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Soon after he began working at a daycare, other teachers expressed concern about 20‐year‐old Al‐Awadi’s interactions with female children. Al‐Awadi was cautioned about his behavior. On a day when the daycare was shorthanded, Al-Awadi, the only adult in a room of napping children, pulled back the underwear of a girl and took pictures. He put his finger in her vagina. The girl woke up and complained to another teacher. She was later examined by a physician, who discounted Al-Awadi’s claim that the girl injured herself on his watch while she was playing on his lap and he was checking for injury. The Seventh Circuit affirmed his convictions for making and attempting to make child pornography, rejecting arguments concerning evidence that Al‐Awadi digitally penetrated the girl, an uncharged act. The “more likely than not” pattern jury instruction accurately told the jury how to assess evidence of acts other than charged crimes. The jury was also instructed that the government had to prove the elements of charged crimes beyond a reasonable doubt. Evidence of the molestation was permissible because Al-Awadi placed his intent in taking the pictures at issue. Sufficient evidence supported the conclusion that Al‐ Awadi used the girl to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct. View "United States v. Al-Awadi" on Justia Law

Posted in: Criminal Law

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Holton pleaded guilty to robbing an Illinois grocery store, carrying and using a firearm, 18 U.S.C. 924(c)(1)(A); a jury found him guilty of conspiring to commit Hobbs Act robbery (robbery affecting interstate commerce), 18 U.S.C. 1951. He was acquitted of robbing two other stores. In sentencing Holton on the conspiracy count, the judge imposed a prison term roughly four years above the Guidelines sentence. The Seventh Circuit affirmed. The Supreme Court has held that a judge may consider evidence of conduct that is relevant to the offense of conviction, even if that conduct is uncharged, “so long as that conduct has been proved by a preponderance of the evidence.” The judge stated that she was not considering acquitted conduct, but that the conspiracy began with “robbing drug dealers” (uncharged) and evolved into robbing other businesses, so that the drug-dealer robberies were “connected in a substantial way to the conspiracy charge and conviction,” and were “significantly relevant ... uncharged conduct which I have authority to consider.” Although the judge did not state explicitly that Holton more likely than not robbed drug dealers, she said enough to show that she reached this conclusion and therefore did not err. View "United States v. Holton" on Justia Law

Posted in: Criminal Law

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In 2009, Bancorp, which provides checking and savings accounts to individuals, purchased a bankers’ professional liability insurance policy from Federal. The policy stated: [Federal] shall pay, on behalf of an Insured, Loss on account of any Claim first made against such Insured during the Policy Period … for a Wrongful Act committed by an Insured or any person for whose acts the Insured is legally liable while performing Professional Services, including failure to perform Professional Services" but that Federal “shall not be liable for Loss on account of any Claim … based upon, arising from, or in consequence of any fees or charges” (Exclusion 3(n)). The 2010 Swift Complaint sought damages for Bancorp's "unfair and unconscionable assessment and collection of excessive overdraft fees.” Swift sought to represent a class of all U.S. BancorpSouth customers who "incurred an overdraft fee as a result of BancorpSouth’s practice of re-sequencing debit card transactions from highest to lowest.” In 2016, Bancorp agreed to pay $24 million to resolve all the claims, $8.4 million of which was for attorney’s fees, plus $500,000 in class administrative costs. Federal denied coverage. The Seventh Circuit agreed that Exclusion 3(n) excluded from coverage losses arising from fees and affirmed the dismissal of breach of contract claims and a bad faith claim. View "BancorpSouth Inc. v. Federal Insurance Co." on Justia Law

