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Tucker and co-defendants were charged with conspiracy to distribute heroin, with an allegation that a 2009 death resulted from the use of heroin distributed by the conspiracy. Tucker’s co-defendants pleaded guilty. Tucker and the government agreed to omit all evidence concerning the death and requested that the court not instruct the jury on that portion of the indictment. The prosecution stated that the death was "a sentencing factor and addresses the mandatory minimum sentence ... 20 years" and did not present evidence regarding a death. The jury convicted Tucker of conspiracy, 21 U.S.C. 841(a)(1), and found that the offense involved more than one kilogram of heroin. The PSR explained that Tucker’s base offense level was 32 but recommended that, under U.S.S.G. 2D1.1(a)(2), the level should increase to 38 because his offense involved more than one kilogram of cocaine and “the offense of conviction establishe[d] that death or serious bodily injury resulted.” Tucker was sentenced to 40 years’ imprisonment after the court found that his drug distribution resulted in a death. The Seventh Circuit affirmed the rejection of his habeas petition, in which he claimed ineffective assistance of counsel. Whether Tucker’s counsel should have known to challenge the 2D1.1(a)(2) enhancement, is not dispositive because he made a strategic decision not to do so, based on the reasonable calculation that his client would be better off if the jury did not hear evidence regarding the resulting death. View "Tucker v. United States" on Justia Law

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Manley, a school board member, was not up for reelection but her allies were when she had a verbal altercation with a student who was leaf-letting for Manley’s political opponents outside a high school play. The student accused Manley of bullying; the student and her parents pursued a campaign to embarrass Manley with online petitions, newspaper articles, and comments at public meetings. The superintendent began an investigation. Manley sued to enjoin the investigation. No injunction was issued. A public report found that Manley violated a board policy calling for “mutual respect, civility and orderly conduct” at school events. The board formally admonished Manley. Manley did not seek reelection. Manley’s claim for damages was rejected on summary judgment for failure to offer evidence of a required element of a due process claim: the deprivation of a constitutionally recognized liberty or property interest. The Seventh Circuit affirmed, rejecting Manley’s claims that she was deprived of a feeling of fair‐dealing on the part of the government; her mental and emotional well‐being; and processes mandated by the state and the district. The Constitution does not require government officials to avoid upsetting other officials; this “unprecedented theory’s threat to robust public debate is obvious.” Emotional distress alone is insufficient to prove a denial of due process. Manley identified no substantive liberty or property interest attached to the procedural rules the district allegedly violated. View "Manley v. Law" on Justia Law

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Quinn applied to become an Indianapolis firefighter. He passed the written examination, oral interview, and Certified Physical Agility Test and was placed on a ranked list for hiring consideration. The Department hired two academy classes from that ranked list, but Quinn was not selected. Quinn’s father (Rodney) filed a qui tam suit under the False Claims Act, 31 U.S.C. 3730(h)(1), alleging that the Department had made false statements of material fact to the federal government in order to receive federal grant funds. Rodney was a backup investigator in the Department’s arson unit. Quinn joined his father’s suit, alleging that the Department retaliated against him for his father’s complaint. The district court granted the Department summary judgment on Quinn’s retaliation claim. The Seventh Circuit affirmed. Quinn was ranked, at best, five spots too low to receive an automatic selection and every discretionary pick in both classes had more markers than Quinn, consistent with the Department’s policy for discretionary selections. There is no evidence from which a reasonable jury could conclude that Rodney’s suit was even a motivating factor in the decision not to hire Quinn. Even assuming that the meaning of “employee” under section 3730(h) is could encompass job applicants, there are no facts from which a jury could conclude that Quinn was retaliated against because of his father’s suit. View "Heath v. Indianapolis Fire Department" on Justia Law

