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

Defendant, convicted of conspiracy to distribute and possess with intent to distribute cocaine and crack cocaine, was sentenced to life imprisonment. The Seventh Circuit affirmed. The district court properly admitted evidence that defendant used and distributed marijuana. Even the government violated Fed. R. Evid. 404(b)'s notice requirement any error was harmless in light of overwhelming evidence.

After intercepting a shipment of marijuana from Mexico, federal agents executed a controlled delivery. Because the address on the shipment did not exist and they could not locate the addressee, the agents contacted the shipper in Mexico and delivered the shipment to an industrial park. Agents refused to allow the single individual who first appeared to unload the truck alone. That individual recruited another. Three laborers who were working on-site, but who had never met the other two, were told what the shipment contained and persuaded to unload the truck. Police raided the scene and arrested all five. All five were charged with conspiracy to possess marijuana with intent to distribute (21 U.S.C. 846) and possession with the intent to distribute (18 U.S.C. 841(a)(1)). One defendant pled guilty. Three were convicted on both counts; one was acquitted on the conspiracy count but convicted for possession with the intent to distribute. The Seventh Circuit vacated the conviction of one of the laborers and ordered a new trial, with consideration of an entrapment defense. In addition, failure to instruct the jury on the charge of simple possession was prejudicial error on these facts. The court vacated another defendant's sentence.

Defendants pled guilty to conspiracy to distribute more than 400 grams of substances containing a detectable amount of fentanyl and more than a kilogram of substances containing a detectable amount of heroin. Fentanyl is a powerful heroin substitute; retailers to whom defendants sold it diluted it so that the mixture sold to customers was less than one percent fentanyl. The judge attributed the entire amount of the retail sales to the defendants on the ground that their wholesaling was a "jointly undertaken criminal activity" and imposed sentences of 200, 170, and 121 months in prison. The Seventh Circuit vacated two of the sentences. Quantities sold by retailers cannot be attributed to defendants on a conspiracy theory, based on the sales alone, but the larger number of doses that result from selling fentanyl is partly reflected in the drug-equivalency tables in the Guidelines. The judge should have calculated the Guideline ranges on the basis of just the defendants' sales and then have adjusted their sentences to reflect considerations not taken into account by the 2.5:1 ratio, such as the many more retail doses that a given quantity of fentanyl produces than the same quantity of heroin.

The Tribe operates a Wisconsin casino and financed investment in a Natchez, Mississippi riverboat casino by issuing bonds backed by casino revenue. The bank, as trustee, alleged that the Tribe had breached a bond indenture and sought appointment of a receiver to manage the trust security on behalf of the bondholder. The district court dismissed, holding that the indenture was void, as a gaming facility management contract not approved by the National Indian Gaming Commission (25 U.S.C. 2710(d)(9), 2711(a)(1)), and that the Tribe's waiver of sovereign immunity in the indenture was consequently void. The Seventh Circuit affirmed in part and reversed in part. The indenture was void so that the waiver of sovereign immunity cannot serve as a predicate for jurisdiction. The district court should have permitted the bank to file an amended complaint to the extent that it presented claims for legal and equitable relief in connection with the bond transaction on its own behalf and on behalf of the bondholder so that it could address whether the bank has standing to litigate claims on behalf of the bondholder and determine whether collateral documents, when read separately or together, waive sovereign immunity with respect to any such claims.

During an undercover FBI investigation of corruption in the Harvey Police Department, defendant, an officer, was discovered engaging in a drug deal. He was charged with attempting knowingly or intentionally to possess, with intent to distribute, a controlled substance (21 U.S.C. 841(a) and 846) and forged a police report to make it appear as if he had been conducting an undercover investigation himself. His effort resulted in an additional charge of falsifying a police report to impede an investigation (18 U.S.C. 1519). Defendant was convicted on both counts and received a sentence of 12 years. The Seventh Circuit affirmed, first rejecting a claim of entrapment. The district court properly excluded an "indecipherable" recorded conversation submitted by defendant. There was sufficient evidence of defendant's intent to possess the drugs to support the conviction.

