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

Frey has owned the Peoria commercial property, which contains a shopping center, for more than 40 years, without prior incident. In 2009, a tenant, ShopRite, was found to be illegally selling Viagra without a licensed pharmacist. The city took legal action against Patel (the franchisee) personally, and the business, then revoked the liquor license for the store and “site approval for the retail sale of alcoholic liquors at the location.” Frey asserted due process violations. The district court and Seventh Circuit rejected the claims. Frey did not adequately explain a substantive due process claim and had no property right such that it was entitled to any process at all before revocation of its site approval, but Frey nonetheless received due process of law before the Peoria Liquor Commission. View "Frey Corp. v. City of Peoria" on Justia Law

The Seventh Circuit previously held that Kaufman’s request to form an atheist prison study groups must be treated as a request for a “religious” group rather than a nonreligious activity group. Kaufman was later moved to another prison and encountered similar resistance to creation of an atheist group. After submitting grievances, he filed suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc, and the Free Exercise and Establishment Clauses, also citing denial of his request to wear a “knowledge thought ring,” which he regards as a religious symbol, and failure to make donated atheist books available in the prison library. The district court recognized that the atheist study group is a religious one, but found that the prison supplied a legitimate secular reason for its actions: Only two inmates were thought to have any interest. The court found that prohibition of the ring did not impose a substantial burden on religious practice and was justified by the secular interest in security. There was no evidence that the defendants were responsible for losing the books Kaufman donated or that the loss was more than isolated negligence. The Seventh Circuit vacated with respect to the study group, but otherwise affirmed. View "Kaufman v. Pugh" on Justia Law

Kirklin asked Jones whether she wanted to help rob a bank. Kirklin promised it would be “easy,” showed her two firearms he had stashed in his van, and Jones agreed to participate. They were caught. A jury convicted Kirklin of aiding and abetting an armed bank robbery and aiding and abetting the use and carrying of a firearm during that robbery, 18 U.S.C. 2113; 924(c)(1)(A); 2 and was sentenced to 171 months’ imprisonment. The Seventh Circuit affirmed the conviction and sentence, rejecting arguments that the district court failed to accurately instruct the jury on aiding and abetting the use and carrying of a firearm during the robbery and that Kirklin is entitled to resentencing because the district court wrongly imposed a 7‐year sentence under 18 U.S.C. 924(c)(1)(A)(ii) for his accomplices’ “brandishing” firearms even though the jury never found this fact beyond a reasonable doubt. The court acknowledged that any fact that increases a defendant’s mandatory minimum sentence must be submitted to a jury, but stated that it was not convinced that the sentencing error resulted in a miscarriage of justice because the evidence supporting the court’s finding of brandishing was overwhelming. View "United States v. Kirklin" on Justia Law

The Wisconsin DNR decided to terminate a separate Pollutant Discharge Elimination System (WPDES) permit for Flambeau’s mining operation and to regulate Flambeau’s storm water discharge under its mining permit, allowing more frequent inspections. Flambeau has been in compliance since the permit issued in 1998. Plaintiff filed suit under the Clean Water Act’s citizen‐suit provision, 33 U.S.C. 1365(a)(1), alleging that Flambeau violated the CWA by discharging pollutants without a permit. They argued that the CWA permit shield did not apply because Flambeau did not have a WPDES permit and its mining permit was not issued pursuant to the CWA because Flambeau could not establish that the EPA had specifically approved the regulation under which the DNR issued the permit. The district court agreed and, after a trial, determined that Flambeau had violated the CWA and assessed penalties. The Seventh Circuit reversed, finding that the permit shield applies, characterizing the suit as an attempt to collaterally attack the WPDES program. View "WI Res. Prot. Council v. Flambeau Mining Co." on Justia Law

Simon is a CPA, a professor of accounting, and an entrepreneur “whose business dealings require a flowchart to unravel” and included managing three foreign companies. For tax years 2003 through 2006, the Simon family received approximately $1.8 million from those companies and spent approximately $1.7 million. Simon paid just $328 in income taxes for 2005, and claimed refunds for the other years, while pleading poverty to financial aid programs in order to gain need‐based scholarships for his children at private schools. Charged with filing false tax returns, 26 U.S.C. 7206(1) and 18 U.S.C. 2; failing to file reports related to foreign bank accounts, 31 U.S.C. 5314, 5322 and 18 U.S.C. 2; mail fraud, 18 U.S.C. 1341; and financial aid fraud, 20 U.S.C. 1097 and 18 U.S.C. 2, Simon sought to demonstrate that money received from the entities was loaned to him and was not taxable or constituted partnership distributions, not taxable because they did not exceed his basis in the partnership. The Seventh Circuit affirmed Simon’s convictions, rejecting challenges to evidentiary rulings and jury instructions. View "United States v. Simon" on Justia Law

