Summaries for September 16, 2014
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Jeudy v. Holder
Jeudy entered the U.S. from Haiti in 1980 without inspection. He became a lawful permanent resident in 1989. In 2009, the government charged him as removable based on his 1995 guilty plea to attempted possession of crack cocaine, 8 U.S.C. 1251(a)(2)(B)(i). An alien found to be deportable at that time could be eligible for discretionary relief. Among other requirements, an alien had to accrue a certain period of continuous presence or residence in the U.S. While conviction rendered him deportable, he continued to accrue time toward a period of continuous residence. In 1996, he reached the required seven years under 8 U.S.C. 1182(c). In 1997, the Illegal Immigration Reform and Immigrant Responsibility Act added the “stop-time rule,” which cuts off the accrual of time toward those years of continuous residence upon service of notice to appear or commission of certain offenses, 8 U.S.C. 1229b(d)(1). Jeudy has no family in Haiti, and has three children who are American citizens. The immigration judge found that the stop-time rule applied retroactively to cut off Jeudy’s period of continuous residence in 1995. The Board of Immigration Appeals affirmed. The Seventh Circuit granted Jeudy’s petition for review. The stop-time rule does not convey a clear intent to govern retroactively, and the stop-time rule would have an impermissible retroactive effect if it were applied to Jeudy’s 1995 drug offense.
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Kienitz v. Sconnie Nation, LLC
While a student at University of Wisconsin in 1969, Soglin attended the first Mifflin Street Block Party. Now in his seventh term as Mayor of Madison, Wisconsin, Soglin wants to shut down the annual event. For the 2012 Block Party, Sconnie sold 54 t-shirts and tank tops displaying an image of Soglin’s face and the phrase “Sorry for Partying.” Photographer Kienitz accused Sconnie of copyright infringement. Sconnie conceded starting with a photograph that Kienitz took at Soglin’s inauguration that it downloaded from the city’s website. The picture was posterized, background was removed, and Soglin’s face was turned lime green and surrounded by multi-colored writing. The district court granted summary judgment for the defendants, applying the fair use statutory defense to infringement, 17 U.S.C. 107. The Seventh Circuit affirmed, concluding that a shirt is no substitute for the original photograph; Kienitz does not argue that defendants reduced demand for the original work or any use that he is contemplating. Defendants removed so much of the original that, “as with the Cheshire Cat, only the smile remains.” What is left, besides a hint of Soglin’s smile, is the outline of his face, which cannot be copyrighted. Defendants chose the design as a form of political commentary, not for profit.
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Kashamu v. Norgle
In 1998 Kashamu, a dual citizen of Nigeria and Benin, was charged as the leader of a conspiracy to import and distribute heroin. Kashamu never entered the U.S. His location was unknown. The government did not ask that he be tried in absentia. Eleven other defendants pleaded guilty; one was convicted. Months later, Kashamu was arrested in England. There were two unsuccessful extradition proceedings. After the 2003 ruling, Kashamu left England. Six years later, in Chicago district court, he moved to dismiss the indictment based on the English judge's findings, concerning possible confusion between Kashamu and his brother. The Seventh Circuit rejected his arguments. Kashamu remains in Nigeria, a businessman and a ruling party politician. Although there is an extradition treaty, the government has made no effort to extradite him. In 2014 Kashamu sought to dismiss on the grounds that the court has no personal jurisdiction because he has never been in the U.S. and that the Sixth Amendment speedy-trial clause bars prosecution. The Seventh Circuit again disagreed. Even if Kashamu has constitutional rights, they are not violated. The court has no current jurisdiction, but should he come to the U.S., he can be tried. Denial of a motion to dismiss on speedy-trial grounds is a nonappealable interlocutory order; until proceedings are complete, the causes and duration of the delay, the defendant’s responsibility for it, and the harm from the delay, cannot be determined. At any time “he had only to show up” to obtain resolution of his guilt or innocence.
