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Wednesday, April 06, 2005

Ind. Decisions - 7th Circuit posts three today (at least so far)

Peoples, Robin v. USA (ND Ind., Robert L. Miller, Jr., Chief Judge) [8 pp.]

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges
EASTERBROOK, Circuit Judge. Robin Peoples is here for the third time contesting his convictions for bank robbery and associated offenses. Each time he has argued that he received ineffective assistance of counsel. Twice we resolved this claim on the merits; that is enough (if not once more than enough), and we decline to revisit the subject. * * * Affirmed.

USA v. Tedder, David H. (WD Wis.) [14 pp.]

Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit Judges. EASTERBROOK, Circuit Judge. For using his law license to help offshore gambling businesses conceal their identities and income, David Tedder has been convicted of conspiring to defraud the United States, see 18 U.S.C. §371, by assisting a wagering enterprise that violated 18 U.S.C. §1084, plus three counts of money laundering, see 18 U.S.C. §1956(h), §1957. No longer a member of the bar, Tedder is serving a sentence of 60 months’ imprisonment and has been fined more than $1 million; the district court also ordered almost $2.8 million to be forfeited. (Tedder resigned from the California bar to forestall resolution of disciplinary charges. He has been enjoined from practicing law in Florida, which he had done there despite his lack of a license. Florida Bar v. Tedder, 790 So. 2d 1110 (2001) (table).) * * *

Whether this conclusion will benefit Tedder in the end is a question for the district judge. Booker provides district judges with additional discretion, so on remand the judge might reimpose the 60-month sentence if she thinks it the most appropriate response to Tedder’s crimes and risks of recidivism; appellate review after Booker is for reasonableness. But our holding makes the range of 37 to 46 months’ imprisonment available without any need to justify departure from the Guidelines.

The judgment is affirmed except with respect to the term of imprisonment. That aspect of the judgment is vacated, and the case is remanded with instructions to resentence Tedder in light of Booker and this opinion.

Frey, Sarah E. v. EPA (SD Ind., Richard L. Young, Judge) [14 pp.]

Before EASTERBROOK, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. In this successive appeal, we confront another chapter in the long history of certain Superfund sites located near Bloomington, Indiana. The sites are contaminated with polychlorinated biphenyls (PCBs), dioxin, and other toxic chemicals. Sarah Frey, Kevin Enright, and the organization Protect Our Woods (to whom we refer collectively as “Frey”) are before us once again, trying to invoke the citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). That law, in general, permits a plaintiff to challenge cleanup efforts at Superfund sites once the Environmental Protection Agency (EPA) and other responsible parties proclaim their work to be completed. 42 U.S.C. § 9613(h)(4); Frey v. EPA, 270 F.3d 1129, 1133 (7th Cir. 2001) (Frey I). Frey argues that her suit meets the statutory criteria, because EPA has completed the excavation of PCBs and has not yet selected further remedies. The district court saw matters differently; it found that Frey’s action was (still) premature because EPA has made it clear that it is studying further cleanup options for the three sites challenged in this lawsuit: Lemon Lane Landfill, Neal’s Landfill, and Bennett’s Dump. We conclude, however, that because EPA has failed to provide any objective referent by which to measure its progress, Frey is finally entitled to her day in court. We reverse. * * *

We recognize that Congress intended for remedial action to be complete before permitting judicial review. Frey I, 270 F.3d at 1133; Schalk, 900 F.2d at 1095. Congress did not, however, intend to extinguish judicial review altogether. North Shore Gas Co. v. EPA, 930 F.2d 1239, 1245 (7th Cir. 1991). After a very long wait, the citizens of Bloomington are finally entitled to their day in court.

IV. For these reasons, we REVERSE the judgment of the district court and REMAND for proceedings consistent with this opinion.

Posted by Marcia Oddi on April 6, 2005 12:41 PM
Posted to Ind. (7th Cir.) Decisions