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

July 2010 News

Walker v. Monsanto Co. Pension Plan, 09-3637, concerned a challenge to the district court's grant of defendant's motion for summary judgment in a class action lawsuit challenging the manner in which certain credits accrue in the defendant company's pension plan as inconsistent with a provision of the Employee Retirement Income Security Act (ERISA).  In affirming the grant of summary judgment, the court held that the interest credits have no impact on the accrued benefit at normal retirement age and therefore have no effect on an employee's rate of benefit accrual, and Notice 96-8 and Revenue Ruling 2008-7 are wholly irrelevant to plaintiffs' claims.

US v. Vaughn, 09-3789, concerned a challenge to the district court's imposition of a 180-month sentence in a prosecution of an inmate for committing aggravated assault on a federal officer.  In affirming the sentence, the court held that the district court's explanations, that its decision rested on the need to deter defendant and others from such senseless attacks, the effort by defendant to prolong the attack, and the gruesome quality of the weapon, in imposing the above-guideline sentence are all reasonable.

US v. Jones, 09-3537, concerned a challenge to a conviction of defendant for possession of 5 grams or more of a mixture containing cocaine base with the intent to distribute.  In affirming the conviction, the court held that the facts were sufficient for the officers to possess a reasonable factual basis to believe that there was sufficient probable cause to obtain a warrant; and 2) defendant has provided no basis for the court to conclude that the credibility determination was clear error.

US v. Cozzi, 09-2648, involed a challenge to the district court's denial of a former police officer's motion to dismiss an indictment charging him with violating a victim's civil rights, in convicting defendant for violating 18 U.S.C. section 242 and imposing a 40-month sentence.  In affirming bothe the conviction and the sentence, the court held that a tip to the FBI was not an improper use of defendant's immunized statements, and that the district court correctly calculated the applicable guideline range.

Swanson v. Citibank, N.A., 10-1122, concerned a pro se's suit against Citibank and other individual defendants claiming that defendants discriminated against her on the basis of her race (African-American) when Citibank turned down her application for a home-equity loan, district court's dismissal of the suit for failure to state a claim.  In affirming in part, the court held that the district court did not err in dismissing plaintiff's fraud claim against Citibank as there was absence of particular information required under Rule 9. The court also held that the district court correctly dismissed plaintiff's common-law fraud claim against the appraisal defendants as she has not adequately alleged that she relied on their appraisal, nor has she pointed to any out-of-pocket losses that she suffered because of it.  However, the court reversed in part as, the district court erred in dismissing plaintiff's Fair Housing Act claim against Citibank as the complaint included all that the plaintiff needed to put in the complaint, and also erred in dismissing plaintiff's Fair Housing Act claims against the appraisal defendants as she has pleaded enough to survive a motion under Rule 12(b)(6); and 4)

Siegel v. Shell Oil Co., 09-3451, concerned a challenge to the district court's denial of class certification and entry of summary judgment for the defendants, in plaintiff's motion for class certification, seeking relief under both the Illinois Consumer Fraud (ICFA) and Deceptive Business Practices Act and the common law doctrine of unjust enrichment, in his suit against five of the eight largest oil companies.  In affirming the judgment, the court held that the district court did not abuse its discretion in determining that questions of fact common to class members did not predominate over any questions affecting only individual members.  Also, plaintiff's  ICFA claim is rejected as he cannot show that the defendants' conduct caused him to purchase their gasoline, and absent that the defendants engaged in unfair practice, plaintiff's unjust enrichment claim is not viable.

Parish v. Elkhart, 09-2056, concerned a challenge to the district court's dismissal of all of plaintiff's state law claims on the ground that they were barred by Indiana's statute of limitations in plaintiff's civil rights case against a city and several officers for serving eight years of a thirty-year prison sentence for attempted murder, of which all charges were dropped after his release.  The court affirmed the dismissal as to the false arrest and false imprisonment claims but reversed as to an intentional infliction of emotional distress claim as, under Indiana's adoption of Heck, plaintiff could not have brought the claims until his conviction was disposed of in a manner favorable to him, and as such, plaintiff brought his claim within two years of when the claim accrued upon his exoneration.

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US v. Olmeda-Garcia, 09-3042, In a prosecution of defendant for illegal re-entry into the United States, district court's imposition of a 64-month sentence is affirmed as the only potential error defendant identified is the district court's silence with respect to a possible disparity that could arise between defendant's sentence and those available to defendants in other districts, and here, defendant did not adequately develop this argument and the district court was entitled to hand down an otherwise procedurally and substantively sound sentence without discussing the point.

