Split (1)

train · 31.2k rows

id int64	name string	name_abbreviation string	decision_date string	docket_number string	court string	casebody string	judge1 string	judge2 string	judge3 string	exactly_three_caps int64	judge_designations string	opinions_count int64	dissent_count int64	concurrence_count int64	other_count int64	volume null	resource_url string	precedential_status string	010combined_count int64	020lead_count int64	040dissent_count int64	year int64	month int64	messages list
4,590,206		Red Barn Motors, Inc. v. NextGear Capital, Inc.	2019-02-13	18-1409	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and ROVNER and BRENNAN, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1409\nRED BARN MOTORS, INC., et al.,\n Plaintiffs-Appellants,\n v.\n\nNEXTGEAR CAPITAL, INC.,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:14-cv-01589-TWP-DML — Tanya Walton Pratt, Judge.\n ____________________\n\n ARGUED SEPTEMBER 7, 2018 — DECIDED FEBRUARY 13, 2019\n ____________________\n\n Before WOOD, Chief Judge, and ROVNER and BRENNAN, Cir-\ncuit Judges.\n ROVNER, Circuit Judge. This appeal presents us with only\nthe narrow issue of whether the district court erred in rescind-\ning class certification. The defendant-appellee, NextGear\nCapital, Inc., formerly known as Dealer Services Corporation,\nprovided lines of credit for financing the operations of used\ncar dealerships. The plaintiffs Red Barn Motors, Inc., Plati-\nnum Motors, Inc. and Mattingly Auto Sales, Inc., operated\n\f2 No. 18-1409\n\nused car dealerships, and were solicited by NextGear to enter\ninto a contract called a Demand Promissory Note and Secu-\nrity Agreement (the “Agreement”), whereby NextGear would\nissue a line of credit for them to access in purchasing used ve-\nhicles at automobile auctions. Those agreements provided the\nplaintiffs with a revolving line of credit, called a floorplan\nagreement, to purchase vehicles at the auction which they\nsubsequently would sell at their dealerships.\n In the typical auction and financing transaction, a new car\ndealer provides a trade-in vehicle to an auction company,\nwhich presents the vehicle to used car dealers at an auction.\nIf a used car dealer’s bid is accepted, that dealer takes posses-\nsion of the vehicle. The dealer then either pays the auction\ncompany directly or utilizes an automotive financing com-\npany such as NextGear, which pays the auction company and\nprovides financing by means of the floorplan agreement to\nthe dealer for repayment. The auction company forwards the\ntitle to the entity that paid for the vehicle—either the used car\ndealer or the financing company. According to the plaintiffs,\nNextGear deviated from that sequence. It did not pay the auc-\ntion house at the time that possession was delivered, instead\npaying only after it received the title to the vehicles pur-\nchased. Although it could take as long as eight weeks for\nNextGear to receive that title and pay the money to the auc-\ntion company, NextGear nevertheless charged interest and\ncurtailment fees to the plaintiffs from the date of the initial\npurchase. The plaintiffs brought this action challenging that\nimposition of interest fees during the period prior to the re-\nceipt of title, when NextGear was not yet paying any funds to\nthe auction house. They sought class certification to pursue\nthat challenge on behalf of all other dealers who were subject\n\fNo. 18-1409 3\n\nto the same Agreement with NextGear and were charged\nsuch interest.\n Federal Rule of Civil Procedure 23(a) sets forth explicit re-\nquirements for a case to proceed as a class action:\n (1) the class is so numerous that joinder of all\n members is impracticable (numerosity);\n (2) there are questions of law or fact common\n to the class (commonality);\n (3) the claims or defenses of the representa-\n tive parties are typical of the claims or defenses\n of the class (typicality); and\n (4) the representative parties will fairly and\n adequately protect the interests of the class (ad-\n equacy of representation).\nChicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chi-\ncago, 797 F.3d 426, 433 (7th Cir. 2015). In addition, one of the\nfour categories set forth in Federal Rule of Civil Procedure\n23(b) must be met in order for a case to proceed as a class ac-\ntion. The plaintiffs in this case assert that the case falls within\nRule 23(b)(3) which considers whether “questions of law or\nfact common to class members predominate over any ques-\ntions affecting only individual members, and … a class action\nis superior to other available methods for fairly and efficiently\nadjudicating the controversy.”