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In 2011, Cosenza sought disability benefits on behalf of her minor son. An ALJ determined that J.M.F. was not disabled. The Appeals Council denied her request for review. Cosenza argued that the ALJ improperly found that her son’s autism and Asperger’s syndrome were not “medically determinable” impairments. The district judge granted Cosenza summary judgment and remanded under 42 U.S.C. 405(g); 5), terminating the case in the district court. On remand, another ALJ conducted a hearing in March 2016. In June Cosenza filed a motion in the closed federal case to hold the Commissioner in contempt “for not following court-ordered remand.” In July the ALJ ruled against Cosenza. Cosenza did not wait for the decision to become final but moved for summary judgment in the closed federal case and filed a letter with the Appeals Council requesting review. The district court granted the agency’s motion to strike, reasoning that it had relinquished jurisdiction over Cosenza’s first case; as to most recent decision, the administrative appeals process had not finished so no final decision existed for judicial review. Cosenza had not shown that the Commissioner violated the court’s remand order. The Seventh Circuit affirmed. A district court lacks jurisdiction under the Social Security Act to review an ALJ’s unfavorable decision until the agency’s decision is final; the Appeals Council has not yet decided whether to review the ALJ’s decision. View "Cosenza v. Berryhill" on Justia Law

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After his conviction for a felony in Illinois, Rodriguez-Contreras, a lawful U.S. permanent resident, was found in possession of a weapon and was convicted under 720 ILCS 5/24–1.1(a). The Board of Immigration Appeals concluded that he was removable as an alien convicted of an “aggravated felony,” 8 U.S.C. 1101(a)(43); violation of 18 U.S.C. 922(g)(1), which bars anyone convicted of a felony from possessing a firearm, is an aggravated felony. The Seventh Circuit remanded. The BIA did not address whether the substantive elements of the state offense match those of the federal law, which defines "firearm" as “any weapon … designed to … expel a projectile by the action of an explosive.” Compressed air is not an explosive, so pneumatic weapons are not “firearms.” Illinois law defines a firearm as “any device ... designed to expel a projectile ... by the action of an explosion, expansion of gas or escape of gas.” Illinois law is broader than the federal law. The court rejected an argument that the Illinois statute is “divisible” and permits judges to determine which statutory provision was involved. Illinois has a single crime of weapon possession by a felon, with multiple ways of committing that crime. A definitional clause does not create a separate crime. Federal law does not foreclose Rodriguez-Contreras’ obtaining discretionary relief from removal. In exercising discretion the BIA may consider that Rodriguez-Contreras possessed a weapon that is subject to both state and federal prohibitions. View "Rodriguez-Contreras v. Sessions" on Justia Law

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The FDA approved Depakote for treating seizures, migraine headaches, and conditions associated with bipolar disorder. Physicians may prescribe it for other "off-label" uses, but a drug’s manufacturer can promote it only as suitable for uses the FDA has found safe and effective. Abbott, which makes Depakote, encouraged intermediaries to promote Depakote’s off-label uses for ADHD, schizophrenia, and dementia, hiding its own involvement. Abbott pleaded guilty to unlawful promotion and paid $1.6 billion to resolve the criminal case and False Claims Act suits, 31 U.S.C. 3729–33. Welfare-benefit plans that paid for Depakote’s off-label uses sought treble damages under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1964, for a class comprising all third-party payors. Following a remand, the court dismissed the suit on the ground that the plaintiffs could not show proximate causation, a RICO requirement. The Seventh Circuit affirmed, reasoning that the Payors are not the most directly, injured parties. Patients suffer if they take Depakote when it is useless and may be harmful and costly. Physicians also may lose, though less directly. Because some off-label uses of Depakote may be beneficial to patients, it is hard to treat all off-label prescriptions as injurious to the Payors; if they did not pay for Depakote they would have paid for some other drug. In addition, some physicians were apt to write off-label prescriptions whether or not Abbott promoted such uses. Calculation of damages would require determining the volume of off-label prescriptions that would have occurred absent Abbott’s unlawful activity. View "Sidney Hillman Health Center of Rochester v. Abbott Laboratories, Inc." on Justia Law

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Dearborn pled guilty to distributing crack cocaine, 21 U.S.C. 841(a)(1) & 846.. In 2015, the Seventh Circuit remanded for correction of certain conditions of supervised release. In a second appeal, Dearborn argued that during resentencing the court should have reconsidered its earlier denial of a motion to suppress evidence. He claimed that, in describing the investigation in the search warrant application, the officer did not inform the warrant judge that one of the controlled buys might have occurred one day later than specified in the search warrant application; the police might have used an unduly suggestive procedure in obtaining an identification of Dearborn from an informant; the informants had criminal histories and received compensation for helping the police; and certain audio and video recordings referred to in the application were of poor quality. The Seventh Circuit affirmed, concluding that Dearborn waived that argument. The court noted that Dearborn did not ask to withdraw his guilty plea and that his arguments “could have been raised earlier” and were irrelevant to the re-sentencing proceedings. Dearborn has not shown that extraordinary circumstances required the district court to reconsider its earlier denial of a Franks hearing. View "United States v. Dearborn" on Justia Law

