mother and wife, boosted what otherwise might be characterized as a particularly ugly insult across the threshold into a valid intentional infliction of emotional distress (IIED) claim; and 4) there was a plausible basis to find the jury's verdicts consistent.  However, the court vacated in part on the grounds that 1) plaintiffs could not now defend the due process verdict based on a theory that was never put before the jury; and 2) the evidence did not come close to supporting the $1 million compensatory award for the IIED claim.

Advertising Specialty Inst. v. Hall-Erickson, Inc., No. 08-1097, involved an action for breach of contract based on defendant's co-locating a trade show in Chicago with a competitor of plaintiff, in violation of a right of first refusal provision of the parties' agreement.  The court of appeals affirmed judgment for defendant, holding that plaintiff failed to prove damages with sufficient certainty.

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Today, the Seventh Circuit decided two cases involving administrative matters.  The first case involves plaintiff's action, individually and as an administratrix of her late husband's estate, against the Illinois Department of Resources and several oil companies, and the second involves a challenge to the BIA's order against an Algerian petitioner.

Leavell v. Illinois Dep't of Natural Res., No. 09-2590, involved a plaintiff's action asserting procedural due process claims and seeking injunctive relief to prevent the Illinois Department of Resources and several oil companies from plugging oil wells owned by her family and from transferring control over wells to oil companies.  However, because plaintiff's failure to avail herself of available state remedies is fatal to her federal due process claim, district court's dismissal of the claim with prejudice is affirmed. 

Benaouicha v. Holder, No. 09-3083, concerned a petition for review a BIA's affirmance of an immigration judge's order that petitioner be removed from the U.S. pursuant to 8 U.S.C. sections 1227(a)(1), 1227(a)(1)(C)(i) and 1227(a)(2)(A).  In affirming the order, the court held that petitioner is ineligible for cancellation of removal under the abused spouse provision as he cannot meet all five requirements under section 1229(b)(2).

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Decision in Criminal Matter Involving Family-based Drug Ring

US v. Green, No. 08-4088 concerned a consolidated appeal of defendants convicted of drug related crimes involved a family-based drug distribution network and money laundering scheme.

In rejecting defendants' various claims, the court affirmed the convictions finding that, inter alia, there was sufficient evidence to support the convictions beyond a reasonable doubt, and that the district court did not clearly err in finding that the search of one of the defendant's residence and the area under his bed, was a permissible protective sweep. 

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In US v. Billian, No. 09-3385, the Seventh Circuit faced a challenge to a conviction for drug and firearm related crimes, claiming that an officer's affidavit failed to establish probable cause and contained material falsehoods and omissions.

As stated in the decision: "Billian wants us to decide the probable-cause question without regard to the fact that both a state judge and a federal district judge have found probable cause.  After a federal district judge holds an evidentiary hearing and finds probable cause for the search, it would be almost inconceivable for a court of appeals to find probable cause so obviously lacking that the evidence must be suppressed.

Thus, except for a limited remand for determination of whether the district court's error in converting the pounds to kilograms affected the exercise of discretion in sentencing, the court affirmed the district court's denial of defendant's motion to suppress and held that the affidavit established probable cause, and the warrant was otherwise obtained in good faith. 

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ACE Am. Ins. Co. v. RC2 Corp., Inc., No. 09-3032, concerned a toy manufacturer's suit seeking declaratory relief and damages from its insurer for refusing to defend plaintiff in an underlying class action lawsuit against the toy maker of such toys as "Thomas & Friends" toy trains for exposure to lead paint.  At issue was the parties' interpretation of the word "occurrence" for purposes of determining whether policy covered liability occurring in China or in the U.S.

As stated in the decision: "[T]he policies are clear that the "occurrence" that triggers coverage takes place where the actual event that inflicts the harm takes place.  And based on the undisputed facts in this case, the "occurrence" here happened at the location (or locations) of the exposure itself: within the United States."

In reversing the district court's decision in favor of the insured, the court held that, under Illinois law, the policies unambiguously excluded coverage for the alleged harm caused by exposure to defective products that occurred in the United States regardless of whether antecedent negligence took place. 

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Estate of Escobedo v. Bender, No. 08-2365, involved a 42 U.S.C. section 1983 suit filed by a personal representative on behalf of the deceased plaintiff against a city and individual members of the city's police department claiming excessive force arising from plaintiff's shooting death. 

