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

December 2010 News

US v. West, 10-1292

Denial of motion to suppress in-custody lineup identification vacated for failure to address Wade factors

US v. West, 10-1292, concerned a challenge to the district court's grant of a motion to suppress an in-custody lineup identification on the grounds that the lineup violated defendant's Sixth Amendment right to counsel, but ultimately allowing the lineup witnesses to make in-court identifications, in a prosecution of defendant for armed bank robbery and for using a firearm during a crime of violence.


Equal Employment Opportunity Comm'n v. Autozone, Inc., 10-1353

EEOC's ADA action

Equal Employment Opportunity Comm'n v. Autozone, Inc., 10-1353, concerned a challenge to the district court's grant of summary judgment on a failure-to-accommodate claim, in the Equal Employment Opportunity Commission's (EEOC) suit on behalf of defendant's former employee under the Americans with Disabilities Act.


In re: Text Messaging Antitrust Litig., 10-8037

Antitrust litigation charging defendants with conspiring to fix prices of text messaging services

In re: Text Messaging Antitrust Litig., 10-8037, concerned defendants' interlocutory appeal challenging the district court's grant of plaintiffs' motion to file a second amended complaint in their class action suit claiming that defendants conspired to fix prices of text messaging services in violation of federal antitrust law.  In affirming the ruling, the court held that the district judge was right to rule that the second amended complaint provides a sufficiently plausible case of price fixing to warrant allowing the plaintiffs to proceed to discovery.

 

LaBella Winnetka, Inc. v. Village of Winnetka, 09-3297

Restaurant owner's suit against a town for constitutional violations

LaBella Winnetka, Inc. v. Village of Winnetka, 09-3297, 09-3297, concerned a plaintiff's suit against a town and the town manager, claiming various constitutional violations and a state law claim for intentional interference with its lease and its prospective business expectancy, claiming that defendants prevented plaintiff from reopening its restaurant following a roof fire.

 

Opp v. Office of the State's Attorney of Cook County, 09-3714

Assistant state's attorneys excluded from ADEA coverage

Opp v. Office of the State's Attorney of Cook County, 09-3714, concerned a former assistant state's attorneys' suit against the county state's attorney, claiming unlawful employment termination in violation of the Age Discrimination in Employment Act (ADEA).

 

US v. Cartwright, 10-1879

Denial of motion to suppress firearm affirmed

US v. Cartwright, 10-1879, concerned a challenge to the district court's denial of a motion to suppress a gun found in the backseat of defendant's automobile during a traffic stop, in a conviction of defendant for being a felon in possession of a firearm.  In affirming, the court held that the district court properly found, based on the evidence and the police department's policy, that an inventory search would have been conducted and that the gun would have been found pursuant to such a search, and the evidence on the record supports this conclusion.

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US v. Taylor, 10-2947

Prior state conviction for Class C felony battery a crime of violence

US v. Taylor, 10-2947, In a prosecution of defendant for being a felon in possession of a firearm, district court's imposition of a 64-month sentence, based in part on its conclusion that defendant's prior state conviction for Class C felony battery qualified as a "crime of violence," is affirmed as the offense of which defendant was convicted - touching someone in a rude, insolent, or angry manner by means of a deadly weapon - qualifies as a crime of violence because such will ordinarily involve the threatened use of physical force. 

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Trademark infringement action

Bd. of Regents of Univ. of Wisconsin Sys. v. Phoenix Int'l Software, Inc., 08-4164, concerned the Board of Regents of the University of Wisconsin System's (Wisconsin) action challenging  the Trademark Trial and Appeal Board's (TTAB) grant of plaintiff's petition to cancel Wisconsin's registration of the mark "CONDOR" on the grounds that Wisconsin's registration would create confusion in trade.


Blockowicz v. Williams, 10-1167

Blockowicz v. Williams, 10-1167, concerned a challenge to the district court's denial of plaintiffs' request to order operators of a website, on which the defendants posted the defamatory statements, to remove the statements from their website, following the district court's entry of default judgment and a permanent injunction against defendants for posting defamatory comments about plaintiffs on certain websites.