US v. Diaz-Gaudarama, 09-4048, concerned a challenge to the district court's refusal to credit defendant with a two-point reduction for acceptance of responsibility in a prosecution of defendant for conspiring to distribute methamphetamine, cocaine, and marijuana.  In affirming the denial, the court held that defendant is not entitled to a reduction in his advisory guideline range for acceptance of responsibility, given defendant's attempt to avoid criminal responsibility for his actions, the absence of statements by defendant reflecting remorse for his crime, and the last-minute nature of his attempt to plead guilty.

Mosley v. City of Chicago, 09-3598, concerned a challenge to the district court's grant of summary judgment in favor of the defendants in plaintiff's section 1983 suit against the City of Chicago and several of its police officers, arising from his arrest and prosecution for murder, of which he was acquitted at trial after approximately five years in jail.  In affirming the judgment, the court held that there is no evidence in the record that the officers withheld any materially favorable piece of evidence, and even assuming that a Brady violation could occur when a trial ends in acquittal, this claim cannot rise to the level described in Bielanski v. County of Kane, 550 F.3d 632 (7th Cir. 2008).  The court also held that the district court did not err in concluding that the defendants had probable cause to press forward with the prosecution and therefore plaintiff could not maintain a claim for malicious prosecution, nor in granting summary judgment on plaintiff's civil conspiracy claim.

Louis & Karen Metro Family, LLC v. Lawrence Conservancy Dist., 09-2418, concerned a plaintiff's breach of contract suit against a city and a conservancy district, claiming that the defendants breached their option contract to acquire land.  In affirming in part, the court held that the district court correctly concluded that a breach occurred as the defendants' failure to allow the plaintiffs to exercise the option within 18 months of the decision to cancel the flood control project was a breach of the contract.  Court also held that the district court did not abuse its discretion in deciding to invoke the equitable remedy of reformation.  However, the district court's order of reformation of an option contract to extend the date by which the option could be exercised in denying plaintiffs' request for money damages is vacated and remanded as the closest that one can come to making plaintiff whole for the shortfall in compensation is to determine how much it lost at the moment that the option became impossible to exercise.

Kovacs v. US, 09-3328, concerned a challenge to the district court's order affirming the bankruptcy court's dismissal of plaintiff's claim for lack of jurisdiction in a taxpayer's suit against the United States seeking to recover damages resulting from the Internal Revenue Service (IRS), claiming violation of the discharge injunction provided by section 524 of the Bankruptcy Code, arising from an Offer and Compromise (OIC) that she entered into with the IRS to resolve her tax liabilities for tax years 1990 through 1995.  In affirming in part, the court held that, due to the unequivocal exclusivity provision of 26 U.S.C. section 7433, the district court did not err in determining that plaintiff must comply with the jurisdictional provisions of section 7433 prior to recovery for a willful violation of the discharge injunction.  The court also held that the district court did not err in holding that plaintiff's cause of action with respect to IRS's July 8, 2002 collection effort is time-barred. However, the court reversed in part and remanded as, the district court erred in holding that plaintiff's claim with respect to IRS's September 8, 2003 and September 18, 2003 violations was time-barred.

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US v. Gorman, 09-3010, concerned a challenge to a conviction of defendant for perjury after testifying falsely before a grand jury.  In affirming the conviction, the court held that ample evidence supported the finding that defendant perjured himself with regard to his possession of a Bentley and, that the admission of the evidence relating to defendant's theft of the car was direct evidence of his charged perjury conduct and its probative value was not substantially outweighed by any risk of unfair prejudice.

US v. Gary, 09-2862, concerned a challenge to the district court's imposition of a 12 months and 1 day imprisonment upon a defendant in a prosecution for bankruptcy fraud, for failing to disclose that his ex-wife had received a substantial monetary settlement for a workers' compensation claim just days before filing their joint Chapter 13 bankruptcy petition.  In affirming the sentence, the court held that the district court gave the family issue sufficient consideration as shown by its efforts to arrange for defendant and his ex-wife to serve staggered prison sentences for their joint crimes.

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US v. Alaka, 09-3423, concerned a challenge to the district court's determination finding defendant responsible for the entire loss caused by the operation at his sentencing hearing, in his prosecution for participating in a conspiracy to steal identifying information from customers of Washington Mutual bank and use it to make fraudulent transfers from their accounts.  In affirming , the court held that the district court's determination that defendant, through the conspiracy, was responsible for $267,000 in loss is not clearly erroneous, and any error with respect to loss from a certain individual's account is harmless.

