| Docket: 13-3121 | Opinion Date: June 17, 2014 |
| Judge: Ripple |
| Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
A couple, driving through Madison, saw a man in a Jeep holding what appeared to be a handgun pointed at the ceiling of the Jeep. They called the police. Asked whether the driver was threatening anyone, the caller replied, “[N]o … we couldn’t tell if it was real.” She stated that the man had parked at Dexter’s Pub and that he had been driving “badly.” Officers Lomas, Chaney, and others arrived. As they approached the Jeep, Gibbs walked out of the bar. He matched a description that had been provided. Gibbs complied with instructions to put his hands on the wall. Lomas handcuffed Gibbs. Chaney frisked him. Gibbs stated that he was the driver of the Jeep. Lomas placed Gibbs in the squad car and explained that someone had seen him pointing a gun in the car. Gibbs stated that he had airsoft guns in his car and had been returning from an airsoft event where he had been a referee. Airsoft guns are replicas of firearms. Lomas claims that Gibbs consented to her looking in the Jeep. Gibbs testified that he had denied permission, but had offered to get the items for her. Lomas searched the Jeep and found airsoft guns and a plastic knife. The officers issued a misdemeanor citation for disorderly conduct, which was later dismissed. Gibbs sued Lomas under 42 U.S.C. 1983. He did not sue any of the other officers. The district court denied Lomas’s motion for summary judgment on the basis of qualified immunity. The Seventh Circuit reversed. Even if Gibbs had a constitutional right to be free from this arrest and search, that right was not clearly established at the time of the incident.
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| Docket: 13-3467 | Opinion Date: June 17, 2014 |
| Judge: Easterbrook |
| Areas of Law: Criminal Law |
Newman and Misleveck escaped from a Wisconsin prison. Misleveck stole a shotgun and ammunition. They stole a car and kidnapped its driver. Newman kept control of her for five hours while Misleveck drove. They released her and stole a pickup truck. Pursued by police, they fled on foot and made it to Florida before being caught. Both were prosecuted in state court for escape, kidnapping, armed robbery, and other crimes. The sole federal charge was possessing the shotgun as felons, 18 U.S.C. 922(g)(1). Both pleaded guilty. After changing lawyers, Newman moved to withdraw his plea, asserting that the record did not establish a factual basis for it. He claimed he did not touch the gun. The district court denied that motion and sentenced him to 120 months’ imprisonment. The Seventh Circuit affirmed, declining to decide Newman’s argument that in entering the plea he believed erroneously that simply being in the presence of a person with a gun was constructive possession of that gun. Newman and Misleveck undertook joint criminal activity: they engaged in a conspiracy. Every conspirator is liable for acts of other conspirators within the scope of the agreement. Misleveck used the shotgun to advance the joint venture of fleeing. Newman, well aware of this, remained his confederate.
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| Docket: 13-1641 | Opinion Date: June 17, 2014 |
| Judge: Durkin |
| Areas of Law: Criminal Law |
Baker was convicted of criminal sexual assault. He was released in 1986 and within months, had kidnapped and sexually assaulted other women. Baker was released again in 2000, but returned to custody for an aggravated fleeing offense. Upon his 2003 release, Baker was told to register as a sex offender. He was convicted in 2004 for failing to register. He violated probation on that conviction and went to jail. In 2007, Baker was working at a mall, claiming that he had no felony convictions. He was fired for inviting two 14-year old girls to the back of the restaurant and asking them to engage in sexual activity, but was not prosecuted. Baker was later involved in a domestic violence incident, arrested for violating bail and for driving with a suspended license and illegally transporting alcohol. In 2011, Baker failed to report his new employment, was incarcerated, and was released for substance-abuse treatment. Discharged unsuccessfully, he again pled guilty to failure to register. Before sentencing, Baker violated his conditions of release by using a dating website and began an online relationship. Baker moved to Michigan to live with the woman and her young children. Baker did not register or notify Illinois authorities, but failed to appear for sentencing. Baker was stopped in Michigan for speeding and returned to Illinois. He pled guilty to violating the Sex Offender Registration and Notification Act, 18 U.S.C. 2250(a). The district judge sentenced Baker to 77 months’ imprisonment, a life term of supervised release, and eight special conditions. With the government’s agreement, the Seventh Circuit vacated the supervised release term and some special conditions, noting that failure to register is not a sex offense.
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| Docket: 14-1024 | Opinion Date: June 17, 2014 |
| Judge: Bauer |
| Areas of Law: Immigration Law |
Halim, a citizen of Indonesia, came to the U.S in 2000. After his visa expired, he stayed without applying for legal residency. In 2005, DHS detained Halim and initiated removal proceedings under 8 U.S.C. 1227(a)(1)(B). Halim sought asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, and protection under the Convention Against Torture, claiming that if he was forced to return to Indonesia, he would be subject to persecution because of his Chinese ethnicity and Christian beliefs. The State Department 2010 Human Rights Report for Indonesia indicated that its government officially promoted racial and ethnic tolerance, but laws and regulations still had discriminatory effects on ethnic Chinese; its Religious Freedom Report documented religious abuses between 2008 and 2010. Internet articles detailed religious attacks on Christians and continued discrimination against ethnic Chinese in Indonesia. Halim’s father and four of his siblings still lived and owned businesses in Indonesia. The IJ ordered deportation, finding the asylum application untimely as filed more than one year after his arrival. The evidence did not demonstrate: that Halim had personally suffered past persecution or would face a clear probability of future persecution if returned to Indonesia or that a pattern or practice of persecution against Chinese Christians as a group existed in Indonesia. The BIA dismissed an appeal. The Seventh Circuit rejected a petition for review.
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| Docket: 13-2369 | Opinion Date: June 17, 2014 |
| Judge: per curiam |
| Areas of Law: Criminal Law |
Benhoff entered into online chats with undercover agents on a file-sharing network over which he traded files containing child pornography. FBI agents obtained a warrant for Benhoff’s home and found 6,544 images and 1,683 videos of child pornography on his electronic-storage devices. Benhoff pleaded guilty to knowingly transporting child pornography, 18 U.S.C. 2252A(a). The guidelines range was 210 to 262 months, subject to a 240-month statutory maximum, 18 U.S.C. 2252A(b)(1). Benhoff argued for a five-year statutory minimum sentence, based on his “unprecedented” rehabilitation success and extensive cooperation. The district court concluded that deterrence and the serious nature of the crime warranted a below- guidelines 120-month sentence, imposed a lifetime of supervised release with special conditions that prohibited Benhoff from possessing “any pornographic, sexually oriented, or sexually stimulating materials” or having “contact with any person under the age of 18, except in the presence of a responsible adult who is aware of the nature of his background and current offense, and who has been approved by the probation officer.” The Seventh Circuit affirmed the sentence, but remanded so that the court can clarify what materials are “sexually stimulating” for Benhoff so as not to unnecessarily block his access to protected speech and explain why a no-contact ban for minors is necessary in this case.
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