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

Jackson was convicted for conspiracy to distribute over 1,000 grams of heroin, 21 U.S.C. 841(a)(1) and 846; possession with intent to distribute a substance containing heroin, 21 U.S.C. 841(a)(1); and distribution of a substance containing heroin, 21 U.S.C. 841(a)(1). The Seventh Circuit affirmed, rejecting claims that the district court abused its discretion when it allowed a witness to testify that Jackson had threatened to kill her and that the prosecutor’s closing argument included improper vouching and invited the jury to consider matters other than his guilt in reaching its verdict. The threat testimony was both relevant to, and probative of, the central issue: whether Jackson conspired to distribute heroin. Even if the prosecutor’s comments were improper, the evidence against Jackson was substantial so that those comments did not affect the jury’s verdict; in addition the comments directly responded to the defense’s efforts to undermine the credibility of witnesses based on their cooperation with the government. The defense had an opportunity to counter the statements. View "United States v. Jackson" on Justia Law

Spicher suffers from osteoarthritis, degenerative disc disease, chronic obstructive pulmonary disease, fibromyalgia, and morbid obesity. In 2010, Spicher applied for Social Security Disability Insurance Benefits and Supplemental Security Income dating back to 2003. After a 2012 hearing, an ALJ found that Spicher was not disabled from 2003-2012. The district court remanded because the ALJ had not properly considered the limitations imposed by Spicher’s obesity, independently and in combination with her other impediments. On remand, Spicher focused on whether she had been disabled since December 2008, when her insured status expired. The ALJ consulted a second doctor who essentially adopted the findings of the medical reports already in the record. The ALJ stated that further consideration of Spicher’s obesity had not motivated her to change her conclusion, finding that Spicher could hold a sedentary position and perform three jobs identified by a vocational expert, and could occasionally crouch, crawl, balance, stoop, and kneel. The Seventh Circuit reversed, finding that the decision was not supported by substantial evidence. The ALJ did not address contradictory medical evidence when determining the types of sedentary jobs that Spicher could hold and failed to consider the interaction between her obesity and her non‐severe impairments. The court rejected a claim that the ALJ displayed antagonism toward Spicher in violation of her due process rights. View "Spicher v. Berryhill" on Justia Law

Since 2003, Smith has worked behind the meat counter at Rosebud, a local grocery store. After several years of ongoing sexual and racial harassment from his male coworkers and supervisor, Smith sued, citing Title VII of the Civil Rights Act of 1964, 42 U.S.C. 1981, and the Illinois Gender Violence Act. Smith had complained about the harassment, to no avail. The jury returned a verdict for Smith. The Seventh Circuit affirmed. To win, Smith had to show more than unwanted sexual touching or taunting; he had to show that the harassment occurred because of his sex. The evidence supports the inference that Smith’s coworkers harassed him because he was male. The shop was a mixed‐sex workplace, and only men were groped and taunted. Because men were treated differently from women at Rosebud, a reasonable jury could conclude that Smith was tormented because of his sex. Rosebud also argued that the district court should have awarded it judgment as a matter of law on Smith’s section 1981 retaliation claim and granted a new trial because of inflammatory statements that Smith’s counsel made during his closing argument. Rosebud did not raise either of these arguments below, so it has forfeited them. View "xSmith v. Rosebud Farm, Inc." on Justia Law

A class action stemming from Southwest’s decision to stop honoring drink vouchers for “business select” customers settled with the customers receiving replacement vouchers. The Seventh Circuit affirmed, holding that 28 U.S.C. 1712, the Class Action Fairness Act, allowed the court to award class counsel (Siprut) attorney fees ($1,365,882) based on the lodestar method rather than the value of the redeemed vouchers. On remand, Siprut sought supplemental fees. For its work on the motion to amend the fee award and the prior appeal, The court called the number of hours requested “grossly excessive,” stating that counsel was trying to reach “some of the originally hoped‐for $3,000,000 that Southwest agreed not to oppose.” The court awarded $455,294 plus expenses, then vacated so that the class would receive notice. In exchange for dismissal of an appeal, by objector Markow, Siprut agreed to take $227,647 plus $3,529.68 in expenses; Southwest agreed to issue two additional vouchers for each one claimed. The court was notified that the number of vouchers claimed under the original settlement was less than one-third what the parties earlier indicated and approved the new settlement. Southwest distributed the vouchers and paid Siprut. Markow then unsuccessfully moved for $80,000 in attorney fees and an incentive award of $1,000 from Siprut’s fee award. The Seventh Circuit reversed. Unless the parties to a class action settlement, including objecting parties, expressly agree otherwise, settlement agreements should not be read to bar objectors from requesting fees for their efforts in adding value to a settlement. View "Markow v. Southwest Airlines Co." on Justia Law