US v. Boone, 09-1960

US v. Boone, 09-1960, concerned a challenge to a conviction of defendant for mail fraud and other offenses, arising from charges related to a political corruption scheme.  In affirming the conviction, the court held that the government  is entitled to establish the scheme and can rely on the evidence that occurred before and after the mailing in order to do so.  The court also held that the evidence of the interaction with one of the victims was admissible as direct evidence of the offense as it was directly relevant to establish a critical component of the scheme.  Lastly, the evidence regarding the two victims also served to establish an element of the offense - defendant's knowledge.


US v. Dortch, 09-3260

Sentencing challenge in bank robbery conviction

US v. Dortch, 09-3260, concerned a challenge to the district court's imposition of a statutory maximum sentence of 240 monthsIn a prosecution of defendant for bank robbery.  In affirming the sentence, the court held that defendant's arguments, that the district court erred in applying a two-level enhancement for a death threat based on the note he gave the bank teller and that the district court erred by enhancing his sentence twice for the same underlying conduct, are withut merit.  The court also held that, were the case remanded for resentencing, the district court would impose the same sentence regardless of whether it found that the officer suffered serious bodily injury,

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Parvati Corp. v. City of Oak Forest, 09-1107

Zoning dispute dismissed for lack of jurisdiction

Parvati Corp. v. City of Oak Forest, 09-1107, concerned a challenge to the district court's denial of plaintiff's Rule 60(b) for postjudgment relief and Rule 59(e) motion for reconsideration, in plaintiff's zoning dispute with a city over a hotel that plaintiff owned but wanted to sell.  In vacating the judgment, the court remanded the matter with instructions to dismiss for lack of jurisdiction, because plaintiff chose to accept its loss on the administrative review claim, dismissed its claims for damages, and permitted final judgment to be entered on the merits of the zoning challenge, and because now plaintiff no longer owns the property at issue, plaintiff lacks standing to reopen the judgment on that claim.

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Lin v. Holder, 10-1401

Petition for review of IJ's denial of a Chinese citizen's application for asylum and withholding of removal

Lin v. Holder, 10-1401, concerned a Chinese citizen's petition for review of a BIA's affirmance of an IJ's denial of his application for asylum and withholding of removal based on his wife's alleged abortion.


Khan v. Bland, 09-1735

Plaintiff's section 1983 suit against the housing authority

Khan v. Bland, 09-1735, concerned a plaintiff's suit against the Housing Authority of Champaign County (HACC), Secretary of Housing and Urban Development (HUD) and other HACC officials, for violation of his substantive and procedural due process rights under the Fourteenth Amendment pursuant to 42 U.S.C. section 1983, claiming that defendants wrongfully terminated his existing HAP contracts and debarred him from the Section 8 program without due process.


Fells v. US, 10-1537

Convenient store owner's challenge to a decision disqualifying him from participating in the Food Stamp Program

Fells v. US, 10-1537, concerned a challenge to the district court's affirmance of a final decision of the Food and Nutrition Service of the United States Department of Agriculture (USDA), permanently disqualifying plaintiff's convenience store from participating in the Food Stamp Program for engaging in the trafficking of food stamps.  In affirming the judgment, the court held that the the district court correctly found that plaintiff failed to satisfy his burden of proving by a preponderance of the evidence that the disqualification from the Program was invalid.


Bausch v. Stryker Corp., 09-3434

Plaintiff's suit against manufacturers, distributors and sellers of a hip replacement device not preempted

Bausch v. Stryker Corp., 09-3434, concerned a plaintiff's suit against manufacturers, distributors, and sellers of the Trident-brand ceramic-on-ceramic hip replacement system, claiming that she has been injured by the medical device and that the defendants violated federal law in manufacturing the device.


Trinity Homes LLC v. Ohio Cas. Ins. Co., 09-3613

General contractor's suit for coverage

Trinity Homes LLC v. Ohio Cas. Ins. Co., 09-3613, concerned a general contractors' suit against their insurers and an umbrella insurer seeking a declaration that all of the insurers had a duty to provide coverage for significant liabilities incurred related to a subcontractor's defective construction of residences.

