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Wednesday, April 20, 2005

Ind. Decisions - 7th Circuit posts three today

Midlock, Andrew v. Apple Vacations (CD Ill.) [9 pp. - civil]

Before POSNER, MANION, and WOOD, Circuit Judges.
POSNER, Circuit Judge. William Cremer, the lawyer for all but one of the defendants in this tort suit, appeals from an order fining him $5,000 and directing him to reimburse the plaintiffs $3,285.28 for attorneys’ fees. The suit had been filed in a state court in Joliet, Illinois, but Cremer, acting on behalf of one of the defendants whom he represented, removed the case to the federal district court in the Northern District of Illinois, the district in which Joliet is located. * * *

Cremer told the district court that his clients had insisted that he remove the case to federal court regardless of whether there was any legal basis for removal. That was a dreadful excuse. A lawyer who pursues frivolous litigation cannot defend himself by arguing that his client made him do so. A lawyer is under a legal duty not to yield to such importunings, and he opens himself to sanctions if he does. [some cites omitted] “Telling would-be litigants that the law is against them is an essential part of a lawyer’s job.” Bailey v. Bicknell Minerals, Inc., 819 F.2d 690, 693 (7th Cir. 1987). Cremer was properly sanctioned for conducting frivolous litigation. AFFIRMED.

USA v. Miller. Duane L. (SD Ind., David F. Hamilton, Judge) [11 pp. - criminal]

Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. After an undercover sting operation involving numerous purchases of the drug Ecstasy, the Marion County Sheriff’s Department arrested Duane Miller and an accomplice during a buy-bust operation. Miller was indicted for one count of conspiracy to distribute Ecstasy and two counts of distribution, and was convicted by a jury of conspiracy and one count of distribution. Miller appeals his conviction on four grounds, contending that there is insufficient evidence to support his convictions, that the district court abused its discretion by not allowing him to explain his request for new counsel before denying that request, that the district court’s enhancement for obstruction of justice violated his Sixth Amendment rights under United States v. Booker, 125 S.Ct. 738 (2005) and that the district court erred by not considering him for a reduction for his minor role in the offense. Though we find that there was sufficient evidence to support Miller’s convictions and that the district court did not abuse its discretion in denying his request for new counsel, we remand to the district court for a determination whether Miller should receive a role in the offense reduction. * * *

In summary, we AFFIRM Miller’s conviction and the district court’s denial of Miller’s request for a continuance. We REMAND this case to the district court for resentencing to allow it to determine whether, under the circumstances presented and under United States v. Rodriguez-Cardenas, Miller merits a reduction for an allegedly minor role in the offense.

USA v. Skoczen, Roman (ND Ill.) [21 pp. - criminal]

Before FLAUM, Chief Judge, and MANION and WOOD, Circuit Judges.
WOOD, Circuit Judge. On April 18, 1995, the police arrested Roman Skoczen along with several of his associates. Skoczen was accused and later convicted of conspiring to possess goods stolen from an interstate shipment and conspiring to transport stolen goods in interstate or foreign commerce. Skoczen appeals from a number of issues stemming from his trial and sentencing. We affirm Skoczen’s convictions. With respect to his sentence, we follow the limited remand procedure outlined in United States v. Paladino, Nos. 03-2296 et al., 2005 WL 435430 (7th Cir. Feb. 25, 2005), so that the district court may determine in the first instance whether the new discretionary sentencing regime established in United States v. Booker, 125 S.Ct. 738 (2005), affects the sentence that the court wishes to impose. * * *

We AFFIRM the judgment insofar as it relates to Skoczen’s convictions. With respect to his sentence, we order a LIMITED REMAND to the district court for further proceedings consistent with Paladino and this opinion. It will be up to the district court to indicate whether it is still inclined to impose the same sentence or if it believes that a different sentence would be the reasonable one to impose, in light of all relevant sentencing considerations (including but not limited to what we have said about its applications of the Guidelines). Pending the outcome of the limited remand, this court will retain jurisdiction over the appeal.

Posted by Marcia Oddi on April 20, 2005 12:52 PM
Posted to Ind. (7th Cir.) Decisions