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Mimms, an Indiana-licensed physician, prescribes controlled substances to patients. Several times, CVS Pharmacy employees informed Mimms’s patients that they would not fill their prescriptions. Mimms sued, alleging defamation. CVS argued that Mimms had no evidence that the speakers knew their statements were false. The court granted summary judgment as to five statements and denied judgment for four statements, reasoning there was a material question of fact regarding whether the speakers knew that their statements were false, given evidence that CVS’s corporate office had investigated Mimms and had not stopped stores from filling his prescriptions. The court rejected CVS’s argument that knowledge held by the corporate office could not be imputed to the speakers. The statements were: “CVS doesn’t fill Dr. Mimms’[s] prescriptions or prescriptions for any other pill mills.” “Mimms went to jail.” “Mimms has been … or will be arrested.” “Mimms is under DEA investigation. A jury found CVS liable for defamation per se and awarded Mimms $1,025,000. The Seventh Circuit reversed. Mimms proffered no evidence that the first three statements were made with actual malice. CVS is entitled to a new trial on the fourth statement; the court should have allowed CVS to present evidence that Mimms was the subject of a DEA investigation and regarding Mimms’s reputation. In a defamation per se case, damage to reputation is presumed but evidence regarding the extent of the harm to his professional reputation was critical for minimizing damages. View "Mimms v. CVS Pharmacy, Inc." on Justia Law

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Jones took off running as officers in an unmarked police car approached. Officers Milone and Dillman gave chase, identifying themselves as police officer. At trial, Milone testified that, using a flashlight, he observed Jones holding his waistband while running, then observed Jones reach into his pocket, grab a firearm, and throw it over a fence. Dillman stated that he heard the gun hitting the ground. A gun was recovered behind the fence. Jones was charged with unlawful possession of a firearm as a felon, 18 U.S.C. 922(g)(1). The government successfully moved to preclude cross‐examination of Milone based on testimony he gave in another case (Brantley), pertaining to an armed robbery investigation, and his observations of the defendant from about 80 feet away. The Brantley judge concluded that he did not believe Milone was able to identify the subject from this distance, based on the squad video and photographs showing the amount of light, and an investigator’s testimony that she was unable to see anything from the same location. The judge emphasized that he was not suggesting that Milone testified untruthfully, but that his testimony reflected an inaccurate recollection. The Seventh Circuit affirmed his conviction. The probative values of allowing cross-examination of Milone based on Brantly would have been substantially outweighed by the danger of unfair prejudice and confusion of the issues. The court also rejected a claim of prosecutorial misconduct by “vouching” for Milone’s testimony. View "United States v. Jones" on Justia Law

Posted in: Criminal Law

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Brokers Webb and Beversdorf were fired by Jefferies. They challenged their termination. As their employment contracts required, they filed claims in the Financial Industry Regulatory Authority’s arbitration forum. They signed FINRA's required “Arbitration Submission Agreement.” Their dispute proceeded in arbitration for two-and-a-half years. They withdrew their claims before a final decision was rendered. Under FINRA’s rules, that withdrawal constituted a dismissal with prejudice. Webb and Beversdorf then sued FINRA in Illinois, alleging that FINRA breached its contract to arbitrate their dispute with Jefferies by failing to properly train arbitrators, failing to provide arbitrators with appropriate procedural mechanisms, interfering with the arbitrators’ discretion, and failing to permit reasonable discovery. They sought damages in “excess of $50,000” and a declaratory judgment. The district court held that FINRA was entitled to arbitral immunity and dismissed the suit. The Seventh Circuit vacated, concluding that the federal courts lacked jurisdiction under the diversity statute, 28 U.S.C. 1332, which grants jurisdiction when there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. While Illinois law permits plaintiffs to recover legal expenses as damages in limited circumstances, those circumstances are not present here, so the amount in controversy requirement was not satisfied. View "Webb v. Financial Industry Regulatory Authority" on Justia Law

