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Wednesday, March 31, 2004

Indiana Law - Today's 7th Circuit Rulings

In GULEVSKY, SHMUEL E. v. BERKSON, BLAKE, an appeal from the ND Ill, ED, Judge Rovner writes:

Section 523(a)(2)(B) of the Bankruptcy Code makes nondischargeable debts procured by written misrepresentations of the debtor’s financial condition. But does § 523(a)(6) allow for debts procured by
oral misrepresentations of the debtor’s financial condition to be found nondischargeable? The bankruptcy court answered that question negatively and dismissed the complaint, and in a summary order, the district court affirmed. We agree with those courts and affirm the judgment of the district court. * * *

Finally, we note that in the conclusion of his brief, Gulevsky requests sanctions against Berkson for filing a frivolous appeal. The request will not be granted because it does not comply with the requirements of Federal Rule of Appellate Procedure 38, which requires sanctions requests to be presented in a “separately filed motion.” Although the rule does allow this court to sua sponte initiate sanctions proceedings, that power is discretionary. In any event, we do not believe that sanctions are warranted in this case. An appeal is frivolous when the appellant’s arguments are utterly meritless and have no conceivable chance of success. Berkson’s brief is relatively insubstantial but his argument is not so foreclosed by precedent that it warrants sanctions. [citations omitted; emphasis added]

A second decision by Judge Rovner today, USA v. RODRIGUEZ-CARDENAS, is also an appeal from the ND Ill, ED and deals with sentencing:
Alfonso Rodriguez-Cardenas pleaded guilty to conspiracy to distribute heroin and cocaine, 21 U.S.C. §§ 846, 841(a)(1). At sentencing Rodriguez-Cardenas requested a two-level reduction for being a minor participant in the conspiracy, U.S.S.G. § 3B1.2, but the district court denied his request and sentenced him to 37 months’ imprisonment. On appeal Rodriguez-Cardenas challenges the denial of the minor participant reduction, but the district court’s factual finding on that question is unassailable. We are publishing this opinion, however, to correct statements in several of our recent cases that might be read as inconsistent with a 2001 amendment that expressly rejected a limitation we had placed on eligibility for a mitigating-role reduction. U.S.S.G. § 3B1.2, App. C, amend. 635.

Posted by Marcia Oddi on March 31, 2004 02:15 PM
Posted to Indiana Decisions