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CONTRACT, FRAUD
Kochert v. Adagen Medical International, June 29
Kochert, a medical doctor based in Lafayette,
Indiana, sued Adagen for fraudulent written and verbal representations
to induce her to enter into a contract to purchase a piece of medical
equipment. J. Sykes finds that Kochert elected to affirm the contract
and sue for damages; that election, however, does not necessarily make
the misrepresentation "part of" the contract, as the district court
apparently thought was required for the forum-selection clause to
apply. But dismissal for improper venue was correct in any event
because the parties agreed to the State Court of Fulton County,
Georgia, as the place of "jurisdiction, venue and forum" for disputes
about their respective rights and obligations without regard to the
nature of the claim.
-----------------------------------
ATTORNEYS
Van Patten v. Thomas, June 29
Per curiam, the circuit finds that nothing in a
recent US Supreme Court opinion requires the circuit to overturn a
decision that the state court proceeding, where defense counsel
appeared via speakerphone at the critical hearing when the no contest
plea was entered, was a violation of the right to counsel.
--------------------------------------
TORT
F:A J Kikson v. Underwriters Laboratories, June 28
J. Evans finds that Kikson has not demonstrated
UL, the product safety certification company, made statements directed
at third-party potential customers designed to induce those customers
not to buy Eldfast, a chimney liner Kikson hoped to sell in the US
after obtaining the UL safety stamp. $3 million punitive damages award
reversed. Also, no reasonable jury could have found that Kikson's
choice to continue to work with UL on getting Eldfast certified
generated $3.3 million in damages.
-----------------------------------
DRUG OFFENDER, SENTENCING
USA v. Sachsenmaier, June 28
J. Wood finds that the district court correctly
denied defendant's motion to suppress statements of two witnesses and
the evidence supported his convictions for conspiracy to distribute
cocaine. The circuit rejects defendant's claim that that the fact of a
prior conviction should either be admitted or found by a jury beyond a
reasonable doubt. 262-month career offender sentence affirmed.
-----------------------------------
TAX, PROSECUTORIAL MISCONDUCT
USA v. Roman, June 28
Roman was a full-time police officer who had a
part-time job working a security detail at a gentlemen's club called
"Heavenly Bodies" in Elk Grove, Illinois. J. Evans finds that the
government proved beyond a reasonable doubt that Roman willfully filed
false tax returns and the government committed no prosecutorial
misconduct when it elicited from him, during cross-examination, that
as a police officer he took an oath to uphold and enforce the law.
-----------------------------------
ATTORNEYS, CRIMINAL PROCEDURE
Williams v. Bartow, June 28
Williams was convicted in Wisconsin state court
of three counts of first-degree sexual assault of a child. J. Ripple
finds that Williams was not entitled to an attorney to help him file a
petition to the US Supreme court and appointed counsel fulfilled the
obligation to tell defendant that counsel did not believe defendant
had a meritorious claim and to inform defendant that he could seek new
counsel.
-----------------------------------
CIVIL PROCEDURE, ZONING
Forty-One News v. Lake County, June 27
The owners of an adult book store challenged the
county's adult zoning ordinance for adult book stores. J. Wood finds
that even though a quasi-criminal enforcement proceeding was pending
in the Circuit Court of Lake County against 41 News for failure to
comply with the Ordinance and was commenced after 41 News filed this
lawsuit, the district court correctly dismissed the suit the
abstention doctrine.
---------------------------------------
EMPLOYMENT
Sims-Fingers v. Indianapolis, June 27
The manager of a six-acre park owned by the
Indianapolis and Marion County park system claimed that she is paid
less than some of the male managers in the park system and that the
difference in pay violates the Equal Pay Act. J. Posner finds that the
manager failed to state a claim for unequal pay for equal work and
evidence of other employee salaries does not support an inference of
sex discrimination.