Volpentesta owned and operated a construction business and used the company to defraud customers, investors, subcontractors, and the government. Charged with six counts of mail and wire fraud and 17 counts of federal tax violations, Volpentesta was represented by Federal Defender Gaziano. Due to the volume of discovery (about 11,000 pages of Bates-stamped discovery and 40 banker’s boxes of documents seized by the IRS), Gaziano ensured that Volpentesta could review the discovery electronically from the jail. When Volpentesta complained that the computer was too slow, Gaziano obtained an order for periodic transport to review the documents. Volpentesta eventually filed nine motions to substitute counsel, most related to the difficulty in reviewing discovery. The court ultimately allowed him to proceed pro se. Volpentesta was convicted, sentenced to a total of 133 months in prison, and ordered to pay more than one million dollars in restitution. The Seventh Circuit affirmed, rejecting arguments that he was deprived of his Sixth Amendment right to effective assistance of counsel; that his waiver of his right to counsel was not knowingly, voluntarily, and intelligently given; and that the district court erroneously denied his motions to continue the trial once he had decided to represent himself. View "United States v. Volpentesta" on Justia Law

A class of Motorola investors claimed that, during 2006, the firm made false statements to disguise its inability to deliver a competitive mobile phone that could employ 3G protocols. When the problem became public, the price of Motorola’s stock declined. The parties settled for $200 million. None of the class members contends that the amount is inadequate. Two objected to approval of counsel’s proposal that it receive 27.5 percent of the fund. One objector protested almost a month after the deadline and failed to file a claim to his share of the recovery. The Seventh Circuit dismissed his appeal, stating that he lacks any interest in the amount of fees, since he would not receive a penny from the fund even if counsel’s share were reduced to zero. The other objector claimed that fee schedules should be set at the outset, preferably by an auction in which law firms compete to represent the class. Noting the problems inherent in such a system, the court held that the district judge did not abuse her discretion in approving the award. View "Liles v. Motorola Solutions, Inc." on Justia Law

Rosen, as owner of Kully Construction, submitted a development plan to the city of East St. Louis for a $5,624,050 affordable housing project to be constructed with a combination of private and public funds: $800,000 in federal grant funds, $1,124,810 in Tax Increment Financing (TIF), and $3,699,240 from Rosen and Kully. Rosen constructed elaborate lies about his credentials and history. After obtaining a contract for 32 units, Rosen learned that the project was under-funded by about $2.7 million dollars. To conceal the problem, Rosen misrepresented to the city that he could build 56 units without increasing construction costs, then substituted less-expensive prefab modular housing units in place of the promised new construction; he nonetheless submitted an itemized list of materials and expenses related to construction. He also submitted falsified tax returns to obtain financing and falsified statements that he had obtained financing. After the scheme was discovered, Rosen pleaded guilty to seven counts of wire fraud, and based on the court’s calculation of the loss amount and determination that Rosen was an organizer or leader of criminal activity, was sentenced to 48 months in prison. The Seventh Circuit affirmed. View "United States v. Rosen" on Justia Law

Pouhova is a Bulgarian citizen who entered the U.S. on a student visa in 1999. She overstayed her visa, married a U.S. citizen and applied for an adjustment of status. She was charged as removeable for assisting an alien trying to enter the U.S. illegally, 8 U.S.C. 1227(a)(1)(E)(i). The government produced a written statement from the woman who attempted to use Pouhova’s Bulgarian passport to enter the U.S. in 2000. The document was taken in English, without an interpreter. The government also produced a Department of Homeland Security “record of deportable alien,” a report on that interview, prepared by the same inspector, but more than seven years later. Pouhova was ordered removed and appealed, arguing that she was deprived of her procedural rights because the immigration judge based his decision on the two hearsay documents. The Seventh Circuit vacated and remanded. Although the Federal Rules of Evidence do not apply to removal hearings, the documents are not reliable and should not have been used without giving Pouhova an opportunity to cross-examine the declarant or author. View "Pouhova v. Holder" on Justia Law

Brown was convicted of conspiracy to distribute cocaine and sentenced to nearly 25 years in prison. The Seventh Circuit affirmed, rejecting Brown’s claim that he was only a customer to his suppliers, not a co-conspirator and a challenge to jury instructions concerning how to distinguish a buyer-seller relationship from a conspiracy. The court concluded that Brown was an integral part of the operation. View "United States v. Brown" on Justia Law