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Showing posts with label Daily Opinion Summaries U.S. 7th Circuit Court of Appeals. Show all posts
Showing posts with label Daily Opinion Summaries U.S. 7th Circuit Court of Appeals. Show all posts
Tuesday, September 16, 2014
Daily Opinion Summaries U.S. 7th Circuit Court of Appeals
Friday, September 12, 2014
Daily Opinion Summaries U.S. 7th Circuit Court of Appeals
Summaries for September 11, 2014
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Satkar Hospitality, Inc.v. Fox Television Stations, Inc.
Satkar owns Schaumburg, Illinois hotel and was mentioned in blog posts and a television news report as having made a large donation to a local politician and later won a property-tax appeal. In response, the Cook County Board of Review revoked Satkar’s property-tax reduction and opened an inquiry. Satkar sued the Board, its members and staff, the blog, the television station, and reporters, under 42 U.S.C. 1983, and for defamation and false light. The district court dismissed the 1983 claims against the Board and the officials. The Seventh Circuit affirmed. The court separately dismissed the state-law claims against the media defendants, applying the Illinois Anti-SLAPP statute. Because the section 1983 claims were still pending, the judge entered final judgment under FRCP 54(b) to permit appeal of the SLAPP issue. Later, the judge orally invited Satkar to ask for a Rule 54(b) judgment on the SLAPP dismissal, forgetting that he had already entered final judgment. Satkar did not correct the judge, did not seek clarification, and did not file a notice of appeal. After the deadline to appeal expired, Satkar sought an extension, claiming that the judge’s comment created confusion. The judge granted the extension, relying on the defunct “unique circumstances” doctrine. The Seventh Circuit dismissed an appeal, noting that the Supreme Court has disavowed the unique circumstances doctrine and Satkar has not otherwise demonstrated excusable neglect.
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Moultrie v. Penn Aluminum Int'l, LLC
Moultrie, who began working at Penn Aluminum in southern Illinois in1990 and held various positions, was demoted from his position as a forklift operator in 2009. Before his demotion, he had filed a grievance concerning a work assignment. That grievance did not allege racial discrimination. He filed another grievance, after the demotion, again not mentioning race. After his claims were rejected by the Illinois Department of Human Rights and the EEOC, Moultrie sued. Penn asserted that Moultrie was demoted because of performance problems that caused delays and other problems and about which he was repeatedly warned. Moultrie, attributed Penn’s decision to racial discrimination and retaliation and claimed that Penn’s conduct violated the collective-bargaining agreement. The district court dismissed an Illinois state-law claim as time barred and entered summary judgment against Moultrie on all remaining claims. The Seventh Circuit affirmed. Moultrie failed to provide sufficient evidence to support his discrimination and retaliation claims.
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Daily Opinion Summaries U.S. 7th Circuit Court of Appeals
Summaries for September 12, 2014
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United States v. Zuniga
Zuniga was arrested for pointing a gun at his ex-girlfriend outside a bar and was charged with being a felon in possession of a firearm and possessing cocaine. Both the speaker and the person who heard the speaker’s statement that the speaker had seen Zuniga holding the gun testified. Zuniga was convicted and received an enhanced sentence because he had three prior convictions that qualified him as an armed career criminal. The Seventh Circuit affirmed. The statement was properly admitted under the excited utterance exception to the hearsay rule, but even if it was not, the error would be harmless. Rejecting an argument that the jury was required to find that he had three qualifying felony predicate convictions that made him eligible for an enhanced mandatory minimum sentence, the court stated that prior convictions are sentencing factors that may be determined by a judge. Zuniga did not establish by a preponderance of the evidence that the Illinois Department of Corrections sent him a restoration-of-rights letter, so the court rejected a claim that he should not have been given an enhanced sentence because his civil rights were restored, thereby precluding two of his convictions from being considered predicate offenses.
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Sec. & Exch. Comm'n v. First Choice Mgmt. Servs., Inc.
In 2000 the SEC charged First Choice and others with fraud. The district court appointed a receiver to take charge of the defendants’ assets for victims of the $31 million fraud. The receiver found that some assets had been used to acquire oil and gas leases in Texas and Oklahoma and attempted to sell them and use the proceeds to compensate the victims. Over the next 14 years, third parties sought to establish ownership interests in the leases. In this case, CRM sought to contest the receiver’s proposed sale of oil leases in Osage, Oklahoma, which it claims to have operated since 2002. The district court denied CRM’s motion to intervene and approved the sale. The Seventh Circuit affirmed, noting that CRM knew as early as 2004 that the receiver was claiming the leases, but waited until the protracted and expensive receivership was finally moving toward an end and the receiver’s assets were dwindling to take action.