Prime Eagle Group Ltd. v. Steel Dynamics, Inc., 09-1663, concerned a steel mill company's assignee's suit against a defendant, who had contracted with the company to help develop running a steel mini-mill located in Thailand and to lend assistance in raising capital, claiming that it chose fraud as its means of exit and must pay damages in tort.  In affirming the district court's entry of judgment for defendant in concluding the suit untimely under the six-year statute of limitations in Indiana, the court held that the company's president's knowledge is imputed to the company and thus, the company knew in fall 1998 that defendant's assertions were false, or at least questionable enough to justify an investigation.  Therefore, the company's injury began no later than July 1999 when its investors withdrew their support, left the plant idle, and threw the firm into insolvency.

Marion County Coroner's Office v. Equal Employment Opportunity Comm'n, 09-3595, concerned a coroner's office's petition for review of a finding by the Equal Employment Opportunity Commission (EEOC) administrative law judge's (ALJ) finding that the coroner's office took action against a white chief deputy coroner, based on his race and in retaliation for an internal complaint that he filed against a coroner, an African-American male.  The court denied the petition in part, and granted in part, and vacated the compensatory damages award.  The court held there was substantial evidence of race discrimination.  However, the evidence in this case does not come close to supporting the $200,000 award for compensatory damages, as based on review of the evidence and comparable cases, a remittitur to $20,000 would keep the award within rational limits.

Gburek v. Litton Loan Servicing LP, 08-3776, concerned a challenge to the district court's grant of defendant's motion to dismiss in a homeowner's suit against her mortgage service provider, claiming that it had engaged in illegal debt-collection practices in violation of the Fair Debt Collection practices Act (FDCPA).  In reversing the dismissal, the court held that, generally, a communication from a debt collector to a debtor is not covered by the FDCPA unless it is made in connection with the collection of any debt, and here, plaintiff's mortgage was in default, and the text of the letters indicate they were sent to induce her to settle her mortgage-loan debt in order to avoid foreclosure.  Therefore, the complaint sufficiently alleges communications that were sent in connection with an attempt to collect a debt, and in violation of the FDCPA.

Bd. of Tr. of the Univ. of Illinois v. Organon Teknika Corp. LLC., 09-3375, concerned a university's suit against a subsidiary of the pharmaceutical manufacturer Merck & Co., and its licensee of some intellectual property rights needed to make a certain cancer drug, seeking to compel the subsidiary to resume arbitration concerning reopening the royalty rate.  In vacating the district court's dismissal of the suit on the ground that there was no dispute to resolve because the arbitrator had not made a final award, the court remanded with instructions to enter a judgment dismissing the suit with prejudice as defendant is entitled to a decision on the merits as Rule 60(c)(1) gives the parties one year to present newly discovered evidence in support of a motion under Rule 60(b)(2), and here, the parties bargained for a final and conclusive decision, not for perpetual arbitration.

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US v. Ciesiolka, 09-2787, concerned a challenge to a conviction of defendant for knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under 18 U.S.C. section 2422(b).  In reversing the conviction and remanding for a new trial, the court held that the crime with which defendant was charged required the government to prove beyond a reasonable doubt that the defendant believed that the woman was under 18 and the district court improperly relieved the government of his burden by providing the jury with an ostrich instruction.  The court also held that the district court failed to explain its ruling that the four-factor test for introducing evidence of prior acts under Rule 404(b) was satisfied and the evidence introduced in unconstrained fashion was perhaps excessively prejudicial in light of its probative value.

Borovsky v. Holder, 09-3104, concerned a petition for review, by a citizen of Ukraine, of an order of the BIA denying his application for withholding of removal and protection under the Convention Against Torture (CAT).  In denying the petition, the court held that, although the BIA's apparent misunderstanding that Eighth Circuit law controlled does not undermine its primary ground of decision, that petitioner failed to show persecution under the standard for withholding of removal, the BIA's Eighth Circuit case citations did not affect the outcome.  The court also held that the denial of petitioner's claims for withholding or removal and CAT protection is supported by reasonable, substantial, and probative evidence.

