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

Petitioners, husband and wife, are Macedonian Slavs. In 2001 husband was drafted into the Macedonian Army. He refused to report, because he disapproved of government efforts to suppress Albanian demands for greater rights. In 2002 husband and pregnant wife were victims of a home invasion; assailants held a gun and stated that petitioners were "betrayers of Macedonia" and "did not participate in the war." The assailants fondled wife, beat husband, and stole money and jewelry. Police arrived six hours later and implied that the assailants were fellow police, more influential because of their paramilitary character. Petitioners fled, arriving in the United States without a visa. Removal proceedings were instituted. Requests for asylum and other relief were denied. The Board of Immigration Appeals affirmed. The Seventh Circuit granted the petition and remanded. Withholding of removal (8 U.S.C. 1231(b)(3)) requires a determination that the applicant will more likely than not be subjected to persecution if removed from the United States. A finding of past persecution creates a rebuttable presumption of future persecution. What happened to the petitioners was persecution, not just harassment. The statement that there is no evidence of human rights abuses by the Macedonian army in 2001 ignored the State Department's country report.

Petitioner, a native of Mexico, entered the United States illegally in 1987, married the next year, eventually raising three children, and remained until returning briefly to Mexico in August 2001. Border Patrol apprehended her as she attempted to re-enter. In custody, petitioner completed a Form I-826 "Notice of Rights and Request for Disposition" in which she admitted her illegal presence, waived a hearing, and agreed to return to Mexico. In May 2003, she was apprehended in an unrelated immigration raid. She applied for cancellation of removal, but the Immigration Judge found her ineligible. The Bureau of Immigration Appeals and Seventh Circuit affirmed. The 2001 border apprehension and subsequent decision to admit illegal presence and return to Mexico had the effect of a break in continuous physical presence within the United States (8 U.S.C. 1229b(b)(1)(A)). The incident amounted to a formal, documented process; petitioner was taken into custody and the form adequately explained the legal consequences.

A semi-truck jackknifed while making a delivery for a federally licensed carrier and struck a vehicle, killing its driver. The estate brought a wrongful death action in Illinois state court against the driver, his wife (titular owner of the truck), and the company. The suit settled with entry of a $2 million consent judgment against the company, the driver, and his wife. The estate agreed that payment by the company's carrier of the $1 million policy limit would satisfy part of the judgment; the remainder would come from the driver's policy for "Non-trucking/bobtail liability" that covers driving cabs without trailers outside the service of the federally licensed carriers under whose authority drivers operate. That carrier declined coverage, citing a policy exclusion for vehicles "while in the business of anyone to whom ... rented," and obtained summary judgment in federal district court. The Seventh Circuit affirmed, citing 49 C.F.R. 376.2(d)(2), which defines "owner" as including someone like the driver, "who, without title, has the right to exclusive use of equipment" and reasoned that the driver, as agent for his wife, leased the truck to the company, even though the company was unaware that the wife held title.

Plaintiff began working at an auto dealership finance department in 2006. Her son began working in the department days later, but both were terminated about three months later. They filed a complaint in federal court alleging a variety of federal and state claims. The district court granted summary judgment in favor of the dealership. The employees appeal only their claim for unpaid wages under the Indiana Wage Payment Statute, Ind. Code 22-2-5-1, dealing with frequency of payment. The Seventh Circuit affirmed. Plaintiffs should have proceeded under the Wage Claims Statute, Ind. Code 22-2-9-1, which deals with claims by discharged employees.

Plaintiff purchased a house in the early 2000s and fell behind on his payments. The lender extended two forbearance agreements, but assessed late fees and reported the late payments; plaintiff was unable to refinance and, when plaintiff was unable to catch up, the lender foreclosed. Plaintiff alleged violation of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. 2605 and Indiana Home Loan Practices Act, IND. CODE 24-9-1-1. The district court rejected the claims on summary judgment. The Seventh Circuit affirmed. The lender acted within its contract rights and did not violate the clear terms of the forbearance agreements.