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Thursday, September 11, 2014
Daily Opinion Summaries U.S. 7th Circuit Court of Appeals
Summaries for September 11, 2014
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Satkar Hospitality, Inc.v. Fox Television Stations, Inc.
Satkar owns Schaumburg, Illinois hotel and was mentioned in blog posts and a television news report as having made a large donation to a local politician and later won a property-tax appeal. In response, the Cook County Board of Review revoked Satkar’s property-tax reduction and opened an inquiry. Satkar sued the Board, its members and staff, the blog, the television station, and reporters, under 42 U.S.C. 1983, and for defamation and false light. The district court dismissed the 1983 claims against the Board and the officials. The Seventh Circuit affirmed. The court separately dismissed the state-law claims against the media defendants, applying the Illinois Anti-SLAPP statute. Because the section 1983 claims were still pending, the judge entered final judgment under FRCP 54(b) to permit appeal of the SLAPP issue. Later, the judge orally invited Satkar to ask for a Rule 54(b) judgment on the SLAPP dismissal, forgetting that he had already entered final judgment. Satkar did not correct the judge, did not seek clarification, and did not file a notice of appeal. After the deadline to appeal expired, Satkar sought an extension, claiming that the judge’s comment created confusion. The judge granted the extension, relying on the defunct “unique circumstances” doctrine. The Seventh Circuit dismissed an appeal, noting that the Supreme Court has disavowed the unique circumstances doctrine and Satkar has not otherwise demonstrated excusable neglect.
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Moultrie v. Penn Aluminum Int'l, LLC
Moultrie, who began working at Penn Aluminum in southern Illinois in1990 and held various positions, was demoted from his position as a forklift operator in 2009. Before his demotion, he had filed a grievance concerning a work assignment. That grievance did not allege racial discrimination. He filed another grievance, after the demotion, again not mentioning race. After his claims were rejected by the Illinois Department of Human Rights and the EEOC, Moultrie sued. Penn asserted that Moultrie was demoted because of performance problems that caused delays and other problems and about which he was repeatedly warned. Moultrie, attributed Penn’s decision to racial discrimination and retaliation and claimed that Penn’s conduct violated the collective-bargaining agreement. The district court dismissed an Illinois state-law claim as time barred and entered summary judgment against Moultrie on all remaining claims. The Seventh Circuit affirmed. Moultrie failed to provide sufficient evidence to support his discrimination and retaliation claims.
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Wednesday, September 10, 2014
Daily Opinion Summaries U.S. 7th Circuit Court of Appeals
Summaries for September 10, 2014
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Muhammad v. Caterpillar, Inc.
In 2006, after coworkers made offensive comments, orally and in graffiti, about Muhammad’s race and perceived sexual orientation, Muhammad complained to management. Caterpillar responded. Walls were repainted and employees were warned that anyone caught defacing the walls would be fired. Six weeks later, Muhammad left his work station during non-break time to use the restroom, and checked the bid board before returning to work. Supervisor Edwards confronted him about use of work time to check the board. Edwards contends that Muhammad responded with disrespectful comments and walked away. Muhammad claimd that he did not act disrespectfully, but did not want to discuss it without a union representative present. Edwards suspended Muhammad and walked him out of the plant, allegedly for insubordination. After an internal investigation, the suspension was deemed appropriate. Muhammad filed a grievance through his union and was allowed to return to work. He was suspended again and later terminated based on his conduct upon his return. Following settlement of his grievance of the termination, he returned to work. He was later laid off in a reduction in force. He was subsequently rehired and remains employed at Caterpillar. Based on the 2006 incidents, Muhammad filed charges of harassment and retaliation with the EEOC. After receiving a right-to-sue letter, he sued, claiming hostile work environment and retaliation. The district court entered summary judgment for Caterpillar. The Seventh Circuit affirmed, reasoning that the company reasonably responded to complaints of harassment and no evidence suggested that Caterpillar suspended Muhammad because he complained.