 

US v. Hanna, 10-1331

Conviction for willfully refusing to pay child support

US v. Hanna, 10-1331, concerned a challenge to a conviction of defendant for willfully failing to pay a support obligation to a child residing in another state, in violation of the Deadbeat Parents Punishment Act of 1998.

 

US v. Plato, 09-2099

Crack cocaine convictions

US v. Plato, 09-2099, concerned a challenge to the district court's convictions of defendants for distributing crack cocaine.  In affirming, the court held that defendant waived his argument for separate trials because he failed to renew his pretrial motion for severance at the close of the evidence.  However, even if defendant had not waived his motion for severance, his argument is without merit as antagonistic defenses do not necessarily require severance, and defendant cannot show that the joint trial deprived him of a specific trial right.  The court also held that the district court did not abuse its discretion by replaying - in slow motion - the surveillance video of the drug sale.  Lastly, the court granted the co-defendant's counsel's motion to withdraw as there are no nonfrivolous appellate arguments available to him.

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US v. Taylor, 10-1304

Sentencing issue in defendant's conviction for bank robbery and parole violation

US v. Taylor, 10-1304, concerned a challenge to a conviction of defendant for bank robbery and for violating the terms of his supervised release relating to an earlier bank robbery conviction.  The court ordered a remand for a limited purpose as the district court erred by treating the policy statement recommendation in U.S.S.G. section 7B1.3(f) as mandating consecutive sentencing for defendant's bank robbery case and his supervised release case, rather than appreciating its discretion to impose the sentences either consecutively or concurrently.

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Arbitrability of union's grievances

Karl Schmidt Unisa, Inc. v. Int'l Union United Auto., Aerospace, & Agric. Implement Workers of Am., UAW  Local 2357, 09-4001, concerned an employer's suit against a union and two employees, seeking a declaratory judgment that the union's grievances regarding the supplemental retirement benefit are not arbitrable.

 

Sallenger v. City of Springfield, 08-3769

Civil rights suit against police and city for death of arrestee

Sallenger v. City of Springfield, 08-3769, concerned an estate's civil rights suit against police officers and a city for causing plaintiff's death during his arrest, claiming that the officers inadequately responded to the plaintiff's medical needs during the course of the arrest and that the city failed to train the officers in how to use hobbles (a cord that is looped around a suspect's lower legs and then connected to a strap that is attached to handcuffs).

 

US v. Alayeto, 10-2037

Exclusion of reverse 404(b) evidence in crack related conviction

US v. Alayeto, 10-2037, concerned a challenge to a conviction of defendant for possession with intent to distribute crack cocaine.  In affirming, the court held that the district court did not abuse its discretion in ruling defendant's proffered evidence of her co-defendant's post-arrest conduct inadmissible, and this exclusion did not violate defendant's constitutional right to present a complete defense as the evidence defendant sought to introduce could not have played a major role in casting doubt on her guilt.

 

US v. Tanner, 09-2370

Cocaine possession and distribution conviction

US v. Tanner, 09-2370, concerned a challenge to a district court's conviction of defendant for his involvement in a conspiracy to distribute large amounts of cocaine and imposition of a life

 

Myers v. Illinois Cent. R.R. Co., 10-1279

Railroad employee's negligence suit for his work-related injuries

Myers v. Illinois Cent. R.R. Co., 10-1279, concerned an employee's suit against the Illinois Central Railroad Company claiming that his injuries were caused by its negligence.  In affirming the district court's grant of summary judgment in favor of the Railroad, the court held that, because the nature of the trauma injuries that the employee accumulated required expert testimony establishing specific causation, and because the employee offered none, the district court did not err in granting summary judgment for the Railroad.


Promotor v. Pollard, 09-2292

Habeas petition for fourt counts of homicides by intoxicated use of a motor vehicle

Promotor v. Pollard, 09-2292, concerned a challenge to the district court's denial of defendant's request for habeas relief from his conviction for four counts of homicide by intoxicated use of a motor vehicle and two counts of causing injury by intoxicated use of a motor vehicle, and a grant of a Certificate of Appealability on the issue of whether the state courts violated defendant's due process rights by sentencing him based on inaccurate information.

