Clambering on board

Greetings! These next few posts covering Seventh Circuit cases will be my first, so I beg your indulgence while I master the arcana of *.rss and *.html. I have arbitrarily determined to start the Seventh Circuit reporting with cases decided the week-ending December 2, 2005, since we have to start somewhere and beginning with establishment of the Court in 1891 would in all likelihood be little appreciated by the harried modern practitioner. So, to the cases ....

U.S. v. Medina, No. 02-1700 (12/8/05) -- Criminal -- As Judge Evans describes it, this case concerns 17 members of associates of "a Chicago street gang with a delightful name -- the Maniac Latin Disciples" who were charged with drug and firearms offenses. 10 were convicted; nine appealed their convictions and six their sentences (3 wisely chose to take what the Judge Gettleman gave them). The primary issue on appeal (there were a host of others, as is customary) was a claim of juror bias premised on allegedly "materially false" answers given by the juror who became the foreperson. Judge Evans rejected the claim, noting that the question posed during voir dire was "subjective, making it darn near impossible to prove that a given answer was false." Moral of the story: ask better questions on voir dire.

VanDeSande v. VanDeSande, No. 05-2831 (12/7/05) -- International Child Abduction Remedies Act -- a tragic tale of love gone bad and a district judge who inexplicably ruled that Belgian authorities could adequately address claims of child abuse by the Belgian father once the children were returned to Belgium pursuant to a Belgian court's custody order. The statute, 42 U.S.C Sec. 11601 et seq., entitles a person whose child has been abducted to the United States to the petition the court for return of the child. "The [District Court] must satisfy itself that the children will, in fact, and not just in legal theory, be protected if returned to their abuser's custody." And, "[I]f handing over custody of a child to an abusive parent creates a grave risk of harm to the child, in the sense that the parent may with some nonnegligible probability injure the child, the child should not be handed over, however severely the law of the parent's country might punish such behavior."

Gentle v. Barnhart, No. 05-1089 (12/7/05) -- Social Security -- reverses the decision of a parsimonious Administrative Law Judge who denied disability benefits to a woman with chronic pain caused by spinal disc disease, obesity, and depression, who formerly worked as a cafeteria and deli worker, because she was able to care for the daily needs of her two children and herself. "The administrative law judge's casual equating of household work to work in the labor market cannot stand."

U.S. v. Lopez, No. 05-2432 (12/6/05) -- Criminal -- affirms a sentence of 21 years in the Big House, denying an appeal premised on an incorrect calculation of the sentence contained in the plea agreement between the defendant and the government.

In re: Baker, No. 05-1580, (12/6/05) -- Bankruptcy -- details the results of an effort by a Chapter 7 trustee to gain title to a 2000 Oldsmobile Alero (by defeating the lien of the lender) in order sell the car and pay off general creditors. Baker bought the car in New Mexico where the car was titled and the lender's lien was perfected. Baker later moved to Wisconsin, but because she never titled the car there, the lender did not transfer the lien. The Court applied Section 409.303 of Wisconsin's codification of the UCC to hold that the law of the state which issued the certificate of title determines the perfectability of the lien. "We know of no authority for the notion, suggested by the trustee at oral argument, that a secured creditor is obligated to keep track of the domicile of its debtors."

U.S. v. Bokhari, No. 05-1302 (12/6/05) -- Criminal -- vacates criminal sentences for failure of the district court to make precise calculations of the total offense levels and corresponding sentencing ranges under the Sentencing Guidelines. Although after United States v. Booker, ___ U.S. ___ , 125 S.Ct. 738 (2005) the Federal Sentencing Guidelines are advisory only, district courts must calculate properly sentences properly under the Guidelines so that reviewing courts can determine if the sentence falls within the Guidelines (and so is presumptively reasonable) or is outside them (requiring an explanation of the deviation by the court). But, be careful what you ask for: "Finally, as we noted during oral argument, by asking that we vacate their sentences under these circumstances, on remand the defendants run the risk of exposing themselves to potentially higher sentences."

Harper v. Vigilant Ins. Co., No. 04-1087 (12/6/05) -- Insurance -- a sordid tale of promiscuous sex and homeowner's insurance. Plaintiff was the administrator of "Jane Doe's" estate. Jane had been assigned "John Doe's" rights to sue Vigilant for bad faith. Jane had obtained a judgment against John for infecting her with the HIV that later killed her. John demanded that Vigilant defend and indemnfy him, contending that these duties were owed because some of the consensual sex that he and Jane had engaged in had occurred in homes owned by his father and insured by the company. Plaintiff argued that John, as a resident of his father's "household" was covered by the policy. The court disagreed, largely because the evidence showed that during all relevant times he had resided with his mother.

Metropolitan Milwaukee Association of Commerce v. Milwaukee County, No. 05-1531, (12/5/05) -- Labor Law -- an action to enjoin a County ordinance requiring employers with contracts with the County to provide transportation services to the elderly to negotiate "labor peace agreements" with any union that wanted to organize its employees. The ordinance required such employers to enter into these agreements, mandated that they contain certain terms, and required the parties to submit terms to which they could not agree to arbitration. Union parties to the agreements were forbidden to strike while employer parties were required to provide their union counterparts with the names, addresses and telephone numbers of the employees who provided service to the county under the county contract. The court, relying on Wisconsin Dept. of Industry v. Gould, Inc., 475 U.S. 282 (1986), held the ordinance preempted by the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. because the "spending power of [of state and local government] may not be used as a pretext for regulating labor relations." The ordinance failed for two reasons: it applied to an employer's entire workforce, not just those who worked on the county contract, and it was not a "good faith" attempt by the county purchaser of the services to eliminate labor strife (the only permissible reason to condition the letting of a contract). Because the county could have insisted on inclusion of economic sanctions in the event of disruption to the work resulting from labor strife, "[t]he inference is inescapable that the County is trying to substitute its own labor relations philosophy for that of the National Labor Relations Act." The Supremacy Clause triumphant again!

Lhanzom v. Gonzales, No. O4-2889 (12/5/05) [Oh143M00] -- Asylum and Deportation -- in which a daughter of the Tibetan independence movement gets a second chance to remain in the U.S.  Lhanzom, after suffering much repression in her native Tibet because of her and her family's involvement in the Tibetan independence movement, escapes to Nepal, purchases forged documents that enable her to journey to the United States, where she applies for asylum some 4 years after her arrival here. At the hearing, the Immigration Judge displayed an incomplete understanding of South Asian geography, creating a credibility issue where none existed (e.g., testimony that Lhanzom resided in both Sikkim and India at the same time was true, not evasive, because Sikkim, formely an independent mountain kingdom, became a state within India since 1975). The Seventh Circuit affirmed the denial of the application for asylum since it was not filed within a year of arrival. The court reverses the order of deportation, however, because the IJ's credbility determination about Lhanzom's fear of persecution if deported to Tibet was based on a phantom testimonial inconsistency, and not supported by the competent evidence.