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United States v. Harper
Harper was arrested, under a warrant for a parole violation, in the back house bedroom on a two-house property. Agents recovered a loaded pistol from under the nightstand and suspected cocaine base from the top of that nightstand. Fingerprint analysis revealed Harper’s fingerprints on the weapon. In the closet, they found more suspected cocaine base. Agents also found a loaded Glock semiautomatic pistol, ammunition, clear plastic bags of controlled substances, a digital scale, and $368 in cash. Laboratory analysis identified the controlled substances as 148.6 grams of heroin, 105.4 grams of cocaine base, and 1 gram of marijuana. Harper claimed that he resided at the front house with his aunt and used the back house only when he had women visiting and that others lived in the rear house and were responsible for the drugs, but later pled guilty as a felon in possession of a weapon, 18 U.S.C. 922(g)(1). Applying the enhancement in U.S.S.G. 2K2.1(c), for offenses involving unlawful receipt, possession or transportation of firearms or ammunition and prohibited transactions involving firearms or ammunition, rather than section 2X1.1, which applies to use or possession of a firearm in connection with another felony, the district court sentenced Harper to a term of 100 months. The Seventh Circuit affirmed, rejecting Harper’s argument that application of 2K2.1 was improper for lack of reliable evidence of any connection between the firearms offense and any drug offense.
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Jentz v. Conagra Foods, Inc.
A Chester, Illinois grain bin exploded, injuring three workers. A jury awarded almost $180 million in compensatory and punitive damages against ConAgra, which owned the facility, part of a flour mill, and West Side, which ConAgra had hired about a month before the explosion to address problems in the bin. The injured workers were working on the bin’s problems. On appeal, West Side did not contest liability to the workers but claimed that it did not have to reimburse ConAgra for the cost of repairing the facility. Both maintained that damages were excessive. The Seventh Circuit reversed the judgment against ConAgra and the award of punitive damages against West Side, but affirmed awards of compensatory damages against West Side and remanded for consideration of indemnification and contribution. West Side was an independent contractor in a commercial relation with ConAgra and normal rules of contract and tort law apply. Having hired an expert in hot bins, ConAgra was entitled to assume that West Side would ask for whatever information it needed. Admission of evidence that referred to insurance was harmless; the verdicts so far exceeded $3 million that the jury’s belief that West Side carried that much insurance cannot have played a material role.
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Abraham v. Washington Grp. Int'l, Inc.
Washington Group, an engineering, construction and management services company, offered Abraham a position as a “lead scheduler” for a project in Wisconsin. After negotiations, Washington Group sent Abraham a letter offering him the title of “project control manager,” a higher position higher in the chain of command. Abraham, who worked for the company for about a year, pursuant to his written contract before leaving the company and filing suit, claimed that Washington Group and its parent, URS, also promised him that he would perform the duties of a project control manager and then breached that promise. The defendants claim that Abraham understood that it would give him the title of project control manager for purposes of increasing his salary but he would perform the functions of a lead scheduler on a day-to-day basis. The district court entered summary judgment for the defendants. The Seventh Circuit affirmed, stating that Abraham received all of the promises set forth in his unambiguous written contract.
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Friday, September 05, 2014
Daily Opinion Summaries U.S. 7th Circuit Court of Appeals
Summaries for September 5, 2014
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Browning v. Colvin
Plaintiff, a 25-year-old woman of 25, was denied Supplemental Security Income benefits. She claims to be mentally retarded and to suffer from knee and hip pain in one leg, caused by a defect in the hip joint resulting from a childhood disease. A psychologist administered an IQ test when she was 18. Her IQ was 68. The psychologist thought her more intelligent than her IQ score of 68 implied, and concluded that she could function in “typical work environments.” Three years later two other psychologists evaluated the plaintiff and concluded that despite her serious mental deficiencies she would be able to work, although one referred to work in “sheltered workshops.” She does not use a computer and cannot obtain a driver’s license because she can’t read the test that one must pass to obtain a learner’s permit. Her work history consists of three hand-packager jobs. The Seventh Circuit reversed, with instructions to remand the case to the Social Security Administration, noting multiple errors in the agency’s assessment of the plaintiff’s condition and of employment possibilities.