Representation dispute over the rights of ariline mechanics

Int'l Bhd. of Teamsters Airline Division v. Frontier Airlines, Inc., 10-2291, concerned a representation dispute over whether the rights of mechanics were affected by a shift from Denver, where the mechanics are represented by the Teamsters Union, to Milwaukee, where maintenance is performed by nonunion workers.

US v. Adams, 08-4143

Crack cocaine related conviction

US v. Adams, 08-4143, concerned a defendant's challenge to his conviction and sentence for possession with intent to distribute and conspiracy to distribute crack cocaine.

US. v. Bradley, 10-1080

Sentencing challenge in a conviction for traveling interstate commerce to engage in sexual conduct with a minor

US. v. Bradley, 10-1080, concerned a challenge to the district court's imposition of a 240 months' imprisonment, in a prosecution of defendant for traveling in interstate commerce to engage in sexual conduct with a minor.  The court vacated the sentence and remanded for resentencing as the district court unreasonably based defendant's sentence on its speculation about prior criminal conduct and potential for recidivism.

 

Arrow Gear Co. v. Downers Grove Sanitary Dist., 09-1509

Suits under CERCLA against other polluters not barred by res judicata

Arrow Gear Co. v. Downers Grove Sanitary Dist., 09-1509, concerned plaintiffs' suits under section 113(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. section 9613(b), seeking to shift some of the costs to other polluters that plaintiffs had incurred as a result of having been found liable for groundwater contamination in a class action suit. 

 

Formella v. U.S. Dept. of Labor, 09-2296

Truck driver's petition for review of an ALJ's decision in favor of his former employer

Formella v. U.S. Dept. of Labor, 09-2296, concerned a plaintiff's petition for review of an administrative review board's (ARB) decision sustaining an administrative law judge's (ALJ) conclusion that plaintiff was not terminated because he refused to drive a vehicle that he believed to be unsafe but rather because of his conduct in expressing his concerns.

 

Gant v. US, 10-1574

Challenges to rensentencing following conviction for being a felon in possession of a firearm

Gant v. US, 10-1574, concerned a challenge to the district court's denial of defendant's request for habeas relief challenging the resentencing following a conviction for being a felon in possession of a firearm.

 

US v. Taylor, 10-2329

Motion for reduction of a crack cocaine sentence

US v. Taylor, 10-2329, concerned a challenge to the  district court's dismissal of defendant's motion under 18 U.S.C. section 3582(c)(2) for a reduction of his crack cocaine sentence, for lack of subject matter jurisdiction.  In affirming the dismissal, the court held that, although the district court had subject matter jurisdiction to consider the request, defendant is not eligible for relief because the relevant retroactive amendment to the Sentencing Guidelines did not actually have the effect of lowering the sentencing range applicable to him.

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In re: Wick, D-10-0015

An attorney disbarred and a request to resign denied

In In re: Wick, D-10-0015, an attorney is ordered disbarred and his request to allow resignation from the bar is denied, in disciplinary proceeding of the attorney for fraudulently overcharging is clients, as the attorney has no reason, financial or otherwise, for wanting to resign from the bar of this court other than to avoid the sanction of another disbarment.

Martin v. Bartow, 09-2947

Dismissal of habeas relief as untimely reversed

Martin v. Bartow, 09-2947, concerned a challenge to the district court's dismissal of defendant's petition for habeas relief from his civil commitment as a sexually violent person based on a 1988 conviction for second degree sexual assault.  In reversing, the court remanded the case in concluding that defendant's petition is not barred by the one-year statute of limitation in 28 U.S.C. section 2244(d)(1), as the district court incorrectly interpreted defendant's petition to be a challenge to the original 1996 commitment order, rather than to the 2005 order continuing commitment.

US v. Nicksion, 09-3732

Convictions for drug trafficking and firearm offenses

US v. Nicksion, 09-3732, concerned defendants' challenges to their convictions for drug trafficking conspiracy to procure large quantities of crack, cocaine, and marijuana from Chicago sources for distribution in Milwaukee, and various firearm offenses.