As stated in the decision: "Based on the pre-existing case law, it was clearly established as of July 19, 2005, that throwing a flash bang device blindly into an apartment where there are accelerants, without a fire extinguisher, and where the individual attempting to be seized is not an unusually dangerous individual, is not the subject of an arrest, and has not threatened to harm anyone but himself, is an unreasonable use of force."

Thus, in affirming the denial of defendants' motion for summary judgment, the court held that  the district court did not err in finding that the officers were not entitled to qualified immunity for their decision to use tear gas to extricate plaintiff from his apartment and their decision to use more tear gas and flash bang grenades to enter his apartment.

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In US v. Centra Bank, Inc., No. 08-5172, the Fourth Circuit addressed the district court's denial of government's request for the forfeiture of approximately $358,390.22 in criminal proceeds from a motel owner following his conviction for conspiracy to violate the anti-prostitution provision of the Mann Act. 

First, in addressing the government's contention that forfeiture of particular types of property, such as the criminal proceeds in this case, is nonpunitive, the court cited Supreme Court precedents in rejecting that contention.   Next, having decided that the forfeiture of criminal proceeds is punitive and subject to scrutiny under the Eight Amendment's Excessive Fines Clause, the court held that the forfeiture in this case was not "grossly disproportionate" to the gravity of the offense, given the seriousness of defendant's offense and his individual significance of culpability.

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Decisions on Criminal Matters Plus an FMLA Violation Claim

The Seventh Circuit decided two criminal matters involving issues of whether a death-row inmate is competent to participate in habeas proceedings and a defendant's challenge to his conviction for possession of a firearm in furtherance of a drug trafficking crime.  Lastly, the court decided a plaintiff's wrongful termination claim against her former employer under the FMLA.

Holmes v. Levenhagen, No. 04-3549, involved a challenge to a district court's determination that a defendant, convicted of first degree murders and sentenced to death, is competent to participate in the habeas proceeding.  In reversing that determination, the court remanded the matter with instructions to suspend the habeas proceedings unless and until the state provides substantial evidence that defendant's psychiatric illness has abated, or that its symptoms are sufficiently controlled, before resumption of the proceeding can be justified.

US v. Doody, No. 09-3078, involved a challenge to a conviction for possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. section 924(c).  In rejecting defendant's argument that his conduct did not violate the section because he possessed the firearm as collateral to secure a drug debt, the court affirmed his conviction in holding that the defendant took possession of the firearm in a way that facilitated a drug transaction. 

In Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539, the court faced a challenge to the district court's grant of summary judgment in favor of the employer in plaintiff's suit under the Family and Medical Leave Act.  In affirming the district court's conclusion, the court first rejected plaintiff's argument that she is entitled to toll the 12-month period for the 56 days during the period in which she was on FMLA leave, as there is no basis for such a contortion of the statute.  Next, the court rejected plaintiff's retaliation claim for taking FMLA leave as the employer's no-fault attendance policy is lawful and the plaintiff has not demonstrated a strong commitment to work for her employer to wipe an absence off her record under the policy. 

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London v. RBS Citizens, N.A., No. 09-1516, involved a judgment debtors' 42 U.S.C. section 1983 suit against their bank for freezing their checking account, including some of which were Social Security benefits, in response to a citation filed by their judgment creditor. 

In affirming the district court's dismissal of the complaint for failure to state a claim, the court held that the bank may not be held liable under section 1983 because the plaintiffs did not allege any action by the bank that was taken under color of state law. 

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Decisions re Brady and Giglio Claims & Confrontation Rights Issues

In US v. Jumah, No. 08-1931, the Seventh Circuit faced a challenge to a conviction of a DEA's confidential informant for knowing possession of a listed chemical, knowing or having reasonable cause to believe, that the chemical would be used to manufacture a controlled substance and a sentence of a 151-months' imprisonment.

In affirming the conviction, the court rejected defendant's claims of Brady and Giglio violations as his unsupported assertions that the government suppressed evidence are insufficient to make out a Brady or Giglio violation.  However, the matter is reversed and remanded for resentencing to recalculate the guidelines based on the weight of the pure drugs within the pseudoephedrine tablets and for determination of an appropriate sentence.

Ray v. Boatwright, No. 08-2825, concerned a district court's denial of defendant's petition for a habeas relief in a conviction for retaliatory shooting of an eleven-year girl.  In reversing the denial, the court held that it was an error for the trial court to admit co-actors' statements through a police detective's testimony at trial as it violated defendant's right of confrontation.

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