Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

The Seventh Circuit affirmed the defendant's conviction for bank robbery and sentence of 137 months. Testimony by the defendant's sister and by a former girlfriend,identifying the defendant in a photo from a bank surveillance camera, was properly admitted as lay opinion evidence and did not invade the province of the jury. The testimony was useful in light of defendant's claim that the man in the picture was his uncle. A demand note, admitted as an item found in the defendant's car, was not claimed to be the note used in the robbery. It was not admitted to establish the truth of the assertions that the writer had a weapon and that no one would be hurt, and was not hearsay. The evidence indicated that the robbery involved a threat of death, supporting enhancement of the sentence.

The defendant entered the U.S. from Canada under a six-month visitor visa and stayed more than half of his life. He was convicted of possession of drug paraphernalia, criminal damage to property, theft under $2,500, and lewd and lascivious conduct under Wisconsin law. The immigration judge held that he was subject to removal. The Board of Immigration Appeals and the Seventh Circuit agreed. Removal for staying longer than permitted by visa can be cancelled under 8 U.S.C. 1229b if an alien has been present for 10 continuous years, has been a person of good moral character, has not been convicted of specific offenses including crimes of moral turpitude, and removal would work a hardship for a parent, child, or spouse who is a citizen or legal permanent resident. A waiver available for convictions relating to petty offenses does not apply to a conviction for possession of drug paraphernalia; offenses relating to controlled substances are crimes of moral turpitude.

An African-American coroner was elected in 2004. After a contract with Indiana University for pathology services expired, two Caucasian university pathologists formed a company (FP) and contracted to provide services. The new coroner replaced the deputy coroner with an African-American, resulting in a successful claim of reverse discrimination. The new deputy expressed concerns about costs under the FP contract and whether FP used county supplies for outside work allowed by the contract. The county terminated the contract under a six-month notice provision and hired an African-American pathologist without conducting a search or checking references. The change did not save money. FP and the pathologists filed suit under 42 U.S.C. 1983. The district court entered summary judgment for the defendants. The Seventh Circuit reversed and remanded, stating that a reasonable fact-finder would not be compelled to believe that the contract was terminated because of cost. The contract allowed the county to require FP to stop performing outside work, but the defendants chose not to do so despite their statements that they were very satisfied with FP's services. The coroner had made remarks about wanting to replace white workers with African-Americans; although he contracted with FP, it is possible to infer that FP was intended to serve as a "placeholder" for a seamless transition until African-American replacements could be found.

The district court imposed a sentence of 124 months for attempting to entice a minor to engage in sexual activity (18 U.S.C. 2422) and of 120 months to be served concurrently for receiving, possessing, and distributing computer images of child pornography (18 U.S.C. 2252). The Seventh Circuit affirmed. There was sufficient evidence that the defendant went to a meeting, set up by an undercover officer posing as a teenage girl (Carrie), intending sexual activity before the girl reached the age of consent. The defendant referred to specific sexual activities in online conversations and traveled to meet the girl, carrying alcohol; there was testimony that he had engaged in sex with minor girls in the past. Although past conduct did not involve sex during first or second meetings and the defendant told Carrie that they would drive around when they met, he admitted that he planned sexual activity if "she wanted." The prosecution's remarks about penalties that an attorney would face for perjury with respect to the defendant's statement, even if improper, were harmless given the "mountain" of evidence. A below-guidelines sentence is presumed reasonable and the defendant's arguments about sentencing disparities did not rebut the presumption.

After a jury trial, the defendant was sentenced to life imprisonment for distribution of more than 50 grams of crack cocaine. The Seventh Circuit vacated the conviction. The trial court properly dismissed a juror, based on relationship with a witness, and properly admitted into evidence recordings of conversations between the defendant and a confidential informant. The conversations provided context for statements of a party opponent and were not hearsay. Testimony of FBI agents about their personal observations during counter surveillance was properly admitted. The court erred in admitting evidence concerning the defendant's prior conviction for dealing cocaine. The evidence was not used to dispute "mistake" or a claim of entrapment or to establish defendant's intent, accomplice liability, or knowing participation, but to establish propensity. Given the lack of direct evidence, the error affected the defendant's substantial rights.

