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

In 2003 defendant, a member of the “Concord Affiliated” Gary street gang, was convicted of two counts of having distributed at least 50 grams of crack cocaine. 21 U.S.C. 841(a)(1). Although the jury acquitted him of conspiracy, the judge determined by a preponderance of the evidence that defendant had been a member of the conspiracy and reasoned that the sales of crack by the other members, to the extent that those sales had been reasonably foreseeable, constituted “relevant conduct” and a correct basis for calculating the guidelines sentencing range. Determining that defendant had foreseen sales “way in excess of” 1.5 kilograms of crack (the then-threshold quantity for the highest base offense level (38)) sentenced defendant to 360 months. The judge also remarked that defendant was more likely than not involved in murders in furtherance of the conspiracy. The Seventh Circuit affirmed in 2005. Defendant later moved for a sentencing reduction under 18 U.S.C. 3582(c)(2) based on the retroactive lowering of the base offense level for offenses involving crack. The district judge denied the motion, ruling that defendant had been responsible for the sale of at least 16.9 kilograms. The Seventh Circuit reversed, stating that the lower court misunderstood the meaning of “relevant conduct.” The possible significance of the murders remains an unresolved issue. View "United States v. Davison" on Justia Law

In 2005, General Warehouse, an employer obligated to contribute to the Central States Pension Fund on behalf of certain employees ceased to have an obligation to the Fund, which led to a complete withdrawal, incurring withdrawal liability of $1,262,568. Under the Multiemployer Pension Plan Amendments Act, 29 U.S.C. 1301(b)(1), if a withdrawing employer is unable to pay in full, a pension plan can recover the deficiency jointly and severally from any other business under common control with the withdrawing The Fund sued to collect from General Warehouse, GEOBEO and other businesses under common control. The parties entered into a consent judgment, acknowledging that the named defendants were jointly and severally liable. The Fund then initiated an action to add the defendants to the group of business entities from which it can collect. The district court granted summary judgment in favor of the Fund. The Seventh Circuit affirmed, finding “overwhelming evidence” that the entities were under common control. View "Cent. States, Southeast SE & SW Areas Pension Fund v. CLP Venture LLC" on Justia Law

Based on a tip that Gutierrez was involved in drug trafficking, officers went to his home with a certified narcotics canine and knocked at the front door. They saw movement inside, but no one answered the door. The officers had the dog examine the door for the scent of narcotics, and he alerted. After knocking for 15 minutes, the officers forcibly entered and secured the home, but did not search. An officer swore out an affidavit, relying on the dog’s positive alert, and returned with a search warrant. The ensuing search revealed 11 pounds of methamphetamine in Gutierrez’s home. A few months later, the Supreme Court held that the use of a drug-sniffing dog on an individual’s porch is a Fourth Amendment search. Gutierrez pleaded guilty, reserving the right to appeal the denial of his suppression motion. The court sentenced him to the mandatory minimum, 120 months’ imprisonment. The Seventh Circuit affirmed, holding that under the 2011 Supreme Court decision, Davis v. United States, the evidence should not be suppressed if “binding appellate precedent specifically authorize[d]” the officers’ conduct at the time they acted. Seventh Circuit precedent did authorize the officers’ conduct. View "United States v. Gutierrez" on Justia Law

A strike against the hotel began in 2003, but apparently escalated in 2008, when the union pursued a more aggressive strategy. It began engaging in secondary activity by targeting organizations that had made arrangements to reserve large blocks of rooms or space at the hotel, in the hopes that they would cancel their plans and pressure the hotel to end the strike. The union would send delegations, consisting of striking hotel workers and union staff in groups of two-10 people, to the stores and offices of potential hotel patrons. The hotel claims that these delegations violated 29 U.S.C. 187(a) and 29 U.S.C. 158(b)(4)(ii)(B) by coercing the customers into cancelling their agreements to book rooms. Although the strike ended in 2013, the hotel sought damages for past activity. At the close of discovery, the district court granted the union summary judgment, finding that the union’s conduct was not coercive, and that barring it as a matter of federal labor law would raise important free speech concerns. The Seventh Circuit reversed in part and remanded for a trial regarding whether certain of the union’s actions were coercive, whether any such coercive conduct damaged the hotel, and if so, to what extent. View "520 S. MI Ave. Assocs., Ltd. v. Unite Here Local 1" on Justia Law

In 2000, Marr’s father founded Equipment Source, which sold used forklifts. Marr managed sales and daily operations, advertising online and selling online or by phone. In 2002, his father opened a merchant account at Palos Bank, to process credit card transactions, with Marr as a signatory. Marr sold forklifts that he never owned or possessed. Customers would contact Marr to complain that they received an invoice and notice of shipment, and that Equipment Source charged the credit card, but that the forklift never arrived. While Marr gave varying explanations, he rarely refunded money or delivered the forklifts. Customers had to contact their credit card companies to dispute the charges. The credit card company would send notice of the dispute to Palos Bank, which noticed a high incidence of chargebacks on Equipment Source’s merchant account and eventually froze the company’s accounts. Its loss on Equipment Source’s merchant account was $328,881.89. In 2003, the FBI executed a search warrant at Equipment Source’s offices and Equipment Source ceased doing business. Eight years later, the government charged Marr with six counts of wire fraud. At trial, the government presented testimony from 14 customers who paid for forklifts but never received them; two bank employees who dealt with chargebacks, and a financial expert witness, who confirmed the $328,881.89 loss. The Seventh Circuit affirmed Marr’s conviction, rejecting arguments that the government relied upon improper propensity evidence, that jury instructions incorrectly explained the law, and that the district court lacked the authority to order restitution. View "United States v. Marr" on Justia Law