\n The plaintiffs’ amended complaint included numerous\nclaims including breach of contract, constructive fraud, tor-\ntious interference with business relationships, unjust enrich-\nment, RICO violations, and RICO conspiracy. The district\ncourt granted class certification as to the breach of contract\n\f4 No. 18-1409\n\nclaim against NextGear and the substantive RICO claim\nagainst NextGear, Cox Automotive and John Wick pursuant\nto Federal Rule of Civil Procedure 23(a). In an extensive 30-\npage analysis, the court determined that the plaintiffs met all\nof the requirements of the Rule 23(a) factors—ascertainability,\nnumerosity, commonality, typicality, and adequacy of repre-\nsentation—and that the plaintiffs had also demonstrated un-\nder Rule 23(b)(3) that a class action was superior to other\nmethods of adjudication. Accordingly, on June 29, 2017, it\ngranted class status as to those claims.\n Approximately two weeks later, NextGear filed a Motion\nto Reconsider and/or Modify Class Certification Order. It ar-\ngued that the court failed to consider evidence and arguments\nsubmitted after the initial class certification briefing. Specifi-\ncally, NextGear maintained that the plaintiffs had asserted for\nthe first time in summary judgment briefing that the floorplan\nagreements are ambiguous on their face, and that under such\na theory courts must resort to extrinsic evidence on a plaintiff-\nby-plaintiff basis to determine the parties’ intent regarding\nthe contract. NextGear argued to the district court that “when\nambiguity in a contract has ‘open[ed] the door for extrinsic\nevidence,’ then ‘liability to the entire class for breach of con-\ntract cannot be established with common evidence.’” Dist. Ct.\nOrder on Pending Motions (1/12/2018) at 5, citing Avritt v. Re-\nliastar Life Ins. Co., 615 F.3d 1023, 1030 (8th Cir. 2010).\n In response, the plaintiffs argued that NextGear presented\nno new arguments that would warrant reconsideration, and\nthat the argument concerning ambiguous contracts and the\nimpact on class certification had already been presented in the\nDefendants’ Notice of Additional Authority and at oral argu-\nment on class certification. In addition, they argued that\n\fNo. 18-1409 5\n\nNextGear had mischaracterized their ambiguity argument.\nThe plaintiffs asserted that they continued to argue that the\ncontracts were unambiguous, and that only in the alternative\ndid they raise an argument of ambiguity. Moreover, under\nthat alternative theory of ambiguity, they maintain that the\ncourt would not be required to consider extrinsic evidence\nand that only common evidence would be required to resolve\nthe claims.\n Noting that it had the discretion to modify its certification\norder in light of subsequent developments in litigation, the\ncourt held that class certification was not appropriate. In stark\ncontrast to the extensive analysis in its decision granting class\ncertification, the court’s explanation for its decision to rescind\ncertification was terse, consisting, in its entirety, of the follow-\ning:\n The most important and significant develop-\n ment when considering the pending Motion to\n Reconsider is the Plaintiffs’ theory that the\n floorplan agreements forming the basis of their\n claims are ambiguous. The Court understands\n the Plaintiffs’ argument that the contracts are\n ambiguous on their face (patent ambiguity) and\n that such an ambiguity does not require consid-\n eration of extrinsic evidence, and in turn, does\n not require individualized proof. The Court\n agrees with the Plaintiffs that the contracts at is-\n sue are ambiguous; however, the Court agrees\n with the Defendants that ambiguity in the con-\n tracts requires consideration of extrinsic evi-\n dence, necessitates individualized proof, and\n undermines the elements of commonality and\n\f6 No. 18-1409\n\n predominance for class certification. Thus, class\n certification is not appropriate on the Plaintiffs’\n breach of contract claim. The Court directs the\n parties to its Order on Motions for Summary\n Judgment where the Court more fully reviews,\n analyzes, and discusses the parties’ arguments\n regarding ambiguity.\nId. at 8. Based on that reasoning, the court then proceeded to\ndetermine that class certification was unwarranted regarding\nthe substantive RICO claim as well.