Defendant, a participant in a major mortgage fraud scheme, pled guilty to committing wire fraud as part of that scam and was sentenced to 37 months in prison and ordered to pay $1,792,000 in restitution. His role was to act as a "straw," or fake, buyer of seven properties, and to cause $4,473,161.55 to be transferred from unwitting mortgage companies to their banking partners; he received $90,000 from his co-schemers. The Seventh Circuit affirmed in part, reversed in part, and remanded. The district court acted within its discretion in rejecting defendant's assertion that his sentence should be lower because he gave the government substantial assistance. The court should have explained its rationale in attributing a "reasonably foreseeable" loss amount to defendant. The court also erred in interpreting the minor role sentencing adjustment guideline when it stated that an act otherwise deemed minor could, if repeated, necessarily preclude the adjustment, and that a person playing a necessary role cannot play a minor role. The court should evaluate his role in context of other participants in the scheme, keeping in mind that a minor player is substantially less culpable than the average participant, not the leaders.

Defendant participated in a number of drug transactions involving the sale of a total of 74.2 grams of crack cocaine and was convicted of conspiracy to distribute more than 50 grams of cocaine base, distribution of more than 50 grams of cocaine base, and possession of more than five grams of cocaine base with intent to distribute (21 U.S.C. 841(a)(1)). 846. Because he had two prior state felony drug convictions, he received a mandatory sentence of life imprisonment without the possibility of parole. The Seventh Circuit affirmed. Defendant did not establish that no jury could have found him guilty. The Fair Sentencing Act of 2010, 21 U.S.C. 841(b)(1)(A)(iii), does not apply retroactively and the sentence does not violate defendant's equal protection or Eighth Amendment rights.

Defendant was arrested in a park while on his was to meet a person he believed to be a 15-year-old girl with whom he had been chatting online. He called his family and asked that they hide electronic equipment in his bedroom. His efforts were unsuccessful. He e was convicted of knowingly attempting to persuade a minor to engage in sexual activity, 18 U.S.C. 2422(b); travel in interstate commerce for the purpose of engaging in a prohibited sexual act with a minor, 18 U.S.C. 2423(b); and obstruction of justice for attempting to destroy his electronics with the intent to deprive the government of its use, 18 U.S.C. 1512(c). The Seventh Circuit affirmed, upholding the district court's theory was that everything on the computer was direct evidence of obstruction because it demonstrated why defendant worked so hard to get a family member to destroy or hide electronic storage media. Noting the overwhelming evidence on the other counts, the court concluded that any error in admitting the images was harmless.

The company terminated plaintiff's employment in 2008 because he failed to meet his sales quota. A suit for unpaid wages under Wisconsin's wage-claim statute, alternatively seeking recovery under equitable contract doctrines, was rejected and the district court denied leave to amend. The Seventh Circuit affirmed. Although plaintiff was an at-will employee, his commission-based compensation was the subject of an express contract, which, under Wisconsin law, precludes quasi-contractual relief. The district court did not abuse its discretion in denying leave to amend because the motion came unjustifiably late.

Husband, a resident of Sweden, sought return of his child, under the Child Abduction Remedies Act, 42 U.S.C. 11601., which implements the Hague Convention on the Civil Aspects of International Child Abduction. Wife had taken the child to the United States, her home country, under the guise of a vacation. The Act provides for return of a child to the child's "habitual residence." The district court concluded that Sweden, where all three had lived until recently, was the habitual residence. The Seventh Circuit affirmed. The district court acted within its discretion in denying additional time for discovery and in awarding husband fees and costs. The court noted evidence that wife moved to Sweden, intending to make it her permanent home and the lack of evidence that husband presented a risk of harm to the child.