The defendant appealed a sentence of 40 months after pleading guilty to illegal reentry of a removed alien following conviction for an aggravated felony. Sentencing guidelines provide a range of 46 to 57 months. The Seventh Circuit affirmed. The court properly considered a prior arrest that did not result in conviction; it had detailed, reliable information about the conduct underlying that arrest. Consideration of other arrests, for which the court did not have detailed information, was harmless error; the judge placed more weight on a prior conviction for drug trafficking and the defendant did not object to consideration of the arrests at the time of sentencing. Although the Seventh Circuit held, after the sentencing, that a court may consider the disparity in guidelines ranges for illegal re-entry, depending on whether the district has a "fast track" program, the district judge properly declined to lower the sentence based on the district's lack of a program. The defendant had not made concessions that would be required by such a program.

After exhausting state challenges to convictions for multiple counts of possession of child pornography and repeated sexual assault of an elementary school boy, the defendant was denied habeas corpus by a federal district court. The Seventh Circuit reversed and remanded. The state court erred in rejecting ineffective assistance of counsel claims. Trial counsel's failure to bring a pre-trial motion concerning evidence that the boy had previously made false allegations of sexual assault against his father and a therapist's note was unreasonable. The failure was not part of a strategy, but a result of confusion about evidentiary rulings. The state court erred in ruling that the defendant was not prejudiced by counsel's actions; failure to probe the boy's motives in making repeated false allegations violated the defendant's rights under the Confrontation Clause. The evidence was probative and may have "tipped the balance."

Medical groups alleged that the insurer used software that pays providers less than required by policies. The district court remanded to state court. The Seventh Circuit vacated and remanded for a decision on the merits. Although the complaint did not specifically seek damages exceeding the $5 million amount in controversy, there is a "reasonable probability" of recovering the requisite amount. At the time of filing, an award of punitive damages was possible. The amount in controversy need not be established as a jurisdictional fact and there is no presumption against federal jurisdiction. The defendant was entitled to present its estimate of the stakes and was not bound by the plaintiff's assertions.

After selling cocaine to a police informant, the defendant pled guilty to two counts of distribution and was sentenced to 141 months. The district court designated him as a career offender. He had prior Illinois convictions for delivery of a controlled substance and for unlawful restraint. The Seventh Circuit affirmed, holding that unlawful restraint was a "crime of violence" for purposes of the sentencing guidelines. While the Illinois definition of the crime does not require use or threat of force and unlawful restraint is not specifically listed in the sentencing guidelines, the elements of the offense ordinarily involve conduct that is roughly similar to other listed crimes.

After exhausting state appeals of his conviction and 240-year sentence for a 2004 Indiana home invasion that resulted in four deaths, the defendant unsuccessfully sought a writ of habeas corpus. The Seventh Circuit reversed and remanded. The prosecution's witnesses included a participant in the crime, who testified as part of a plea bargain, and police officers, who testified about a "tip" that led them to the defendant. The double-hearsay testimony of the officers, which included statements supposedly made by the defendant to the tipster, was admitted on the theory that it was offered, not for the truth of the matters asserted, but to show the course of the investigation. The court did not instruct the jury of the limited purpose of the testimony. The double-hearsay testimony was, "beyond reasonable dispute," offered to establish the truth of the statements made, in violation of the Confrontation Clause of the Sixth Amendment. The prosecution went to great lengths to establish the credibility of the absent tipster. The state court incorrectly applied the "course of investigation" exception; there was no attempt to appropriately limit the testimony or instruct the jury. The testimony had a substantial, injurious impact.