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Wednesday, August 13, 2008

Ind. Decisions - 7th Circuit issues two Indiana opinions today

In Getch v. Astrue (ND Ind., Cherry, Magistrate Judge), 20-page opinion, Judge Ripple writes:

Charles Getch appeals the order of the district court upholding the Social Security Administration’s denial of his application for Disability Insurance Benefits. Mr. Getch contends that the Administrative Law Judge (“ALJ”), who denied his application for benefits, erred in concluding that environmental conditions at his former workplace did not prevent him from resuming his past work as a seam welder. Mr. Getch also contends that the ALJ failed to consider the combined impact of his health problems and erred in finding his testimony not fully credible. Finally, Mr. Getch argues that the Social Security Appeals Council erred in concluding that new evidence did not warrant rehearing before the ALJ. For the reasons set forth in this opinion, we reverse the judgment of the district court and remand for further proceedings before the agency.
In US v. Bender and Johnson (SD Ind., Judge Young), a 13-page opinion, Judge Sykes writes:
Vishnu Bender and Tony Johnson were convicted of conspiracy to distribute cocaine, cocaine base, and marijuana stemming from their involvement in a drug-distribution network operating between Chicago and Evansville, Indiana. Bender challenges the sufficiency of the evidence of a conspiracy and also claims he was denied his counsel of choice in violation of the Sixth Amendment. Johnson argues the district court improperly denied his motion for a new trial. That motion was premised on an alleged violation of the district court’s witness-sequestration order. In support of the motion, Johnson submitted a letter from a jail inmate who claimed to have overheard some of the coconspirator-witnesses discussing the case in their jail cell and expressing a willingness to lie in order to get reduced sentences.

We affirm. The evidence of Bender’s involvement in the charged drug conspiracy was overwhelming and included the usual array of intercepted telephone conversations, drug-seizure evidence, and extensive testimony from coconspirators regarding Bender’s role in maintaining the wholesale flow of drugs from Chicago to Evansville. Regarding the Sixth Amendment claim, the attorney Bender wanted to represent him declined to do so once alerted by the government to a possible conflict of interest. Moreover, by the time of trial, the attorney’s law license was suspended as a consequence of his own conviction on a drug charge. There was no Sixth Amendment violation.

Finally, Johnson’s argument about an alleged violation of the sequestration order is misplaced. The court’s order was entered pursuant to Rule 615 of the Federal Rules of Evidence, which permits the trial court to exclude witnesses from the courtroom “so that they cannot hear the testimony of other witnesses.” There is no evidence suggesting that any of the coconspirator-witnesses conveyed the substance of their testimony to one another. Regardless, only one of the witnesses the inmate-informant allegedly overheard discussing the case in the jail actually testified about Johnson’s involvement in the conspiracy; the testimony of the others pertained to Bender only. Johnson had ample opportunity at trial to cross-examine this witness about his motives and incentives for testifying.

Posted by Marcia Oddi on August 13, 2008 02:21 PM
Posted to Ind. (7th Cir.) Decisions