\n We review a district court’s decision to grant or deny cer-\ntification for abuse of discretion. Chicago Teachers Union, Local\nNo. 1, 797 F.3d at 433. We have recognized, however, that such\nreview, while deferential, “can and must also be exacting.” Id.\nA decision to deny or grant certification can have a consider-\nable impact on the playing field of litigation and requires a\nrigorous analysis. Id.; Bell v. PNC Bank, National Association,\n800 F.3d 360, 373 (7th Cir. 2015)\n The court’s denial of class certification lacks sufficient rea-\nsoning for our court, on review, to ascertain the basis of its\ndecision. Although the decision to grant class certification\nwas a model of clarity and thoroughness, analyzing the fac-\ntors in detail, the decision withdrawing class status provides\nonly the conclusion that an ambiguous contract “requires con-\nsideration of extrinsic evidence, necessitates individualized\nproof, and undermines the elements of commonality and pre-\ndominance for class certification.” Nor does the reference to\nits Order on Motions for Summary Judgment lend any in-\nsight. In that Order, the district court held that the floorplan\ncontracts were ambiguous as to when interest could begin to\naccrue, which required consideration of extrinsic evidence.\n\fNo. 18-1409 7\n\nThe court noted that the parties had designated evidence sug-\ngesting that various party representatives had conversations\nabout NextGear’s interest practices after the contracts were\nexecuted, but that evidence did not establish an undisputed\nfactual basis supporting either sides’ position as to the inter-\npretation of the contract or the parties’ intent. Accordingly,\nthe court deemed the matter inappropriate for summary\njudgment.\n Those holdings are insufficient to sustain the court’s as-\nsumption that commonality and predominance were lacking.\nNeither the categorization of the contract as ambiguous, nor\nthe prospect of extrinsic evidence, necessarily imperils class\nstatus. All parties concede that the floorplan contract in this\ncase is a standard form contract. And neither the plaintiffs nor\nthe defendants argue that the language in the contract has dif-\nferent meaning for different signatories; instead, all argue for\nan interpretation that would apply to all signatories of the\ncontract. In fact, with a form contract such as this one, uniform\napplication and interpretation of the clauses would be ex-\npected absent evidence that the form contracts in fact had a\nmeaning that varied from one signatory to another. Even if\nthe determination that the language is ambiguous as to when\ninterest could accrue opens the door to extrinsic evidence to\nascertain the intended meaning of that provision, the deter-\nmination of its meaning would apply to all signatories and\ntherefore would be capable of class-wide resolution.\n In fact, the court discussed that possibility in its initial de-\ntermination to certify the class. In analyzing the commonality\nfactor, the district court addressed the defendants’ argument\nthat certain questions, such as “whether NextGear made any\n\f8 No. 18-1409\n\nrepresentations to any putative class members about when in-\nterest would begin to accrue … must be proven separately as\nto each dealer, and thus, the answers can only be determined\non an individual, not a classwide, basis.” Dist. Ct. Entry on\nPlaintiffs’ Motion for Class Certification (06/29/2017) at 16.\nThe court rejected that argument. First, the court noted that\ncommonality requires a demonstration that class members\nhave suffered the same injury and held that the standard was\nmet because the plaintiffs had demonstrated that the class\nmembers “suffered the same alleged wrongful, premature\ncollection of interest and fees based on the same form contract\nand similar conduct by NextGear.” Id. at 18; see also Wal-Mart\nStores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). The court fur-\nther explained that “commonality exists where the ‘determi-\nnation of [the question] will resolve an issue that is central to\nthe validity of each one of the claims in one stroke,’ and where\nit will ‘generate common answers apt to drive the resolution\nof the litigation.’” (emphasis in original) Id., citing Wal-Mart,\n564 U.S. at 349–50.\n Therefore, when presented with the same issue in its ini-\ntial class certification decision—the ambiguity as to when in-\nterest would accrue—the court concluded that the ambiguity\ndid not prevent class certification because it was capable of a\ncommon answer. The court has not explained why a different\nconclusion to that question was reached in the Motion for Re-\nconsideration, instead mentioning only the need for extrinsic\nevidence.