Anderson v. Aon Corp., 09-1144, concerned a challenge to the district court's judgment dismissing plaintiff's complaint under Rule 12(b)(6) after determining that Illinois law supplies the rule of decision in plaintiff's suit against a corporation alleging a holder claim under California law and RICO, the latter claim which plaintiff dismissed, claiming that but for the corporation's fraud, he would have sold the stock before its price dropped.  In reversing and remanding, the court held that California would elect to use its own law and would entertain plaintiff's holder action as plaintiff is a citizen of California, he sold his business in California to defendant and received the corporation's stock there.

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Ward v. Jenkins, 08-2809, concerned a challenge to the district court's denial of defendant's request for habeas relief from his conviction for felony theft by contractor and felony bail jumping after taking down payments from customers of his home improvement business without doing any of the work he contracted to do.  In remanding the matter, the court held that defendant is entitled to an evidentiary hearing regarding his claim that his counsel rendered ineffective assistance by refusing to file a motion to withdraw his guilty plea.

US v. Sanders, 09-1119, concerned a challenge to a conviction of defendant for being a felon in possession of a firearm and a 105-month sentence.  In affirming both the conviction and the sentence, the court held that the district court's limitation on the exploration of the Miranda issue, if error at all, was harmless, and that defendant's challenge to the district court's application of a two-level sentencing enhancement for obstruction of justice is frivolous.

Portis v. City of Chicago, 09-1498, concerned a class action lawsuit against the city of Chicago, alleging that taking more than two hours to perform the steps needed to get from the generation of a Central Booking number to an arrestee's release makes the detention unreasonable and violates the Fourth Amendment.  The court reversed the district court's two-hour rule in agreeing with the plaintiffs, in concluding that the district court did not explain why it set a time limit for a particular part of the process.  Furthermore, what is reasonable or not is how much time passes between arrest and release, in relation to the reasons for detention, the time for each step along the way is not subject to an independent limit. The court also held that, because reasonableness is a standard rather than a rule, and because one detainee's circumstances differ from another's, common questions do not predominate and class certification is inappropriate.

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US v. Rappe, 09-2478, concerned a challenge to a conviction of defendant for conspiring to commit an offense against the United States, obstructing justice, destroying property to prevent its seizure, and failing to register as a sex offender.  In vacating defendant's conviction under section 2250, the court remanded for resentencing as section 2250 does not apply to sex offenders whose interstate travel occurred prior to Sex Offender Registration and Notification Act's (SORNA) effective date, and here, defendant's most recent interstate trip occurred one day before SORNA was made applicable to defendant through an interim regulation issued by the Attorney General.

Roadway Express, Inc. v. U.S. Dep't of Labor, 09-1315, concerned a defendant-employer's petition for review of the Administrative Review Board's (ARB) decision on remand, finding that defendant failed to meet the burden of proving that it would have fired the plaintiff in the absence of his protected conduct.  In denying the petition, the court held that the ARB was entitled to find that reinstatement was an appropriate remedy in this case because there is more than enough evidentiary support for the ARB's conclusion that plaintiff's driving history does not indicate that he is unfit to drive a truck.

Griffith v. Rednour, 09-2518, concerned a challenge to the district court's dismissal of defendant's request for habeas relief for his murder conviction as untimely.  In affirming, the court held that a state proceeding is no longer pending once the state court has made its decision and the time to seek further review has expired.  Here, the year prescribed by section 2244(d)(1) expired on November 17, 2006 and defendant's federal petition was 13 days late.  Lastly, the court held that defendant's counsel's negligence does not extend the time for filing a collateral attack.

FM Indus., Inc. v. Citicorp Credit Serv., Inc., 08-3154, involved a suit for copyright infringement, related to a computer software designed to help lawyers to collect debts and lenders to monitor how its lawyers are doing.  In affirming the judgment of the district court for the most part, the court held that the district judge properly dismissed the complaint for lack of prosecution, and also held that the judgment ordering plaintiff to pay defendants' legal fees under 28 U.S.C. section 1927 for vexatiously multiplying the proceedings was proper.  However, the court reversed the district judge's award of fees against a copyright specialist who assisted defendant's counsel, as personal responsibility is essential to an award of sanctions under section 1927.

Auto-Owners Ins. Co. v. Munroe, 09-3427, concerned an insurer's action for declaratory judgment, arising from a settlement agreement between the plaintiffs in the underlying suit releasing those responsible for causing a severe tractor-trailer accident from any individual liability above their liability insurance coverage.  In affirming the district court's grant of the insurer's motion for summary judgment the court held that the insurance policy unambiguously limits coverage to $1,000,000 per occurrence, and here, there was a single occurrence because there was a single continuous event.  Court also held that the MCS-90 endorsement does not affect the insurer's liability because it applies only if triggered by an unpaid final judgment against one of the defendants in the underlying suit.