Galindo, a lawful permanent U.S. resident, had Kentucky convictions for possession of drug paraphernalia and was charged with removability under 8 U.S.C. 1227(a)(2)(B)(i). The IJ applied the categorical approach, under which an alien’s state conviction renders him removable if it “necessarily establishe[s]” a violation of federal law and the modified categorical approach, which applies if a divisible statute proscribes multiple types of conduct, some of which would constitute a removable offense. If a statute is divisible, a court may consult a limited class of documents to determine which alternative formed the basis of the conviction. The IJ determined that Galindo was not removable under the categorical approach because the Kentucky statute criminalizes paraphernalia for drugs that are not proscribed by federal law and that the modified categorical approach does not apply because the paraphernalia statute is not divisible, then terminated the removal proceedings. The BIA reversed, finding no “realistic probability” that Galindo’s conviction involved those drugs, and purported to enter a removal order. The Seventh Circuit vacated. While courts lack jurisdiction to review the BIA determination that the drug-paraphernalia convictions qualify as controlled-substance offenses and may review only a “final order of removal,” 8 U.S.C. 1252, they may vacate based on clear legal error. In this case, the IJ never made the requisite finding of removability; the Board lacked the authority to issue a removal order. View "Galindo v. Sessions" on Justia Law

Gianino Plastering operated in St. Louis for over 30 years but abruptly closed in 2012. Gianino’s son, Curt, who had worked at Gianino Plastering for over a decade, founded his own company, CWG, taking on some of Gianino’s customers and employees. CWG completed jobs that Gianino had begun. Curt went into business on the same day that a $196,940.73 judgment was entered against Gianino, arising out of Gianino’s 2009 collective bargaining agreement, which obligated the company to make regular contributions to the Welfare and Pension Funds. The Funds were blocked from collecting on their judgment because Gianino filed for bankruptcy. The Funds then sued CWG, asserting that CWG is Gianino’s successor and alter ego, liable for the judgment and for other ongoing violations of the collective bargaining agreement. After discovery, the district court ruled that the Funds had not produced enough evidence to proceed to trial. The Seventh Circuit reversed. The Funds proffered considerable evidence that a trier of fact could use to support its case against CWG. A reasonable factfinder could find both common ownership and control between the two entities; CWG’s capitalization, common equipment, and shared clients remain disputed matters for trial. The Funds have strong evidence of intent and undisputed evidence of knowledge. View "McCleskey v. CWG Plastering, LLC" on Justia Law

Abu-Shawish, the executive director of a non-profit organization, received a federally-funded (HUD) grant for a plan for revitalizing a Milwaukee street, submitting a plan that was “essentially identical” to a plan submitted by someone else. In 2005, he was convicted of federal program fraud, 18 U.S.C. 666(a)(1)(A). He served three years in prison. The Seventh Circuit vacated Abu-Shawish’s conviction because the statute requires that the defendant be an agent of the defrauded organization (Milwaukee). On remand, the district court dismissed the program fraud indictment. Abu-Shawish was indicted for mail fraud (18 U.S.C. 1341) and transporting, in foreign commerce, funds obtained by fraud (18 U.S.C. 2314). Acquitted in 2008, Abu-Shawish sought damages under 28 U.S.C. 1495 and 2513 for unjust conviction and imprisonment, having unsuccessfully sued for malicious prosecution. The Claims Court dismissed without prejudice because Abu-Shawish had not obtained a required certificate of innocence from the court where he was convicted.Abu-Shawish filed a pro se petition for a certificate of innocence. The government never responded and does not argue that Abu-Shawish’s petition is time-barred. The Seventh Circuit vacated the district court's dismissal. Abu-Shawish received no meaningful opportunity to be heard. The court applied a standard too rigorous for the pleading stage of a new civil case embedded within a closed criminal case. The question is whether Abu-Shawish can show by a preponderance of the evidence that he was not guilty of a crime, not whether the evidence would have allowed a conviction. View "Abu-Shawish v. United States" on Justia Law