---------------------------------------
AVIATION
Bennett v. Southwest Airlines, June 27
Southwest Airlines' petition for rehearing
asserted that the airline had presented an argument that our opinion
overlooked: whether the 1958 Federal Aviation Act preempts State
authority to establish non-uniform and individual State standards for
aviation safety. Per curiam, the circuit has "not overlooked this
argument; we just thought it too feeble to require comment."
---------------------------------------
IMMIGRATION
Leguizamo-Medina v. Gonzales, June 27
J. Easterbrook finds that when an alien seeks not
deferral of final decision, but just an opportunity to present more
evidence, "it is difficult to see how one could review the denial of a
continuance." The thing being reviewed, when review is authorized, is
the agency's final decision, here, a decision not to cancel the
petitioner's removal. When a decision is unreviewable, any opinion one
way or the other on the propriety of the steps that led to that
decision would be an advisory opinion.
---------------------------------------
DRUG OFFENDER, SENTENCING
USA v. Williams, June 27
J. Wood finds that there was ample evidence that
Williams could have foreseen the sale of more than 50 grams of cocaine
base by members of the conspiracy The circuit rejects defendant's
claim that that his 360 month sentence was invalid because there was
not a jury finding or an admission on his part about either the drug
type or quantity necessary to establish the statutory maximum.
---------------------------------------
SEX OFFENDER, SENTENCING
USA v. Goldberg, June 27
The district court sentenced the son of a
"prosperous couple" from Highland Park to a ten year term of
supervised release despite the fact that he had sexually explicit
images of prepubescent children being penetrated by adults. J. Posner
finds that the lower court judge neglected considerations of
deterrence and desert, which dominate the federal criminal code, in
favor of undue emphasis on rehabilitation, and seemed even to think
that any prison sentence, however short, is inconsistent with
rehabilitation.
---------------------------------------
ATTORNEY FEES, HOUSING
Gautreaux v. Chicago Housing Authority, June 26
In the latest phase of the long-running
litigation over racial discrimination in public housing in Chicago,
the district court awarded attorney fees to the plaintiffs for work
they did between August 1, 2001, and July 31, 2003. J. Wood finds that
even if the link between these proceedings and earlier parts of the
case is broken, plaintiffs nonetheless prevailed and the district
court properly awarded the fees.
---------------------------------
CLASS ACTIONS, CIVIL PROCEDURE
Lott v. Pfizer, June 25
Two days before the enactment of the Class Action
Fairness Act, plaintiffs' claimed that Pfizer misrepresented the
health hazards associated with two drugs, Celebrex and Bextra, and
charged more for the drugs than the fair market value. The district
court held that Act only applies to lawsuits filed on or after the
date enactment, remanded the action to state court and awarded the
plaintiffs $23,000 in attorney fees. J. Flaum finds that Pfizer had an
objectively reasonable basis to seek removal, and thus the district
court erroneously awarded attorney fees. As a result, the court need
not consider whether Pfizer's attempt to invoke the district court's
diversity jurisdiction was also reasonable.
----------------------------------
CLASS ACTIONS, CIVIL PROCEDURE
In re Ocwen Loan Servicing, June 22
Defendants claimed that class plaintiffs'
complaint, "a hideous sprawling mess, 40 pages in length with 221
paragraphs of allegations," was preempted under the Debt Collection
Practices Act. J. Posner finds that the case is largely unripe for a
determination of preemption. "Despite its length, the complaint is
vague. Some of the charges are pretty clearly, even certainly,
preempted. Others probably are not, though this may depend on
particulars omitted from the complaint. Many of the charges are so
vaguely worded that we cannot guess whether they are preempted or
not." Denial of motion to dismiss affirmed.
-----------------------------------
IMMIGRATION
Gutierrez-Almazan v. Gonzales, June 21
Five years after his conviction for sexual abuse
of a minor, the Department of Homeland Security seized Gutierrez-Almazan
as part of "Operation Predator," an effort to find and remove
non-citizens convicted of crimes involving sexual abuse of a minor. J.
Flaum finds the Board of Immigration Appeals held that Gutierrez-Almazan's
reason for an untimely filed motion was insufficient to accept his
late brief, which is implicit in the court's rejection of his motion.