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US v. Dokich, 08-2850, concerned a challenge to the district court's imposition of a 84-month sentence and an order of restitution in the amount of $55,971,122  in a conviction of defendant for mail fraud and illegal structuring transactions, arising from a fraudulent scheme to sell stock in a company that claimed to be developing diagnostic tests for HIV, mad-cow disease, and blood glucose levels.  In affirming the conviction and the order of restitution, the court held that, while there were problems in the calculations of loss, defendant has not identified any error that resulted in the sort of miscarriage of justice that would require reversal.

India Breweries, Inc. v. Miller Brewing Co., 08-4109, concerned a challenge to the district court's grant of defendant's motion for summary judgment in a suit for breach of contract by a beer brewer and distributor, claiming that Miller Brewing Company had a contractual duty to inspect any brewery it proffered and failed to act in good faith in refusing to make inspections.  In affirming the judgment, the court held that no genuine issue of material fact exists and defendant is entitled to judgment as a matter of law because the agreement between the parties is not ambiguous as to defendant's duty to inspect breweries.

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Conviction of Defendant for Bank Robbery Upheld

US v. Sykes, 08-2558, concerned a challenge to the district court's conviction of defendant for four counts of bank robbery.  In affirming the conviction, the court held that the district court did not abuse its discretion when it dismissed the charges against defendant without prejudice, as the judge thoroughly considered the section 3162(a)(2) factors.  The court also held that the record does not support defendant's claim that his pretrial detention deprived him of meaningful access to the courts.  Lastly, the court held that, although the district court should not have given jurors free rein to directly question the witnesses, defendant has not established prejudice.

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Gardin v. Shinseki, 09-7120, concerned a challenge to the United States Court of Appeals for Veterans Claims' (Veterans Court) affirmance of the Board of Veterans Appeals' denial of a veteran's claim for disability compensation for diabetes, on the ground that the disease was not service-connected.  In vacating the judgment, the court remanded the matter in holding that the Veterans Court committed legal error by discounting petitioner's doctor's opinion merely because there was no evidence that he reviewed petitioner's medical service record.  However, the court held that the Veterans Court did not commit legal error when it affirmed the Board's determination that petitioner's lay evidence was not credible.

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Medmarc Cas. Ins. Co. v. Avent Am. Inc., 09-3390, concerned a duty to defend case arising from an underlying class action suit filed against a company for using Bisphenol-A (BPA) in their products without informing consumers of risks associated with the potential leaching of BPA.  In affirming the district court's grant of insurance companies' motion for declaratory relief, the court held that the underlying suits are not covered by the policies because the claims are limited to economic damages due to the purchase of unusable products, and these damages are not "because of bodily injury" and the complaints do not allege any bodily injury occurred.

Li v. Holder, 09-3511, concerned a Chinese citizen's petition for review challenging the validity of the BIA's denial of her motion to reconsider its order denying her application for asylum.  In granting the petition, the court held that the denial vacated as the BIA overlooked critical facts such as Chinese officers using force to extract urine from the petitioner in enforcing China's one-child policy, jailing her until her family paid a fine equal to a third of her year's wages and feeding her tainted food in the jail, and the BIA unconvincingly denied having overlooked such facts.

Gacek v. Am. Airlines, Inc., 09-3131, concerned a former baggage handler's suit against an airline for retaliatory discharge in violation of the Illinois Workers' Compensation Act.  In affirming the grant of summary judgment for the airlin, the court held that no reasonable jury could find that the airline had fired plaintiff because its claims administrator had opened a file on an injury rather than because it believed that he had lied about having the flu and had disobeyed the doctor's orders to wear a splint on an injured finger and not lift anything with that hand.

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Crack Cocaine Conviction, Plus Immigrations Matter

US v. Booker, 08-4180, concerned a challenge to a defendant's conviction for possession with intent to distribute more than 50 grams of crack and sentence of 25-years' imprisonment.  In affirming, the court held that the DEA had probable cause to search defendant and his truck as soon as he arrived at the address in question.  The court also held that defendant's sentence was procedurally sound and that the district court's sentencing was substantively reasonable as it followed the procedure set out in Gall and the Sixth Amendment did not prohibit the court from accounting for the fact that defendant was not only a drug dealer, but also a convicted felon who carried a weapon.