Relational, LLC v. Hodges, 09-3625

Presumption of service in plaintiff's suit against a guarantor

Relational, LLC v. Hodges, 09-3625, concerned a challenge to the district court's denial of defendant's motion to vacate a default judgment entered in favor of the plaintiff, in plaintiff's suit against a guarantor for failing to pay $750,000 of debt that his company owed to plaintiff. 

 

US v. Sonnenberg, 09-2801

Enhancement of defendant's sentence as a career offender reversed

US v. Sonnenberg, 09-2801, concerned a challenge to the district court's imposition of an enhanced sentence in treating defendant as a career offender under the sentencing guidelines, in a prosecution of defendant for crack cocaine distribution conspiracy.  In vacating the sentence, the court remanded for resentencing as, under the Supreme Court's decision in Begay v. US, 533 U.S. 137 (2008), defendant's Minnesota conviction for "intra familial sexual abuse" does not qualify as a crime of violence within the meaning of U.S.S.G. section 4B1.1.

 

US v. Krieger, 09-1333

Challenge to defendant's sentence for distribution of an opioid skin patch resulting in death

US v. Krieger, 09-1333, concerned a challenge to the district court's imposition of a mandatory statutory minimum of twenty years' imprisonment, in a conviction of defendant for distribution of divers amounts of fentanyl under 21 U.S.C. section 841(a)(1) and section 841(b)(1)(C), which resulted in the death of her friend. 

Campbell v. Astrue, 10-1314

Denial of social security benefits reversed

In Campbell v. Astrue, 10-1314, the court reversed and remanded the district court's affirmance of the Social Security Administration's denial of plaintiff's application for disability insurance benefits and supplemental income as, the ALJ erred in deciding to discount plaintiff's treating psychiatrist's assessment of his functional limitations and by failing to apply the factors enumerted in 20 C.F.R. sections 404.1527(d) and 416.927(d) in deciding what weight to give that assessment.

Grigsby v. LaHood, 10-1072

Air traffic controller's discrimination suit against the Department of Transportation

Grigsby v. LaHood, 10-1072, concerned a challenge to the district court's grant of summary judgment in favor of the Department of Transportation, in plaintiff's employment discrimination suit against the Secretary of the United States Department of Transportation, claiming that the FAA failed to select him as an Air Traffic Controller due to his Native American heritage.

Spiva v. Astrue, 10-2083

Denial of social security disability claims reversed

In Spiva v. Astrue, 10-2083, the court reversed and remanded the district court's affirmance of a denial of plaintiff's application for social security disability claim as, an ALJ is required to determine whether, despite his limitations, the applicant for benefits can do his previous work, and here, the ALJ made no finding concerning what jobs plaintiff might be capable of doing besides his previous job at Walmart, and how many such jobs might be available in the Milwaukee area.

US v. Hudson, 09-3680

Sentencing challenge in drug and firearm related conviction

US v. Hudson, 09-3680, concerned a challenge to the district court's imposition of a statutory mandatory minimum of 120-month sentence for a drug charge and to 60 months' imprisonment for gun possession in furtherance of drug dealing, to be served consecutively, in a conviction of defendant for drug and firearm related offenses.

Van Antwerp v. City of Peoria, 10-2455

Police officer's age discrimination suit

Van Antwerp v. City of Peoria, 10-2455, concerned an eighteen-year veteran police officer's discrimination suit against a city, claiming that the police department withdrew his transfer to a technician position, purportedly because the position did not become available as planned, only to offer the position to another officer four months later.

Jackson v. Parker, 09-3873

Plaintiff's Fourth Amendment claim against a police officer for "DUI frame-up"

Jackson v. Parker, 09-3873, concerned a challenge to the district court's grant of a police officer's motion for summary judgment, in plaintiff's Fourth Amendment claim against a police officer for false arrest, alleging that the officer did not have probable cause to arrest plaintiff for driving under the influence and other minor traffic violations.