However, the Board has given this Court no indication that it took
account of Gutierrez-Almazan's pro se status, education, language
skills, or any other factors that might be relevant to the merits of
his motion. Remanded.
-----------------------------------------
ATTORNEYS
Williams v. Bartow, June 21
J. Ripple finds that counsel's advice fulfilled
his responsibility to assess the merits of the case and advise his
client of whether there are reasonable grounds to seek a writ of
certiorari. Although this court has the authority to direct counsel to
file a petition for certiorari, there is certainly no basis for such
action here. Notably, Williams does not indicate what arguments he
would like counsel to raise in a petition for certiorari.
-----------------------------------------
SENTENCING
USA v. Nelson, June 21
Defendant claimed the district court's guideline
calculation should have used, as the starting point for its departure,
the lowest offense level in the United States Sentencing Guidelines
associated with the range of "360-life." J. Williams finds that the
correctly district court chose to calculate the sentence reduction
from the higher offense level, which corresponds to the guideline
range of "life."
-----------------------------------------
EMPLOYMENT
Ziegler Coal Company v. St Paul Travelers' Insurance, June 19
J. Ripple finds that the administrative law judge
properly ruled that, because the opinion of the employer's physician
was neither reasoned nor documented, the opinion was entitled to a
lesser degree of probative weight than the opinions of the employee's
doctors, which stated that defendant had black lung disease. The
administrative law judge properly invoked the interim presumption of
total disability.
-----------------------------------
ENVIRONMENT, TORT
Kemper/Prime Industrial Partners v. Montgomery Watson Americas, June
19
Kemper/Prime Industrial Partners v. Montgomery Watson Americas, June
12
[Reposted by 7th Circuit.] Plaintiff
claimed that an environmental assessment of a parcel of land performed
by Warzyn, the predecessor of defendant Montgomery Watson Americas,
was deficient insofar as it failed to reveal to Kemper/Prime the full
extent of contamination and clean-up costs for the Chicago Enterprise
Center property. J. Wood finds that the lower court properly
determined that Kemper/Prime presented insufficient evidence of
damages due to the negligent misrepresentation.
-----------------------------------
INSURANCE
BCS Insurance v. Guy Carpenter and Company, June 19
BCS claimed that a reinsurance intermediary
company that brought BCS into a deal to insure a warranty program
failed to obtain sufficient reinsurance. J. Ripple finds that the
reinsurance agreement that is the subject of BCS claims against the
insurance intermediary is not a "policy of insurance" under the
Insurance Producers Limitations Act and the Act does not apply to
reinsurance intermediaries or govern the disputed agreements between
BCS and the intermediary.
----------------------------------------
CRIMINAL PROCEDURE, FRAUD, SENTENCING
USA v. Gibson, June 19
J. Kanne finds that the statute of limitations
had not run on any of the charges against defendant due to his flight
from justice and the subsequent passage a federal statute that allows
for the reinstatement of charges dismissed under a plea. Defendant's
480-month sentence for a scam that involved tax-advantaged structured
settlements in personal injury cases should be upheld.
-----------------------------------
DOUBLE JEOPARDY, RICO
USA v. Calabrese, June 19
USA v. Calabrese, June 12
[Reposted.] Two members of two different street
crews that are components of the "Chicago Outfit," the lineal
descendant of Al Capone's gang, claimed that a trial on RICO charges
will violate double jeopardy because both had already been convicted
for several other crimes related to the same events. Some of the
predicate acts for the RICO charges occurred after the offense periods
charged in the earlier prosecutions, but others occurred before or
during those periods. J. Posner finds that defendants are not only
charged with a different conspiracy from what was charged in their
previous prosecutions, but charged in the current case with having
conspired to conduct the affairs of the Outfit, not the street crews,
by acts that are not identical to the acts charged in the first set of
prosecutions, though there is overlap. "At this stage, we cannot know
how great the overlap will be, and so we have no basis for forbidding
the trial to go forward."
