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Sunday, April 22, 2007

Ind. Decisions - 7th Circuit issues two Indiana-related opinions Friday

In US v. Swanson (SD Ind., Sarah Evans Barker, Judge), a 13-page opinion relating to the Countrymark fraud conviction, affirming the sentencing and the restitution and forfeiture orders, Judge Rovner writes:
Now in this second appeal, Swanson renews his disagreements with the district court’s calculation of the fraud loss and the amount of restitution, and he also presses a new contention that in formulating his guidelines sentence the court erroneously applied an upward adjustment for his role as an organizer or leader of extensive criminal activity. We are not persuaded by these arguments— or by others that rest on views about Booker that we have rejected in other cases—and accordingly affirm the judgment of the district court. * * *

Lastly, Swanson argues that he was entitled to a jury finding beyond a reasonable doubt regarding his forfeiture and restitution amounts. But because restitution is a civil remedy, rather than a criminal punishment, it may be determined by a judge using a preponderance of the evidence standard and remains unaffected by Booker. * * * Similarly, the Sixth Amendment and Booker do not apply to forfeiture orders because there is no statutorily prescribed maximum amount of forfeiture.

In Daniels v. Liberty Mutual Ins. (ND Ind., Rudy Lozano, Judge.), an 8-page opinion, Chief Judge Easterbrook writes:
This is another episode in long-running litigation commenced by Rick and Anna Daniels, who were acquitted of insurance fraud and now seek damages from persons who proposed or assisted the prosecution. The Danielses filed their suit in state court, and two of the defendants—Joseph Jaskolski and National Insurance Crime Bureau—would prefer to be in federal court. But the claim arises under state law, and the requirements of the diversity jurisdiction are not satisfied.

That has not deterred Jaskolski and the Bureau from trying to have issues, if not the whole suit, resolved in federal court. * * *

As we reminded Jaskolski the last time, state courts are competent to resolve questions of federal law. 427 F.3d at 459. Jaskolski and the Bureau may pursue on appeal in state court any argument they would have made in this court. If the Court of Appeals or the Supreme Court of Indiana concludes that the Attorney General abused his discretion, then the United States would be substituted as a defendant and the case would return to federal court. And if defendants’ contentions are finally rejected by Indiana’s judicial system, they may petition for a writ of certiorari under 28 U.S.C. §1257(a).

The appeal is dismissed for want of jurisdiction.

Posted by Marcia Oddi on April 22, 2007 02:47 PM
Posted to Ind. (7th Cir.) Decisions