 

Samirah v. Holder, 08-1889

Revocation of Jordanian citizen's advance parole

Samirah v. Holder, 08-1889, concerned a Jordanian citizen's petition for writ of mandamus seeking to direct the Attorney General to enable him to return to the United States for the purpose of reacquiring his status as an alien eligible for an adjustment of status.

 

Sellers v. Zurich Am. Ins. Co., 10-1448

Widow's claim for benefits under the accidental death and dismemberment insurance policy

Sellers v. Zurich Am. Ins. Co., 10-1448, concerned a challenge to the district court's affirmance of an insurer's denial of a widow's claim for benefits under the accidental death and dismemberment (AD&D) insurance policy, arising from her husband's death shortly after undergoing a surgery to remove a broken wire from his knee that was inserted over a year during a previous surgery for work-related injury.

 

US v. King, 09-1974

Drug conspiracy conviction of a high-ranking gang member

US v. King, 09-1974, concerned a challenge to a conviction of defendant for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and attempted possession with intent to distribute 500 grams or more of cocaine, and a 240-month sentence.

US v. Perez-Molina, 10-2427

Challenge to the sentence in conviction for unlawful entry

US v. Perez-Molina, 10-2427, concerned a challenge to the district court's imposition of 34-month sentence, more than twice as long as the high end of the applicable sentencing guideline range, in a conviction of defendant for unlawful entry into the United States following removal.  In affirming the sentence, the court held that the district court adequately justified its above-guideline sentence and acted well within its discretion by imposing a higher sentence to deter the defendant from continued reentry and criminal activity in the United States.

 

Deering v. Nat'l Maint. & Repair, Inc., 10-1716

Employer's counterclaim against riverboat pilot for damages forbidden under the Jones Act

Deering v. Nat'l Maint. & Repair, Inc., 10-1716, concerned a plaintiff's suit under the Jones Act against his employer for injuries sustained in an accident aboard a towboat.  In affirming the district court's dismissal of the employer's counterclaim against plaintiff for damages caused to the boat, the court held that the combining of a property-damage counterclaim with a limitation of liability in order to wipe out a substantial personal injury claim under the Jones Act is a liability-exempting device forbidden by the Act.

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US v. Corona-Gonzalez, 09-3993

Sentence of defendant convicted for drug and firearm related offenses reversed

US v. Corona-Gonzalez, 09-3993, concerned a challenge to the district court's imposition of a sentence of 300 months' imprisonment and a term of five years of supervised release, in a prosecution of defendant for drug and firearm related offenses.  In reversing the sentence, the court remanded the case for resentencing in holding that the district court committed plain error during defendant's sentencing hearing as there is nothing in the record to support the district court's statements at the sentencing hearing regarding defendant's prior removal and reentry into the United States, and this plain error affected defendant's substantial rights.

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US v. McGuire, 09-1597

Former Jesuit priest's conviction for molestation of minors

US v. McGuire, 09-1597, concerned a challenge to a conviction of defendant, once a prominent Jesuit priest, for traveling in interstate and foreign commerce for the purpose of having sex with a minor, in violation of 18 U.S.C. section 2423(b).

US v. Webster, 10-1148

Counsel's motion to withdraw granted in defendant's appeal of his sentence for heroin conviction

US v. Webster, 10-1148, concerned a prosecution of defendant for distributing heroin wherein he was sentenced to 151-months' imprisonment and 6 years of supervised release, based on a "prior conviction" for a felony offense in Wisconsin for another heroin sale that occurred several days before the current offense.

Sec. & Exch. Comm'n v. Wealth Mgmt. LLC, 09-4090

rReceiver's distribution plan of insufficient funds to repay investors, following the SEC's enforcement action against an investment firm

Sec. & Exch. Comm'n v. Wealth Mgmt. LLC, 09-4090, concerned a challenge to the district court's approval of a receiver's proposal to distribute diminished assets to investors on a pro rata basis and imposing a cutoff date after which any redemption distributions would be offset against the investor's total distribution, in the Securities and Exchange Commission's (SEC) enforcement action against a Wisconsin-based investment firm and its principals alleging a host of securities law violations arising from the failure of the firm's six unregistered investment vehicles - similar to hedge funds - for investing in unconventional and illiquid assets.