Sembhi, a citizen of India, entered the U.S. in 1995 and overstayed his non-immigrant visa. Two years later, after he unsuccessfully sought asylum, Sembhi was charged as removable. Sembhi expected to obtain an I-130 visa based on his marriage to a U.S. citizen but when Sembhi appeared for a hearing in 2001, his counsel reported that his wife had obtained a default divorce. Sembhi’s counsel, Burton, indicated that Sembhi intended to explore vacating the divorce or cancellation of removal as an allegedly battered spouse or voluntary departure. The judge continued the matter. At the continued hearing Burton was present but Sembhi was not. Burton stated that he had not communicated with Sembhi in weeks despite attempts to contact him. Agreeing that Sembhi had received notice, the judge ordered Sembhi removed. More than 10 years later, Sembhi, represented by attorney Carbide, moved to reopen, blaming Burton for his failure to appear--an “exceptional circumstance.” The IJ denied Sembhi’s request. The BIA dismissed an appeal. Sembhi then acknowledged that his attorney had informed him orally of the hearing date but stated that he misunderstood the date. Before he filed this second motion, Sembhi had been married to another U.S. citizen for more than 10 years; his I-130 visa petition had been approved. After five adverse BIA decisions, Sembhi’s petition for review was denied by the Seventh Circuit. His fifth motion was late and numerically barred, 8 U.S.C. 1229a(c)(7)(A); Sembhi is not entitled to equitable tolling of those limitations. View "Sembhi v. Sessions" on Justia Law

The husband of the attorney representing the ex-wife of Perillo’s boyfriend called 911. Perillo was arrested in possession of multiple weapons and disguises while hiding in the caller’s SUV. Perillo was released on bond and fled. After she was re-arrested, her cellmate cooperated with the FBI in setting up a “sting” in which Perillo hired a hitman (undercover agent) to kill the attorney. She pleaded guilty to conspiracy to commit kidnapping, 18 U.S.C. 1201(c), and to commissioning a murder for hire, 18 U.S.C. 1958. Before sentencing, Perillo moved to withdraw her plea. The court denied Perillo’s motion and sentenced her to concurrent terms of 324 months for conspiracy to kidnap and 120 months for commissioning a murder for hire and ordered Perillo to pay $75,000 in restitution. The Seventh Circuit dismissed her appeal. Perillo’s plea agreement included a valid appellate waiver. The fact that other specific terms of the sentence were mentioned and restitution was not mentioned does not remove restitution from the “all provisions” language. To enter a knowing and voluntary plea, Perillo did not need to know of every defense theoretically available to the charges. She needed to know only the defenses that she could plausibly raise, given the nature of the charges and the evidence against her. Entrapment was not such a defense for Perillo. View "United States v. Perillo" on Justia Law

Lee was sentenced to life imprisonment. His sentence was reduced for his substantial assistance to the government and was later reduced to 112 months because of a retroactive Sentencing Guidelines change. After he was discharged, he began serving his supervised release. Lee missed numerous scheduled drug tests and probation meetings. He chased his girlfriend, Roland, down a flight of stairs and repeatedly kicked her after she fell. Lee fled, but was ultimately arrested. He called friends from jail, cajoling them to get Roland to change her story. The court found that Lee had violated the conditions of his supervised release. Lee argued that the battery was a state court misdemeanor and a state court “probably would have made both parties go to counseling.” The district court sentenced Roland to 30 months’ imprisonment, citing Lee’s numerous violations of supervised release leading up to the attack and the need to deter further criminal conduct and protect the public. The Seventh Circuit affirmed, noting that Lee did not argue that a longer sentence would unjustifiably subject him to harsher treatment than similarly situated defendants in the district court, Lee also complained that the district court failed to complete a form stating the reasons for his sentence. It is not clear that the court has an obligation to do so when revoking supervised release, but, in any case, Lee suffered no prejudice from the failure to complete this administrative task. View "United States v. Lee" on Justia Law