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Tuesday, August 11, 2009

Ind. Decisions - 7th Circuit decides 7 Indiana cases today

U.S. v. Floyd Deberry (ND Ind., Judge Simon)

In Estate of Moreland v. Dieter (ND Ind., Judge Simon), a 23-page opinion, Judge Dow [ND Ill., sitting by designation] writes:

Plaintiff-Appellant, the Estate of Christopher Moreland (the “Estate”), filed a motion for a writ of execution to enforce a judgment against St. Joseph County, Indiana and its Board of Commissioners (the “County”), pursuant to Indiana Code § 34-13-4-1 and Rule 69 of the Federal Rules of Civil Procedure. The district court denied the Estate’s motion. Because we conclude that the state law that the Estate seeks to invoke was not intended to apply retroactively, we affirm the order of the district court. * * *

Conclusion The beating death of Christopher Moreland reminds us, as this Court recently put it, that “[t]he distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short.” United States v. Bartlett, 567 F.3d 901, 903 (7th Cir. 2009). When public employees reveal through their actions exactly how short that distance is, they necessarily erode popular confidence in public institutions. Nevertheless, absent the predicates for direct legal liability against a governmental entity, determining how to restore that confidence is a matter of public policy rather than judicial construction. St. Joseph County, Indiana, may choose to compensate the Estate for the conduct of its officers, but because the Indiana General Assembly did not make its amendment to Ind. Code. § 34-13-4-1 retroactive, it is not a choice that we have the authority to impose. The order of the district court is AFFIRMED.

U.S. v. Virgil Smith (ND Ind., Judge Lee)

U.S. v. Jeffery Dean (SD Ind., Judge Barker)

In Antonio M. Johnson v. Steven Scott (ND Ind., Cosbey, Magistrate Judge), a 7-page opinion, Judge Wood writes:

When a suspect waves the white flag of surrender, the use of force in connection with an arrest may, as an objective matter, become unnecessary and inappropriate. Not all surrenders, however, are genuine, and the police are entitled to err on the side of caution when faced with an uncertain or threatening situation. This case involves Antonio M. Johnson, a suspect in a shooting who fled police first by car and then on foot. He made a last-second surrender when Sergeant Steven Scott and Archer, Scott’s German Shepherd police dog, were closing in on him. Archer bit Johnson’s left arm, and Scott struck Johnson in the process of handcuffing him.

Johnson filed suit under 42 U.S.C. § 1983 alleging that Scott used excessive force in violation of the Fourth Amendment during the course of the arrest. Scott filed a motion for summary judgment, which the district court granted. Johnson now appeals that decision to this court, and we affirm.

In Carlisle et al v. Deere & Co. (ND Ind., Judge Moody), a 17-page opinion, Judge Kanne writes:
The Beast, manufactured by Bandit Industries, Inc., is a commercial-grade tree grinder that weighs approximately 60,000 pounds and is the size of a semi-trailer. The Beast feeds on logs up to thirty-six inches in diameter, reducing them to mulch at a rate of up to one acre’s clearance per day. In 2002, the plaintiffs, Steve Carlisle and John Buszkiewicz, purchased a Beast, equipped with a 12.5-liter John Deere engine, for use in their landscaping and excavating business. Carlisle and Buszkiewicz soon discovered, however, that their Beast lacked the muscle befitting its name. The machine failed to perform as advertised, and the two men sued John Deere, seeking payment under the terms of an engine warranty. The district court granted summary judgment in Deere’s favor, a decision that we now affirm. * * *

We conclude that the Performance Programming Connector’s wiring was not the result of Deere’s workmanship or installation. As such, the wiring was not included under the terms of the warranty. We cannot hold Deere liable for breaching a promise it never made. See Ind. Code § 26-1-2- 313(1)(a). Because Deere’s warranty did not cover a thirdparty’s wiring of the PPC, we AFFIRM the district court’s order granting summary judgment in Deere’s favor.

In U.S. v. Powell and Harris (ND Ind., Judge Simon), a 30-page opinion, Judge Manion writes:
A grand jury indicted Willie Harris, a Gary, Indiana, lawyer, and Roosevelt Powell, who collected property taxes on behalf of Lake County, Indiana, for their role in the sale of two properties to the Gary Urban Enterprise Association. A jury found Harris and Powell guilty of wire fraud, conspiring to defraud the United States, and filing a false tax return. They appeal. We affirm their convictions and Harris’s sentence, but vacate Powell’s sentence and remand to the district court for further proceedings. * * *

The Gary Urban Enterprise Association (“GUEA”) was such an association; businesses located within the Gary enterprise zone contributed heavily to it in lieu of paying inventory taxes. However, due to a combination of a large pot of money at the GUEA’s disposal—as much as five million dollars a year—and minimal oversight over how the money was to be spent, the GUEA attracted a corrupt abuse of the funds. The GUEA was ultimately dissolved after an investigation revealed that the GUEA’s executive director, JoJuana Meeks, was treating the GUEA as her personal bank account. Prior to its demise, however, the GUEA had embarked on a propertypurchasing spree, acquiring many properties in Gary for the purpose of redeveloping them. The convictions of defendants Roosevelt Powell and Willie Harris in this case resulted from their roles in the sale of two properties in Gary to the GUEA: a former grocery store located at 6300 Miller, and a vacant building located at 768 Broadway. * * *

The government presented sufficient evidence that Powell and Harris knowingly participated in a scheme to defraud the Historical Society that involved the use of the interstate wires, and both Powell’s and Harris’s convictions under 26 U.S.C. § 7206(1) survive review for plain error. Furthermore, the district court properly calculated the loss amount used to determine both Harris’s and Powell’s sentences by adding the $150,000 proceeds the defendants purloined from the sale of 6300 Miller to the $58,000 Lake County lost in property taxes as a result of the fraudulent lawsuit. The district court also correctly enhanced Harris’s sentence based on his failure to comply with the grand jury subpoena requiring him to hand over accounting schedules material to the government’s investigation of his 2001 tax returns. And the disparity between Harris’s sentence and Powell’s was warranted. We therefore AFFIRM the defendants’ convictions and Harris’s sentence. However, because the district court appeared to improperly reject Powell’s arguments for leniency based on his advanced age and poor health, we VACATE and REMAND Powell’s sentence for further proceedings consistent with this opinion.

Posted by Marcia Oddi on August 11, 2009 01:17 PM
Posted to Ind. (7th Cir.) Decisions