-----------------------------------
INEFFECTIVE ASSISTANCE, DEATH PENALTY
Stevens v. McBride, June 18
Stevens, an emotionally disturbed young man who
had been abused and raped as a child, was sentenced to death in
Indiana state court for the molestation and brutal murder of a
10-year-old boy. J. Wood finds that defense counsel was ineffective
because the only evidence presented by the defense concerning his
mental state at the time of the killing was the testimony of a
psychologist who believes that mental illness is a myth.
----------------------------------------
SENTENCING
USA v. Harris, June 15
Harris, as managing partner of a hedge fund, made
material misrepresentations to the investing partners via email and
received 168 month with a $13.8 million restitution order. J. Ripple
rejects the executive's claim that individuals charged in large-scale
financial fraud cases such as Enron and WorldCom had received lesser
sentences. The district court correctly ruled that the hedge fund
qualified as a financial institution for purposes of a sentencing
enhancement designed to punish those who put a financial institution
at risk. Affirmed.
------------------------------
CONTRACT, DAMAGES
TAS Distributing Company v. Cummins Engine Corporation, June 14
Plaintiff claimed that defendant did not use
"reasonable efforts" to sell plaintiff's engine technology, despite
meeting the minimum royalty clause of the parties' contract, because
another distributor sold more of the same product. J. Ripple finds
that the evidence on summary judgment simply does not establish a
basis upon which damages can be calculated to a reasonable degree of
certainty. There is no suggestion that the competitor's product sales
provide a reasonable basis upon which to calculate damages.
--------------------------------------
SEARCH
USA v. Biggs, June 14
Biggs, arrested for selling drugs, told officers
that he could not go back to jail because he had to take care of his
daughter and then offered to get the officers some guns in exchange
for his release. J. Manion finds that the lower court properly refused
to suppress the drugs found near defendant during his arrest and
properly refused to suppress the guns that Biggs led them to in hopes
of striking a deal for his release.
--------------------------------------
FRAUD
USA v. Prude, June 14
Prude was serving a term of supervised release
for a forgery conviction in Wisconsin when she sent in an absentee
ballot. J. Ripple finds that Prude was properly convicted and
sentenced to 24 months for voter fraud.
--------------------------------------
FORFEITURE
Young v. USA, June 14
More than five years after he was convicted for
his role in a drug ring, Young moved for the return of funds that he
says were "taken" by the district court as part of a defective
criminal forfeiture. Per curiam, the circuit finds that the district
court lacked subject matter jurisdiction to review his request.
--------------------------------------
SENTENCING
USA v. Blinn, June 14
Blinn claimed that the district court may not
order him to a period of home detention that, when combined with his
actual prison term, exceeds the maximum sentence of twenty months
provided for in his plea. J. Williams finds that Blinn, the
government, and the district court were all in agreement that Blinn,
in exchange a guilty plea, would serve a sentence between twelve and
twenty months in prison, not on supervised release. Blinn made no
objections to the district courts conditions of his supervised release
before it was imposed.
--------------------------------
CIVIL PROCEDURE, CIVIL RIGHTS, ATTORNEY FEES
Robinson v. Harvey, June 13
Soon after 19-year-old Robinson was shot by a
Harvey police officer, who said he acted in self defense because
Robinson pointed a gun at him, rumors began to circulate that the
officer's story was a lie and that the officer had shot an unarmed boy
and planted a gun on him. J. Evans finds that Harvey failed to timely
challenge the lower court's order for a new trial after the original
jury rendered inconsistent verdicts, but timely appealed the lower
court's award of over $500,000 in attorney fees to Robinson. "We have
no trouble concluding that the award of the full lodestar amount was
not clearly erroneous."
-----------------------------------
ENVIRONMENT, TORT
Kemper/Prime Industrial Partners v. Montgomery Watson Americas, June
12
Plaintiff claimed that an environmental
assessment of a parcel of land performed by Warzyn, the predecessor of
defendant Montgomery Watson Americas, was deficient insofar as it
failed to reveal to Kemper/Prime the full extent of contamination and
clean-up costs for the Chicago Enterprise Center property. J. Wood
finds that the lower court properly determined that Kemper/Prime
presented insufficient evidence of damages due to the negligent
misrepresentation.