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Armato v. Grounds
Because of inaccurate information about time served in the county jail for two theft convictions, Armanto’s release date was recalculated. After receiving orders from the court that entered his convictions and concerned about the conditions for releasing Armanto, who was previously convicted as a sex offender, employees of the Illinois Department of Corrections (IDOC) sought advice from the Office of the Attorney General. Because the court had not imposed mandatory supervision, IDOC “violated him at the door,” so that he was not released as he expected. After his release, Armato sued five IDOC employees, claiming violation of Armato’s constitutional rights in violation of 42 U.S.C. 1983 and false imprisonment.. The district court granted defendants summary judgment, finding that no rational trier of fact could find that Armato was unlawfully detained beyond his court-ordered release date. The Seventh Circuit affirmed. Armato did not suffer any injury because he was released prior to the precise date in an “Agreed Order,” the defendants were not deliberately indifferent to Armato’s incarceration, but diligently pursued relief from the AG’s Office for clarification, and Armato’s due process claims failed as a matter of law and were precluded by the remedies available to him in state court.
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United States v. Durham
Durham, Cochran, and Snow took control of Fair Finance Company, a previously well-established and respected business, and used money invested in Fair to support their lavish lifestyles and to fund loans to related parties that would never be repaid. When auditors raised red flags, the auditors were fired. When Fair experienced cash-flow problems, it misled investors and regulators so it could keep raising capital. One of the company’s directors, under investigation in a separate matter, alerted the FBI that Fair was being operated as a Ponzi scheme. The FBI seized Fair’s computer servers and, after an investigation uncovered more than $200 million in losses to thousands of victims, many of them elderly or living on modest incomes, arrested the three. A jury convicted them of conspiracy, securities fraud, and wire fraud. The Seventh Circuit affirmed, except with respect to Durham’s wire fraud convictions. The government failed to enter into the trial record key documentary evidence supporting those counts. The court rejected arguments relating to sufficiency of the evidence; sufficiency of the wiretap application; the court’s refusal to give a proposed theory-of-defense jury instruction on the securities fraud count; alleged prosecutorial misconduct during the rebuttal closing argument; and claimed sentencing errors.
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Wolf v. Walker
The Seventh Circuit affirmed district court decisions invalidating Indiana and Wisconsin laws that did not recognize the validity of same-sex marriages, whether contracted in those states or in states (or foreign countries) where they are lawful. The states gave no “reasonable basis” for forbidding same-sex marriage, but more than a reasonable basis was required because the challenged discrimination is “along suspect lines,” being against a minority and based on an immutable characteristic of the members of that minority, against an historical background of discrimination against the persons who have that characteristic. These circumstances create a presumption that the discrimination is a denial of the equal protection. The discrimination does not confer an important offsetting benefit on society as a whole and is not appropriate to its stated objectives. The court stated that: “Formally these cases are about discrimination against the small homosexual minority,” but at a deeper level, they are about the welfare of children. Children adopted by homosexual couples would be better off emotionally and economically if their adoptive parents were married. With respect to the states’ arguments about governmental interest in the welfare of children, the court noted that infertile heterosexual couples are allowed to marry.
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Khan v. Holder
Khan is a Mohajir: his parents were immigrants into Pakistan when it was partitioned from the British Indian Empire in 1947. Some Mohajirs formed a political party—the Mohajir Qaumi Movement—in response to perceived repression by nonimmigrant locals. Khan joined in 1992 when he was 14 or 15 years old. He distributed flyers, attended meetings, and recruited people to the cause. The group became increasingly violent, however, and many Mohajirs, including Khan, left to join a new, supposedly more peaceful group, MQM-Haqiqi. But this party too resorted to violence, so Khan eventually left. Khan became a target and was repeatedly attacked, kidnapped, and tortured by members of the first party. He fled to the U.S. on a visitor visa, and when it expired, sought asylum and other forms of relief from removal. While his case was pending, he married a U.S. citizen, making him eligible for permanent residency through his marriage. An immigration judge accepted the government’s position, rejecting Khan under the “terrorism bar,” 8 U.S.C. 1182(a)(3)(B)(i)(I); the BIA affirmed. The Seventh Circuit denied review, declining to interpret the “knowledge exception” to the terrorism bar because Khan did not raise it before the BIA.