Marin-Rodriguez v. Holder, 09-3105, concerned a Mexican citizen's petition for review of the BIA's dismissal of petitioner's motion to reconsider an order of removal for lack of jurisdiction under section 1003.2(d), on the ground that petitioner had already been removed to Mexico.  In granting the petition, the court held that section 1003.2(d) is untenable as a rule about subject-matter jurisdiction as the Immigration and Nationality Act authorizes the Board to reconsider or reopen its own decision, and it does not make that step depend on the alien's presence in the United States.

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US v. Skoien, 08-3770, concerned a challenge to a conviction of defendant for possessing firearms while on probation for his second misdemeanor conviction for domestic violence.  In affirming the conviction, the court held that defendant's claim that section 922(g)(9) violates the Constitution's Second Amendment is rejected as a disqualification-on-conviction statute such as section 922(g)(9) is generally proper.

Collins v. Gaetz, 09-2212, concerned a challenge to the district court's denial of defendant's request for habeas relief from a conviction for first-degree murder of his girlfriend.  In affirming, the court held that the state's court's finding that defendant validly waived his Miranda rights was not contrary to or unreasonable application of federal law.  The court also held that the Supreme Court never held that police can render a waiver of Miranda rights involuntarily simply by failing to take "special care" that a suspect with a mental disability understands his rights.  Furthermore, although defendant produced significant evidence of his limited mental capacity at the time his gave his statement, state courts were not unreasonable in determining that defendant understood to the requisite degree both the Miranda warnings and the consequences of waiving his rights.

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US v. Nance, 09-3786, concerned a defendant's challenge to his 180-month sentence for receiving child pornography.  In affirming the sentence, the court held that the district court did not err in calculating defendant's criminal history score using his conviction that had been considered as part of a pattern of activity involving the sexual exploitation of a minor under section 2G2.2(b)(5), as note 3 to section 2G2.2 creates an exception to the general rule that relevant conduct may not be considered when computing a defendant's criminal history score.  The court also held that the district court did not err in finding that non-victim materials defendant possessed at the time he received the victim materials were relevant conduct.  Lastly, the court held that the sentence was both procedurally sound and substantively reasonable.

Qiu v. Holder, No. 09-3512, concerned a Chinese citizen's petition for review of the BIA's affirmance of an IJ's denial of his application for asylum on the ground that petitioner failed to establish that he was subject to a well-founded fear of persecution upon return to China.  In granting the petition, the court held that the evidence establishes that the State Department reports and petitioner's own credited testimony established that he is a Falun Gong practitioner, that the practice of Falun Gong is outlawed in China, that the Chinese police knew that he is a Falun Gong practitioner, that the practice of Falun Gong is outlawed in China, that the Chinese police know he practices Falun Gong, that China persecutes Falun Gong practitioners, and that the only way petitioner can avoid persecution is to cease the practice of Falun Gong or hope to evade discovery.

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Decisions in Immigration, Criminal and Attorney Fees Matters

US v. Rodgers, 09-3364, concerned a challenge to the district court's imposition of a 78-month sentence in a conviction of defendant for possession of child pornography.  In affirming the sentence, the court held that, now that the guidelines are advisory, a district court may vary from the guidelines when it concludes that they do not reflect "empirical data and national experience."  The court rejected defendant's claim that the sentencing enhancement for sadistic or masochistic conduct or other depictions of violence impermissibly double counts conduct already taken into account by the base offense level for possessing child pornography, as the application of section 2G2.2(b)(4) properly took into account aggravating circumstances, not the base offense conduct.  Lastly, having waived a challenge to the factual basis of the PSR, the court held that the defendant cannot now seek to invalidate his sentence for lack of evidentiary support.

US v. Munoz, 09-1118, involved sentencing issues in convictions of two defendants for participating in large document forgery operation known as the Leija Sanchez Organization, which provided false green cards, driver licenses, and social security numbers to illegal immigrants.  In affirming the district court's imposition of above-guidelines sentences for both defendants, the court rejected the defendants' challenges to the substantive reasonableness of the sentences and other claims.  However, district court's order mandating that one of the defendants participate in the Inmate Financial Responsibility Program, is modified to make clear that participation in the program is voluntary.

Umezurike v. Holder, 08-2519, concerned a Nigerian citizen's petition for review of the BIA's denial of his motion to reconsider its decision affirming the IJ's determination that the petitioner abandoned his opportunity to pursue asylum and related relief.  In denying the petition, the court held that the immigration judge did not abuse her discretion in denying a continuance and finding that petitioner had abandoned his application for failure to comply with the fingerprinting requirements.  Furthermore, petitioner's failure to timely file documentary evidence adds further support to the conclusion.