-----------------------------------
DEATH PENALTY, HABEAS
Lambert v. McBride, June 12
Per curiam, the circuit finds that "What we
really have here are requests to file successive petitions for habeas
relief under Anti-Terrorism and Effective Death Penalty Act, but the
requests are masquerading as motions to recall mandates. While we
certainly do not fault Mr. Lambert for leaving no stone unturned in
his effort to stave off his execution, the relief he seeks is quite
extraordinary."
-----------------------------------
DOUBLE JEOPARDY, RICO
USA v. Calabrese, June 12
Two members of two different street crews that
are components of the "Chicago Outfit," the lineal descendant of Al
Capone's gang, claimed that a trial on RICO charges will violate
double jeopardy because both had already been convicted for several
other crimes related to the same events. Some of the predicate acts
for the RICO charges occurred after the offense periods charged in the
earlier prosecutions, but others occurred before or during those
periods. J. Posner finds that defendants are not only charged with a
different conspiracy from what was charged in their previous
prosecutions, but charged in the current case with having conspired to
conduct the affairs of the Outfit, not the street crews, by acts that
are not identical to the acts charged in the first set of
prosecutions, though there is overlap. "At this stage, we cannot know
how great the overlap will be, and so we have no basis for forbidding
the trial to go forward."
-----------------------------------
CIVIL PROCEDURE, EMPLOYMENT
Goros v. Cook County Sheriff, June 11
J. Easterbrook finds that the parties' dispute
over the method by which Cook County officers receive pay increases
does not belong in federal court based on federal question
jurisdiction. The grievance concerns the meaning of ordinances and
collective bargaining agreements, and "it has been understood for a
long time" that the due process clauses do not require hearings to
resolve disputes about the meaning and effect of laws, regulations,
and contracts.
------------------------------------
IMMIGRATION
Chen v. Gonzales, June 11
J. Easterbrook finds that Chinese women who have
had children in the US do not face a substantial risk of either
compulsory abortions or sterilization upon being returned to China.
Affidavits that related personal experiences or tales about
sterilizations in Fujian would not establish that a person in Chen's
position faces a material risk that this would happen to her. Remanded
to decide what financial exactions normally are used in Fujian, and
how these consequences should be classified under the legal standard
that separates inducement and encouragement from force.
------------------------------------
MIRANDA
Gilbert v. Merchant, June 11
Gilbert was fourteen years old at the time of his
arrest for murder, and both his confession and the interrogation that
preceded it took place in the absence of an attorney, parent, or other
friendly adult. J. Rovner rejects his claim that his statement was
thus involuntary and would have been suppressed, and further rejects
his claim that had his attorney moved for and obtained the
suppression, Gilbert would have gone to trial rather than plead
guilty.
---------------------------------------
OBSTRUCTION
USA v. Wortman, June 8
After being tipped off that her boyfriend had
been accessing illegal pornography from her mother's computer, Wortman
broke a CD that contained suspected child pornography downloads. J.
Flaum finds that Wortman was properly convicted of knowingly altering,
destroying, and mutilating a tangible object with the intent to
impede, obstruct, and influence the investigation of a matter within
the jurisdiction of the FBI.
---------------------------------------
EMPLOYMENT
Perez v. Illinois, June 8
Perez claimed that the Illinois, Department of
Corrections terminated him and later, after reinstatement, denied a
promotion because of his national origin. J. Manion finds that Perez
failed to show that other similarly situated individuals received
lesser punishment for the same conduct Perez committed before his
initial termination, that is, sexual harassment of a subordinate
employee. Also, the Department showed that Perez was less qualified
than those chosen for the available positions Perez sought upon
reinstatement.
---------------------------------------
CIVIL RIGHTS
Reynolds v. Jamison, June 8
J. Cudahy finds that the officer who arrested
Reynolds after he had threatened his former girlfriend was entitled to
immunity from Reynolds' claim that the officer and the girlfriend
conspired to have him arrested on baseless charges.
