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Friday, November 06, 2009

Ind. Decisions - 7th Circuit decides one Indiana case, and an interesting voter registration / privacy case from Illinois

In USA v. James Owens (SD Ind., Judge McKinney), an 8-page opinion, Judge Kanne writes:

James Owens pled guilty to transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1) and (b)(1) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Owens’s plea agreement included a stipulation of the sentencing guidelines offense level calculation, including all aggravating and mitigating sentencing factors, except for one enhancement. The parties could not agree on the applicability of U.S.S.G. § 2G2.2(b)(3)(B), which comes into play when a defendant expects to receive a thing of value in exchange for his distribution of child pornography. Owens maintains that he should receive only a two-level enhancement because he did not expect to receive anything of value, and even if he did have an expectation, that expectation was of “role play” and not of a sexual encounter. The government maintains that Owens did expect to receive a sexual encounter, and accordingly, the five-level enhancement was appropriate. The district court agreed with the government and sentenced Owens to a term of 360 months’ imprisonment. Owens appealed the enhancement to his sentence, and we now affirm. * * *

Owens transmitted child pornography with the end goal of receiving a thing of value, namely sex, from the recipient. Because Owens’s ultimate goal was a sexual encounter with Erica and her children, and because neither the statute nor our precedent contain a temporal component in conjunction with the transfer, we AFFIRM the sentence.

In Joseph Lake v. Neal (ND Ill.), a 6-page opinion, Judge Evans writes:
The Duck Test holds that if it walks like a duck, swims like a duck, and quacks like a duck, it’s a duck. Joseph Lake, the plaintiff in this suit, flunks the Duck Test. He says, in effect, that if it walks like a duck, swims like a duck, and quacks like a duck, it sure as heck isn’t a duck.

The crux of Lake’s argument in this appeal is that a voter registration form is actually a motor vehicle record. He argues that the Chicago Board of Election Commissioners (Board) violated the Driver’s Privacy Protection Act (DPPA)—which regulates motor vehicle records—by disclosing personal information it obtains from voter registration records that were completed at an office of the Illinois Department of Motor Vehicles (DMV). After a parallel claim in state court was dismissed with prejudice, Lake instituted this class action suit against the Board. Recognizing a fatal flaw in Lake’s argument, the district court granted the defendants’ motion to dismiss for failure to state a claim. * * *

In 1998, Lake applied for a driver’s licence at an office of the Illinois DMV. Pursuant to the National Voter Registration Act (NVRA), he exercised an option to register to vote at the same time. He filled out and submitted a voter registration form, which was attached to the driver’s license application. The completed voter registration form was transmitted to the Board. In 2007, a fellow named Peter Zelchenko acquired Lake’s personal information—he says it was his name, date of birth, sex, address, former address, phone number, and social security number—by simply asking the Board for it. Zelchenko informed Lake that he acquired his personal information from the Board.

Lake raises two issues on appeal, but we need only discuss one: Did his complaint state a cause of action under the DPPA? * * *

Since a voter registration form filled out at the DMV is not a motor vehicle record under the DPPA, the Board could not have violated the DPPA by disclosing Lake’s personal information to the extent that it did.

Accordingly, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on November 6, 2009 10:31 AM
Posted to Ind. (7th Cir.) Decisions