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The initial six-month agreement between LimeCoral and CareerBuilder specified that all graphic designs created for CareerBuilder would constitute the exclusive property of CareerBuilder and said nothing about renewal fees. After six months, LimeCoral continued to prepare media files incorporating custom graphic designs, typically receiving $3,000 for each new design. As there was no longer a written agreement transferring ownership of the copyright, LimeCoral retained ownership and implicitly granted CareerBuilder a license to use the designs. CareerBuilder argued the license was unconditional and irrevocable; LimeCoral claimed it was subject to CareerBuilder’s alleged agreement to pay an annual renewal fee for every design that CareerBuilder continued to use. LimeCoral sued, alleging breach of copyright and breach of an alleged oral agreement to pay an annual renewal. The district court granted CareerBuilder summary judgment, finding that CareerBuilder had an irrevocable, implied license to use LimeCoral’s designs that was not conditioned upon any agreement to pay LimeCoral renewal fees. The Seventh Circuit affirmed. There was no evidence that would permit the factfinder to conclude that there was an agreement between LimeCoral and CareerBuilder that LimeCoral would be paid a fee for each renewal, and that the implied license LimeCoral granted to CareerBuilder to use the job brandings was subject to that agreement. View "LimeCoral, Ltd. v. CareerBuilder, LLC" on Justia Law

Posted in: Contracts, Copyright

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Chicago’s Independent Police Review Authority (IPRA) investigated complaints against police, including domestic violence, excessive force, and death in custody, and made disciplinary recommendations: allegations were “sustained,” “not sustained,” “exonerated,” or “unfounded.” Investigators interviewed witnesses and procured evidence to draft reports. IPRA’s Administrator retained final responsibility for making recommendations and establishing “rules, regulations and procedures for the conduct of investigations.” Davis became an IPRA investigator in 2008. Davis alleges that in 2014-2015, his supervisors ordered Davis to change “sustained” findings and make his reports more favorable to the accused officers. Davis refused and was allegedly threatened to with termination. Davis alleges that they requested Word versions of Davis’s reports to alter them to look like Davis had made the changes. The administrator then implemented a policy requiring his approval for all “sustained” findings: if an investigator refused to make a recommended change, he would be disciplined for insubordination. Davis again refused to change “sustained” findings and was fired. The Seventh Circuit affirmed the dismissal of his First Amendment claims. That an employee may have good reasons to refuse an order, does “not necessarily mean the employee has a cause of action under the First Amendment when he contravenes that order.” Because IPRA required Davis to draft and revise reports, his refusal to revise those reports was speech “pursuant to [his] official duties.” He spoke as a public employee, not a private citizen. The First Amendment does not protect this speech. View "Davis v. City of Chicago" on Justia Law

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HH intended to open an Indianapolis retail establishment, “Hustler Hollywood,” entered a 10-year lease, and applied for sign and building permits. HH’s proposed store was located in a zoning district that prohibited “adult entertainment businesses.” The Department of Business and Neighborhood Services determined that HH was an adult entertainment business; the Board of Zoning Appeals affirmed. HH sought a declaratory judgment that the ordinance violated its First and Fourteenth Amendment rights. The district court denied HH’s motion for a preliminary injunction. On interlocutory appeal with respect to its as-applied First Amendment claim, the Seventh Circuit affirmed. HH’s speech has not been silenced or suppressed; HH has only been told that it cannot operate in a particular commercial district. The ordinance is “content-neutral” and the city’s interest in reducing the secondary effects of adult businesses is a sufficient or substantial interest. Application of the ordinance resulted only in an incidental restriction on HH’s speech in a particular location. HH presented no evidence that officials displayed any bias or censorial intent in their determinations; the city was under no constitutional obligation to inspect the property or allow HH to open conditionally before making its determination. View "HH-Indianapolis, LLC v. Consolidated City of Indianapolis" on Justia Law

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Valenti is a convicted felon and registered sex offender, with a 1993 California conviction for a “Lewd or Lascivious Act with [a] Child Under 14 Years.” Valenti claimed that Indiana violated his right to vote by refusing to let him enter a polling site located at a school (Ind. Code 35-42-4-14(b)). His neighborhood polling place is a school gymnasium. The state allows serious sex offenders to vote by absentee ballot, Ind. Code 3‐11‐10‐24(a)(12), at a county courthouse, or at a civic center. The Seventh Circuit affirmed summary judgment in favor of the state defendants, noting that Valenti does not even have a constitutional right to vote: Section 2 of the Fourteenth Amendment gives states the “affirmative sanction” to exclude felons from the franchise. His right to vote is only statutory and the Indiana statute survives rational basis review. “Indiana’s position is an iron‐clad fortress in light of the rational basis test.” View "Valenti v. Lawson" on Justia Law