---------------------------------------
BANKING, CONTRACT
John M. Floyd and Associates v. Star Financial Bank, June 7
Floyd, a consultant hired to assist lower costs
at a bank, claimed that the bank breached the consulting agreement
when the bank hired another consultant to implement several changes at
the bank that Floyd recommended but never implemented. J. Kanne finds
that the agreement clearly states that the obligation to pay did not
arise after analysis or presentation of recommendations, but only
after a change was installed. The failure to bind the bank to pay for
Floyd's work earlier in the engagement "might have been slipshod
contract drafting, but a slipshod contract is not necessarily an
ambiguous contract."
---------------------------------------
ZONING, PROPERTY
Petra Presbyterian Church v. Village of Northbrook, June 7
Petra Presbyterian bought property to build a
church in anticipation that Northbrook would amend its zoning
ordinance to comply with the Religious Land Use and Institutionalize
Persons Act, but the village did the opposite through a ban on
membership organizations from the area where the church bought land.
J. Posner rejects the church's claim that it obtained an indefeasible
right to use the warehouse for a church even if the new ordinance,
which would forbid such use, is valid. The new ordinance does not
violate the "less than equal terms" provision of the Act and does not
impose a substantial burden on the exercise of religious rights by
Petra and its flock that offset by a compelling governmental interest.
---------------------------------------
SENTENCING, CRIMINAL PROCEDURE
USA v. Hagenow, June 7
At an initial sentencing hearing, the government
impermissibly introduced an affidavit attached to an information to
demonstrate that Hagenow's prior conviction for criminal confinement
was for a crime of violence. On remand, the government introduced the
plea colloquy transcript from Hagenow's criminal confinement matter as
a substitute. J. Williams finds that the district court properly
allowed the government on remand to introduce, for the first time, the
plea colloquy transcript in support of the claim that the conviction
was a crime of violence.
---------------------------------------
IMMIGRATION
Alimi v. Gonzales, June 6
Alimi, a fifty-year-old ethnic Albanian and a
native and citizen of Macedonia, used her daughter's passport to help
her nephew's new wife get into the US. J. Ripple finds that the lower
court properly determined that she was subject to removal because she
engaged in alien smuggling.
------------------------------------
EMPLOYMENT
Griffin v. Sisters of St. Francis, June 6
Per curiam, the circuit finds that two employees
of a farm run by Catholic nuns failed to show that the nuns fired them
for having an extra-marital relationship that led to inappropriate
conduct on the farm and resulted in pregnancy.
------------------------------------
SANCTIONS, CIVIL PROCEDURE
Thomas v. Guardsmark, June 5
Guardsmark identified itself as a corporation,
rather than an LLC, in its jurisdictional statement and then, when the
court asked for a clarification, Guardsmark failed to properly
identify the citizenship of the LLC members, a partnership and a
corporation. J. Rovner "hopes to make it clear once and for all, if
such a wish for finality were possible, that an appellant's naked
declaration that there is diversity of citizenship is never
sufficient. Our Circuit Rule 28 requires more." $1000 sanction to
Guardsmark.
---------------------------------------
INSURANCE
Abstract and Title Guaranty Company v. Chicago Insurance, June 5
When Chicago Insurance realized that coverage
under an errors and omissions policy held by Abstract and Title
Guaranty would be exhausted due to an employee's fraud and check
kiting scheme, the insurer filed an interpleader action in federal
district court and deposited with the court an amount equal to its
limit of coverage. J. Kanne finds that "would be hard pressed to read
this contract to require Chicago Insurance to both defend the suits
and pay to its full limits."
---------------------------------------
ERISA
Harzewski v. Guidant, June 5
J. Posner finds that the question whether an
ERISA plaintiff is a "participant" entitled to recover benefits under
the Act should be treated as a question of statutory interpretation
fundamental to the merits of the suit rather than as a question of
plaintiff's right to bring the suit. On the merits, the circuit
remands for the district court "to take a very careful look at the
plaintiffs' theory of how they were injured."