In the Matter of: Solis, 09-4075, concerned a challenge to the district court's affirmance of bankruptcy court's denial of an attorney's claim against the estate for $49,719.63 in attorney fees and costs in Chapter 7 proceedings.  In affirming the judgment, the court held that, under the terms of the contingent fee agreement, the attorney is entitled to a percentage of only the money he actually recovered from other parties, not a percentage of the money the debtor had received earlier.

Byers v. Basinger, 09-1833, concerned a challenge to the district court's denial of defendant's request for habeas relief challenging his conviction for first degree murder, attempted murder, and robbery, claiming ineffective assistance of counsel.  In affirming and denying the petition, the court held that defendant did not exhaust his claim on the restraints ground, and that defendant has not established a violation of his right to effective assistance of counsel.

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US v. Faulds, 09-3245, concerned a challenge to defendant's convictions for distributing and possessing child pornography.  In affirming the convictions, the court rejected defendant's double jeopardy violation claim in holding that the Blockburger test is implicated only where the same act or transaction constitutes a violation of two distinct statutory provisions, and here, defendant's two convictions are based on different acts that occurred over a period of more than a month.

Sweeney v. Bartow, 10-1447, concerned a defendant's petition for a certificate of appealability challenging state court proceedings to commit him civilly as a sexually violent person, claiming that the use of his assault convictions as the basis for civil detention as a sexually violent person would infringe the ex post facto clause.  In denying the petition, the court held that, if all a defendant in a state proceeding had to do in order to obtain federal court review of his federal claims before the proceeding was over was to move to dismiss and exhaust state remedies, Younger would be a dead letter.

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Plus, Copyright Infringement, Criminal, and Constitutional Matters

US v. Blagojevich, 10-2359, concerned a district court's denial of motion to intervene brought by newspaper organizations and other media groups, iIn the criminal prosecution of former Illinois Governor Blagojevich, claiming that the names of jurors should be released as soon as the jurors are seated, rather than being released at the end of trial.  In reversing the district court's denial and vacating the deferred-disclosure order, the court held that before it can be determined whether the district judge abused his discretion in thinking that the presumption in favor of releasing jurors' names as soon as they are seated has been overcome, a hearing must be held so that the justification for and alternatives to the delayed release can be addressed.

US v. Bedolla-Zavala, 09-3690, concerned a challenge to the district court's imposition of a 78-month sentence in a prosecution of defendant for distributing cocaine in excess of 500 grams.  In affirming the sentence, the court held that the district court's application of the obstruction of justice enhancement was correct because the false information defendant provided to the pretrial officer who prepared the bail report was material.

River of Life Kingdom Ministries v. Village of Hazel Crest, 08-2819, involved a church's suit seeking a preliminary injunction against the village's enforcement of a zoning ordinance that excludes new noncommercial uses from its district, under the equal-terms provision of the Religious Land Use and Institutionalized Persons Act.  In affirming the district court's dismissal of the complaint in an en banc decision, the court held that if religious and secular land uses are treated the same from the standpoint of an accepted zoning criterion, such as "commercial district," or "residential district," or "industrial district," that is enough to rebut an equal-terms claim and thus, in this case, to show that the church is unlikely to prevail in a full litigation.

Golden v. Helen Sigman & Assoc., Ltd., No. 08-1506, concerned a challenge to the district court's judgment abstaining with respect to plaintiff's copyright infringement claim, dismissal of the remaining claims, and imposition of sanctions for not paying attorneys' fees and expenses in plaintiff's multi-count federal lawsuit against various defendants in connection with his divorce and child custody proceedings. In affirming the district court's judgment, the court held that the absolute immunity and the Rooker-Feldman doctrine bar plaintiff's section 1983 claim against the child's representative.  Further, the court held that the district court's award of attorneys' fees accurately reflects the data contained in the billing records.

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US v. Tapia, No. 09-1426, concerned a challenge to a conviction of defendant for being a felon in possession of a firearm and district court's imposition of a 120 months' enhanced sentence based on its determination that the defendant had used the firearm in connection with another felony.  In affirming both the conviction and the sentence, the court held that the manner in which the firearm was discovered was constitutional because the police had ample evidence reasonably to believe that armed gang members may have been in the house.  The court rejected defendant's claim that the district court failed to meet its procedural obligations when it did not resolve all contested issues of material fact as without merit.  The court also rejected defendant's claim that the district court wrongly sentenced him based on unreliable evidence as without merit.