Charged with four counts of transporting child pornography, 18 U.S.C. 2252A(a)(1); and one count of possessing child pornography, 18 U.S.C. 2252A(5)(B)McLaughlin pled guilty to one count of transporting child pornography. His collection included photographs of adults sexually abusing pubescent and prepubescent minors, children engaged in sexual acts with animals, and children engaged in sexual acts with other children; he had more than 150 videos and more than 500 photographs of child pornography. He was sentenced to 130 months’ imprisonment, a fine of $50,000, and 20 years of supervised release. The Seventh Circuit affirmed, upholding application of the four-level sentencing enhancement under section 2G2.2(b)(4) for “material that portrays sadistic or masochistic conduct or other depictions of violence.” The court also rejected arguments that the sentence was based on speculation and unfounded allegations; that the district court failed to address his argument regarding his unusual susceptibility to abuse in prison; and that the court failed to articulate its reasons for imposing a $50,000 fine. View "Unted States v. McLaughlin" on Justia Law

Charged with committing four drug-related robberies of Milwaukee pharmacies; having used a firearm in connection with the robberies; and having possessed a controlled substance with intent to distribute, defendant was first represented by appointed counsel. He disagreed with how counsel proposed to handle the hearing on a motion to suppress and sought to discharge counsel and proceed pro se. He did not seek a continuance; nor did he object to the hearing being conducted by a magistrate. The magistrate responded that “this hearing will proceed with the defendant … represented by counsel. Following the hearing, the court will address the defendant’s motion to remove counsel and proceed pro se.” The hearing lasted nine hours; 12 witnesses testified. After the hearing, the magistrate granted the motion to discharge counsel, then mooted it with respect to the suppression hearing, denying defendant’s motion to reopen the hearing to present additional evidence. The magistrate recommended that the original motion to suppress, be denied. The district judge agreed with both recommendations. Defendant represented himself at trial and on appeal. He was sentenced to 780 months in prison. The Seventh Circuit vacated and ordered the court to hold a new hearing on the motion to suppress, allowing the defendant to represent himself. View "United States v. Lee" on Justia Law

Defendant pleaded guilty to using the telephone to facilitate his possession of cocaine with intent to distribute, 21 U.S.C. 843(b), and was sentenced to 24 months of probation. The sentencing judge imposed 18 conditions of probation and stated: “we’ll see what the next two years are going to bring in terms of your ability to conform …, because if you don’t, the 24 months of probation is going to be 24 months in prison,” meaning that if defendant violated any condition, he would be in prison for 24 months. Two months later, the probation service sought to revoke his probation. Defendant admitted: driving without a valid driver’s license; failing to attend a drug treatment program; and thrice submitting urine samples that tested positive for cocaine. Although the guidelines range for his probation violations was seven to 13 months, U.S.S.G. 7B1.4(a), the statutory maximum for his crime of conviction, the judge recalled the comments made at sentencing, and ordered 24 months’ custody. Defendant’s lawyer, stating that he had no non-frivolous ground for appealing the sentence, filed an Anders brief, to which defendant did not respond. The Seventh Circuit denied the Anders motion, stating that there is no authority indicating that a judge may treat a warning of consequences as creating a contract requiring him to impose those consequences should there be a violation. View "United States v. Tatum" on Justia Law

The Educational Rate Program, a subsidy program authorized by the Telecommunications Act of 1996, is implemented by the FCC, which established USAC, a private non-profit corporation, to administer the Program. USAC provides subsidies to eligible school districts for the cost of telecommunication services. FCC regulations require that providers offer schools the “lowest corresponding price” (LCP) for their services: the “lowest price that a service provider charges to non-residential customers who are similarly situated to a particular school, library, or library consortium for similar services.” Heath operates a business that audits telecommunications bills and was retained by Wisconsin school districts. Heath found that certain schools paid much higher rates than others for the same services. As a result, many districts did not receive the benefit of LCP and the government paid subsidies greater than they should have been. Heath informed Wisconsin Bell of the discrepancy, but it refused to provide the more favorable pricing. Heath also learned of an even lower price charged to the Wisconsin Department of Administration (DOA). Heath filed a qui tam lawsuit. The government declined to intervene. The district court dismissed for lack of subject matter jurisdiction, finding that the public disclosure bar applied and that Heath was not saved by the original source exception, because the DOA pricing was on its website. The Seventh Circuit reversed, stating that the claim was not based on the DOA website information and that Heath was not an opportunist plaintiff who did not contribute significant information. View "Heath v. WI Bell, Inc." on Justia Law

The government sued to enforce tax assessments against the Zabkas and tax liens against their property and against property of partnerships to which they had transferred assets. The district court ruled that the assessments (several million dollars) were valid and that, when the IRS made the assessments, the liens had attached to all the Zabkas’ personal property and to all their rights to property, including their ownership interests in the partnerships. The government sought appointment of a receiver. The court denied motions to reconsider calculation of the unpaid assessments, and directed the clerk to enter judgment. The order is captioned “Judgment in a civil case” and states: “Judgment is entered in favor of the Plaintiff.” The docket entry adds: “CASE TERMINATED.” The Zabkas appealed. The Zabkas filed another appeal from a subsequent order, which directed the government to propose a receiver. The judge ordered appointment of the receiver proposed by the government. The defendants appealed that order. They later appealed approval of property sales by the receiver and an order awarding interim compensation to the receiver. The Seventh Circuit concluded that it had jurisdiction only over the appeal from the appointment of the receiver and affirmed that order, which was the last order in the first proceeding and so completed that proceeding. View "United States v. Zabka" on Justia Law