---------------------------------------
SENTENCING
USA v. Artley, June 5
Defendants received 328 months and 125 months for
a drug related conspiracy. J. Bauer finds that the district court did
not base the drug-quantity calculation and sentence enhancements on
speculative and unreliable evidence, the sentences do not
disproportionately punish relevant conduct and the sentences are
reasonable. Further, the government did not breach its plea agreement
through the failure to move for a reduced sentence in light of one
defendant's cooperation. Affirmed.
---------------------------------------
EMPLOYMENT
Kodl v. Board of Education School District 454, Villa Park, June 4
J. Bauer finds that a middle school physical
education teacher failed to show that the school district's reasons
that it transferred her to an elementary school were pretext for age
discrimination or for any reason other than the fact that she was not
getting along with co-workers. Affirmed.
-------------------------------------------
EMPLOYMENT
Boumehdi v. Plastag Holdings, June 4
J. Flaum finds that the district court
erroneously held that the harassment plaintiff suffered was not
sufficiently severe or pervasive to constitute a hostile work
environment, erroneously held that any mistreatment she endured was
not severe enough to amount to a constructive discharge, and should
not have found that although she had established wage discrimination,
she had produced insufficient evidence that Plastag's justifications
for her termination were pretext.
-------------------------------------------
SENTENCING
USA v. Olivas-Ramirez, June 4
Defendant received 135 months for his part in a
methamphetamine manufacturing and distribution ring that produced more
than 500 grams of meth. J. Bauer finds that defendant was not a "minor
participant" or eligible for the sentencing safety valve. Affirmed.
---------------------------------------
EVIDENCE
USA v. James, June 4
J. Ripple finds that the district court's
limiting instructions correctly confined, to non-hearsay purposes, the
jury's consideration of a non-testifying informant's statements to a
testifying officer. The testimony elicited from the officer conformed
to those limiting instructions and testimony as to defendant's prior
dealings with the informant was not excludable as hearsay. The outcome
of the trial in all probability would have been no different had the
Government never made a statement that defendant claimed had
improperly referred to uncharged conduct.
-------------------------------------------
DRUG OFFENDER, SENTENCING
USA v. Johnson, June 4
J. Rovner finds that the lower court properly
determined that defendant was an organizer or leader of a group that
manufactured crack from powdered cocaine. His co-conspirators'
self-interested status does not thereby render the information
provided to support the leadership enhancement inherently unreliable.
Johnson cannot claim that he was uninvolved in that transaction, as
his guilty plea acknowledges that he was the source of the drugs.
Affirmed.
-------------------------------------------
SEARCH, TAX
USA v. Greve, June 4
Greve claimed that the IRS conducted a covert
criminal investigation under the guise of a civil audit. J. Flaum
finds that the district court correctly refused Greve's request to
suppress the resulting evidence or dismiss the charges, because the
facts reflected a "typical IRS civil investigation that ultimately led
to a criminal referral."
-------------------------------------------
SENTENCING, SEARCH
USA v. Burks, June 4
While on bond after being charged with attempted
murder and battery, Burks was arrested following a traffic stop and
charged as a felon in possession of a loaded firearm, as a felon in
possession of additional ammunition, for receiving a firearm while
under state felony charges for attempted murder and battery, and for
possession of body armor after a conviction for a crime of violence.
J. Bauer finds that the lower court properly refused to suppress the
evidence obtained during the traffic stop and correctly sentenced
defendant to an additional 84 months, to run concurrently with his 76
year sentence on the attempted murder charges.
-------------------------------------------
EMPLOYMENT
Williams v. Excel Foundry & Machine, June 1
Williams claimed that that Excel violated the
Americans with Disabilities Act by terminating him on account of his
disability, an inability to balance on one leg or to stand for long
periods. J. Williams finds that the district court correctly
determined that Williams was not substantially limited in the major
life activity of standing and therefore not disabled. |