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The Illinois Department of Human Services Home Services Program pays personal home health care assistants to care for elderly and disabled persons. The assistants are considered public employees under the Illinois Public Labor Relations Act, which authorizes collective bargaining. Since 2003, the Union has been the assistants' exclusive representative, required to represent all public employees, including non-members. Under the collective bargaining agreement, the Union collected limited "fair share" fees from workers who chose not to join, which were automatically deducted from the assistants' pay. Workers who objected to this fair-share arrangement sued under 42 U.S.C. 1983. The Seventh Circuit affirmed the dismissal of their claim; the Supreme Court reversed. On remand, the Objectors sought certification of a class of all non-union member assistants from whom the fees were collected until June 30, 2014, when the state stopped the fair-share deductions. They argued that their proposed class of around 80,000 members is entitled to a refund of approximately $32 million. The Seventh Circuit affirmed a holding that class certification was inappropriate, stating that: the class definition was overly broad in light of evidence that a substantial number of class members did not object to the fee and could not have suffered an injury; named plaintiffs were not adequate representatives; individual questions regarding damages predominated over common ones; the class faced manageability issues; and a class action was not a superior method of resolving the issue. View "Riffey v. Rauner" on Justia Law

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Garcia, a Honduran national, came to the U.S. in 2003. He was ordered removed and departed in 2005. Garcia claims that he was kidnapped and beaten upon his return to Honduras because of his opposition to deforestation. He returned to the U.S. in 2014 and, after being apprehended, sought asylum. The Chicago Asylum Office issued a positive reasonable fear determination. The IJ granted Garcia statutory withholding of removal, stating that she lacked the authority to reconsider the reinstatement of Garcia’s removal order. The BIA rejected Garcia’s argument that he had a statutory right to seek asylum under 8 U.S.C. 1158(a), reasoning that it lacked authority to declare the controlling regulations in violation of the statute. The BIA noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” The Seventh Circuit initially dismissed an appeal because asylum is a form of discretionary relief, so Garcia lacks standing to challenge the regulations prohibiting him from applying for it. On rehearing, the government and court agreed that Garcia has standing. On the merits, the Seventh Circuit held that 8 U.S.C. 1231(a)(5) plainly prohibits aliens subject to reinstatement of a removal order from applying for asylum. View "Garcia v. Sessions" on Justia Law

Posted in: Immigration Law

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Cortina, a now-dissolved corporation, was wholly-owned by the Trust. The Trust’s beneficiaries lived in Illinois when the Trust was established; in the 1980s, they relocated to Arizona. In 2011, the Trust became an Arizona trust. Brook, an Illinois resident, was the president of Cortina and the Trust's trustee. In 2001, Brook retained an Arizona firm to represent Cortina in a lawsuit concerning a ground lease created when Cortina sold land in Arizona. The suit was dismissed in 2002. In 2005, and in 2013, Cortina sought additional legal advice from the firm related to the same lease. In 2014, Cortina requested that the firm initiate a nonjudicial foreclosure on the property. The firm decided that involvement in the foreclosure would pose a conflict of interest and declined the case. Throughout the firm’s 13 years representing Cortina, the parties exchanged phone calls and correspondence between Arizona and Illinois, but all in-person meetings occurred in Arizona. Cortina sued the firm in Illinois alleging legal malpractice, breach of contract, and breach of fiduciary duty. After the district court requested a jurisdictional statement, Cortina substituted Brook as the plaintiff. The Seventh Circuit affirmed dismissal for lack of personal jurisdiction. While the defendants entered into a business relationship with an Illinois plaintiff, the activities were strictly conducted in Arizona. There was no evidence that Defendants reached out to or solicited Cortina, the Trust, or Brook. View "Brook v. McCormley" on Justia Law