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Thursday, September 04, 2014
Daily Opinion Summaries U.S. 7th Circuit Court of Appeals
Summaries for September 4, 2014
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Neal v. Oliver
After being caught establishing a fraudulent worker’s compensation insurance program, , Neal was convicted of wire fraud, 18 U.S.C. 1343, and sentenced to 327 months’ imprisonment. He is incarcerated in Terre Haute, Indiana. Prison administrators discovered that he had signed a court document with an alias. They disciplined him for violating a prison rule which forbids forging any document, identification, money, or official paper by revoking his commissary and telephone privileges for 180 days. Neal sought a writ of habeas corpus, 28 U.S.C. 2241, claiming denial of due process. Neal moved three times to stay proceedings and compel arbitration, submitting a purported arbitration agreement, executed by a representative of the Bureau of Prisons and himself, under his assumed name. The district court denied the motion, noted that the only penalties Neal suffered were the loss of privileges, neither of which affected custody, so that relief under section 2241 was unavailable. The Seventh Circuit affirmed, stating that there is no basis for an arbitration claim. Neal's documents are obvious fabrications and the Federal Arbitration Act governs only maritime contracts and contracts involving interstate commerce. The court imposed an additional fine of $500 on Neal. Until he pays all outstanding fees and sanctions, clerks of all federal courts within the circuit must return unfiled any papers he submits in any habeas corpus action unless the petition attacks a state-court criminal judgment. The court also ordered Neal to show cause why not to sanction him under FRAP 38 for filing a frivolous appeal and forwarded the file for consideration of prosecution for perjury.
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Rivera v. Drake
Contending that a guard had assaulted him during a pat-down by inserting a finger in his anus, inmate Rivera filed suit under 42 U.S.C. 1983. Drake, the guard, moved to dismiss because Rivera had failed to exhaust administrative remedies. Rivera provided an affidavit claiming to have filed an administrative complaint on the day after the alleged assault. The judge granted summary judgment to the guard, deeming the events too trivial to justify damages. The Seventh Circuit reversed. On remand, Rivera testified that he had filed a written grievance. The judge found that the affidavit and testimony were false. Prison records contained more than 100 of Rivera’s grievances, but none relating to assault during a pat-down until August 2009. Rivera conceded in that grievance (which did not mention Drake) that it was untimely and had been filed only “for exhaustion purposes”. Prison officials testified about how grievances are collected and recorded; the judge concluded that there was little chance that a written grievance would be lost. The judge observed that Rivera’s initial allegation had been that he made an oral complaint, not a written grievance. The court dismissed, concluding that by committing perjury Rivera had forfeited his claim. The Seventh Circuit affirmed and issued an order requiring Rivera to show cause why it should not revoke his privilege of litigating in forma pauperis and imposing financial sanctions that, if unpaid, will lead to the entry of a litigation-control order. “Rivera has made deceit the norm in his litigation. He is a frequent plaintiff, and many of his suits entail dissembling.”
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United States v. Jordan
At a supervised release revocation hearing, the key substantive evidence against Jordan was a report prepared by a Texas State Trooper (Wilson) who arrested Jordan after a traffic stop. His report said that Jordan had been driving a car containing nearly 30 pounds of marijuana. The court admitted the hearsay report over Jordan’s objection and relied upon it to return Jordan to prison. The Seventh Circuit reversed because the court admitted the report without making a finding about the interest of justice under FRCP 32.1(b)(2)that could have excused the failure to allow the defendant to cross-examine the trooper. On remand, Wilson testified via two-way video conference and confirmed the events described in the police report. The government also introduced a forensic laboratory report confirming that the leafy green substance found in Jordan’s car was marijuana. Wilson testified that the report was the same one that the lab had provided to him. The district court overruled Jordan’s objection, saying that such reports are generally considered reliable and imposed the original sentence of 24 months in prison and no additional supervised release, within the guideline range for a Grade A supervised release violation of 18 to 24 months for Jordan’s criminal history. The Seventh Circuit affirmed, rejecting challenges to the testimony by video conference and to admission of the report.
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