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Wednesday, January 26, 2011

Ind. Decisions - 7th Circuit issues two Indiana rulings today; plus an opinion that will be appreciated by tax geeks

In U.S. v. Brock (ND Ind., Simon), a 10-page opinion, Judge Williams writes:

Ty Brock was stopped at a vehicle sobriety checkpoint in Lake Station, Indiana in the early morning hours of November 8, 2009. He did not pass with flying colors. Officers that approached Brock’s vehicle smelled a strong odor of marijuana when he rolled down his window and saw Brock trying to hide a ceramic plate with a powdery substance, a razor, and a straw on it under the driver’s seat. Brock was ordered out of the car and arrested, at which point a loaded gun was discovered strapped to his ankle. A search of his car yielded heroin, marijuana, and a second firearm. Brock moved to suppress the items, arguing that the stop of his car at the checkpoint violated his Fourth Amendment rights. After the district court denied the motion, Brock pleaded guilty to possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1), and carrying a firearm in furtherance of a federal drug trafficking crime, 18 U.S.C. § 924(c). He was sentenced to sixty months’ imprisonment and three years’ supervised release.

Brock appeals the district court’s denial of his motion to suppress the items found in his car during the checkpoint stop. He argues that the sobriety checkpoint in this case was unreasonably intrusive. We disagree. Because the checkpoint was neither objectively nor subjectively intrusive in any way that would outweigh the government’s interest in operating it, the checkpoint stop did not violate Brock’s Fourth Amendment rights. We affirm.

In Gipson v. U.S. (SD Ind., McKinney), an 8-page opinion, Judge Posner writes in reversing the district court:
Maurice Gipson, an inmate of a federal prison in Indiana, brought suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, complaining about complications of neck surgery because the prison’s medical staff had disregarded a medical directive that he be told to stop taking blood thinners at least five days before the operation. The district court granted summary judgment in favor of the government because Gipson had failed to submit a medical expert’s opinion that in disregarding the directive the prison’s medical staff had violated the applicable standard of care.
As for the tax geek option:

In Beard v. IRS, a 16-page opinion, Judge Evans begins:

This case presents the seemingly simple question of whether an overstatement of basis in ownership interests is an omission of income under the Internal Revenue Code Section 6501(e), thereby triggering a six-year, rather than the standard three-year, statute of limitations. But things are not always as they appear—the answer to the seemingly simple question requires a rather lengthy discussion of a case decided more than a half-century ago, in 1958, the year Elvis Presley was inducted into the army.

At issue here is a variant on a Son-of-BOSS (Bond and Option Sales Strategy) transaction, a type of abusive (so says the government) tax shelter that was popular a few years back. On the other side of this dispute, Kenneth and Susan Beard give the transaction a much more benign handle calling it simply “a tax advantaged transaction.” We think the government’s characterization is closer to the mark.

Posted by Marcia Oddi on January 26, 2011 09:56 AM
Posted to Ind. (7th Cir.) Decisions