US v. Perez, 08-2566, concerned a challenge to a conviction of defendant for filing false federal income tax returns and sentenced to 33 months' imprisonment.  In affirming, the court held that the district court did not violate defendant's right to be present at trial by conducting a jury instruction conference in his absence because such a conference concerns questions of law which is exempt from Fed. Rule of Crim. Proc. 43.  The court also held that the defendant waived any challenge to the district court's failure to provide a jury instruction on the government's net worth and expenditure method of proof, as well as any challenge to the district court's limitation on his expert witness's testimony.  Lastly, the court held that the  evidence was more than sufficient to support jury finding that defendant willfully filed false income tax returns in violation of section 7206(1).

US v. Paige, No. 09-3060, concerned  a challenge to the district court's imposition of a 96-month sentence for four bank robbery convictions,  In affirming the sentence, the court held that the district judge discussion of defendant's difficult childhood and previous convictions and other considerations make it clear that the judge gave meaningful consideration to section 3553(a) factors.

US v. Neal, No. 08-3611, concerned a challenge to the district court's denial of defendant's motion to reduce his sentence of 137 months for his crack cocaine offenses based on Amendment 706.  In vacating the sentence and remanding for resentencing, the court held that the district judge's reliance on defendant's prison disciplinary record is outside the scope of the presentence report, and by withholding the information until the day on which the time for appeal expired, the district court disabled defendant from requesting a hearing or presenting any evidence of his own that would call into question the judge's understanding of his record or cast his intra-prison conduct in a better light.

Lastly, US v. Dinga, 09-2956, concerned a challenge to a conviction of defendant for making a false statement to a federal law enforcement officer in connection with several firearm purchases.  In affirming the conviction, the court first held that there was sufficient evidence to uphold defendant's conviction.  Therefore, the court rejected defendant's challenge to an evidentiary ruling excluding his offer to take a polygraph as meritless and held that the district court properly applied the two-level enhancement for obstruction of justice.

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  • Full text of US v. Tapia
  • Full text of US v. Perez
  • Full text of US v. Neal
  • Full text of US v. Dinga
  • Full text of US v. Paige

Estrada-Ramos v. Holder, No. 09-3611, concerned a Mexican citizen's petition for review of BIA's affirmance of DHS's decision rendering invalid petitioner's move to permanent resident status, on the basis of a criminal conviction in California in 1991 that was later set aside pursuant to state law.  In denying the petition, the court held that petitioner's conviction must have been set aside for ameliorative purposes as he does not dispute that he was convicted of cocaine possession with intent to sell and he does not claim there was any defect in the California proceeding against him.

Murphy v. Eddie Murphy Prod., Inc., No. 09-3267, concerned a challenge to the district court's denial of plaintiff's motion for an extension of time to file an amended complaint in dismissing his third lawsuit in his suit against the famous television and a motion film entertainer, Eddie Murphy, and others, claiming that defendants used copyrighted material from his videotape to create and broadcast an animated television show "The PJs." In affirming the decision, the court held that the district court was well within its discretion to deny plaintiff's motion because he did not miss the court-ordered deadline due to excusable neglect.  Furthermore, the futility of plaintiff's proposed amendment serves as an additional, independent ground for refusing to enlarge the time for him to file his amended pleading.

Santa's Best Craft, LLC. v. St. Paul Fire & Marine Ins. Co., No. 08-3572, concerned plaintiff's suit against its insurer, arising from an underlying suit against the plaintiff over its marketing of Christmas lights for copying packaging design and for using false and deceptive language. In affirming the district court's judgment, the court held that the insurer had, but did not breach, a duty to defend, and that the district court properly declined to require the insurer to reimburse plaintiff's contract indemnitee's expenses.  However, the court remanded the case to resolve whether the insurer owes prejudgment interest on litigation expenses and reimbursement for the settlement expenses in the underlying suit.

US v. Vasquez, No. 09-2411, concerned a challenge to a conviction of defendant for knowingly failing to register as a sex offender after traveling in interstate commerce.  In affirming, the court held that the Sex Offender Registration and Notification Act (SORNA) merely requires that a defendant have knowledge that he was required by law to register as a sex offender, and the government need not prove that a defendant must also know that registration is mandated by a federal statute.  Furthermore, a rational basis existed under the Commerce Clause for Congress to enact section 2250.

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