The Wisconsin smelting plant owed more than $1.3 million in delinquent utility charges to the local municipal utility when it filed for Chapter 11 bankruptcy. Months later, despite the automatic stay, the utility implemented a process pursuant to sections 66.0809 and 66.0627, Wisconsin Statutes and local ordinance, under which unpaid utility bills become a lien against the property. The bankruptcy court and district court found that none of the exceptions to the automatic stay applied to the debt, which constituted more than one-third of the utility's operating revenue. The Seventh Circuit affirmed, holding that no exception to the stay applied. The utility did not obtain a pre-petition security interest in the plant property by providing service or billing. The utility bills were not a tax or special assessment.

Defendant sold a confidential informant 3 grams of cocaine base (crack) and, weeks later, 56.3 grams of a mixture containing cocaine base in the form of crack. The district court accepted a guilty plea (21 U.S.C. 841(a)). A presentence investigation report placed the base offense level at 30 and deducted three levels for acceptance of responsibility and timely notification of intent to plead guilty, but determined that defendant was a career offender under U.S.S.G. 4B1.1(a) based on prior convictions for a crime of violence (Illinois, aggravated discharge of a firearm in 2001) and for possession with intent to deliver a controlled substance in 2006, so that the advisory guidelines range was 262 to 327 months imprisonment. The court imposed a sentence of 262 months followed by five years of supervised release. The Seventh Circuit affirmed. Applying a "categorical" rather than a fact-based approach, the 2001 conviction qualified as a crime of violence. The sentence was within the court's discretion.

Defendant was convicted of distributing crack cocaine (21 U.S.C. 841) and sentenced to 420 months in prison. The Seventh Circuit, rejecting a "cumulative error" argument. The district court erred in admitting evidence of defendant's other drug-dealing activity, but the error was harmless in light of overwhelming evidence of guilt. A jury instruction on aiding and abetting was supported by evidence that, even if defendant did not personally hand the cocaine to a confidential informant, he arranged the sale and prepared the crack cocaine himself to reassure the informant of its quality. The district court properly denied a request for a mistrial, based on testimony about a recorded telephone call, played for the jury, that involved a reference to the potential sentence. The Fair Sentencing Act does not apply retroactively to th defendant's sentence.

Defendant, a college student, was not known to live in the house when agents executed a warrant. His uncle was the target of a child pornography investigation. Uniformed officers went to campus to interview defendant, not considering him a suspect. Defendant willingly accompanied them to the campus police office, where he was told that he was not under arrest. Defendant admitted to involvement with pornography. The officers then read him his Miranda rights, he signed an acknowledgement, confessed again, and prepared a written statement before leaving without being placed under arrest. Defendant entered a plea of guilty to distributing child pornography (18 U.S.C. 2252A(a)(2)(A)) and was sentenced to 96 months in prison with 20 years of supervised release. The Seventh Circuit affirmed denial of his motion to suppress. Defendant was not in custody; under the totality of the circumstances a reasonable person would have felt free to leave.

Defendant, a school bus driver convicted of distributing and possessing child pornography (18 U.S.C. 2252A(a)), received a 360-month sentence, the low end of the sentencing guidelines range but the statutory maximum. Among other enhancements, he received a five-level enhancement pursuant to U.S.S.G. 2G2.2(b)(5) for engaging in a pattern of sexual abuse of a minor, based on testimony from his niece that defendant had sexually abused her for 10 years beginning when she was about four years old. Another enhancement (U.S.S.G. 2G2.2(b)(7)) was for possessing more than 600 images of child pornography. The Seventh Circuit affirmed. The district court was within its discretion in barring defendant from cross-examining his niece about an unrelated rape allegation. The number-of-images enhancement does not violate separation of powers and the sentence was reasonable, based on the presence of multiple serious aggravating circumstances.