\n But the mere need for extrinsic evidence does not in itself\nrender a case an improper vehicle for class litigation. We have\nconsidered numerous cases in which the testimony of indi-\n\fNo. 18-1409 9\n\nviduals would be necessary to establish the meaning or exist-\nence of a policy, and the prospect of such individual testi-\nmony did not render class status improper. See, e.g., Bell, 800\nF.3d at 375 (discussing testimony of individuals which suffi-\nciently presented the issue of whether PNC had an unofficial\npolicy or practice that required employees classwide to work\noff-the-clock overtime hours); Phillips v. Sheriff of Cook County,\n828 F.3d 541 (7th Cir. 2016) (upholding decertification where\nevidence from individual detainees did not indicate a sys-\ntemic practice that could tie all of the claims together, but rec-\nognizing that the district court allowed certification of a nar-\nrower class where one common policy of staffing the jail with\nonly one dentist might constitute systemic deliberate indiffer-\nence). The proper focus for commonality is whether determi-\nnation of the question will yield common answers that could\nresolve the litigation. Wal-Mart, 564 U.S. at 349–50. Here, the\nclass was already narrowed to those who signed the specific\nform contract at issue here. With such a form contract, almost\nuniversally signed without negotiation or modification, there\nis no reason to think that the interpretation of the provision\nwill vary from one signatory to another, and therefore the is-\nsue is one that is capable of a common answer and for which\nthat common question predominates over questions affecting\nindividual class members. The district court, to conclude oth-\nerwise, would have to identify why that extrinsic evidence\nwould lead to another conclusion. But here, although the case\nwas nearing the trial date, we have no indication as to what\nevidence the court believed would render class certification\nimproper. See Bell, 800 F.3d at 377, quoting Szabo v. Bridgeport\nMachs, Inc., 249 F.3d 672, 676 (7th Cir. 2001) (“[i]f there are\nmaterial factual disputes that bear on the requirements for\nclass certification, the court must ‘receive evidence if only by\n\f10 No. 18-1409\n\naffidavit and resolve the disputes before deciding whether to\ncertify the class.’”)(emphasis omitted). Absent a more thor-\nough explanation of its reasoning, we cannot uphold the de-\ncision decertifying the class.\n The decision of the district court is VACATED and the\ncase REMANDED for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367459/", "author_raw": "Ilana Kara Diamond Rovner"}]}	WOOD	ROVNER	BRENNAN	1	{"WOOD": ", Chief", "ROVNER": ", Cir cuit", "BRENNAN": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590206/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,354	Veronica PRICE, Et Al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Et Al., Defendants-Appellees.	Veronica Price v. City of Chicago	2019-02-13	17-2196	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Sykes, Barrett, Griesbach", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2196\nVERONICA PRICE, et al.,\n Plaintiffs-Appellants,\n v.\n\nCITY OF CHICAGO, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Northern District of Illinois, Eastern Division.\n No. 16-cv-8268 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED FEBRUARY 13, 2018 — DECIDED FEBRUARY 13, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,\nChief District Judge. ∗\n SYKES, Circuit Judge. Pro-life “sidewalk counselors” sued\nto enjoin Chicago’s “bubble zone” ordinance, which bars\nthem from approaching within eight feet of a person in the\nvicinity of an abortion clinic if their purpose is to engage in\n\n\n∗ Of the Eastern District of Wisconsin, sitting by designation.\n\f2 No. 17-2196\n\ncounseling, education, leaﬂetting, handbilling, or protest.\nThe plaintiﬀs contend that the ﬂoating bubble zone is a\nfacially unconstitutional content-based restriction on the\nfreedom of speech. The district judge dismissed the claim,\nrelying on Hill v. Colorado, 530 U.S. 703 (2000), which upheld\na nearly identical Colorado law against a similar First\nAmendment challenge.\n Abortion clinic buﬀer-zone laws “impose serious bur-\ndens” on core speech rights. McCullen v. Coakley, 134 S. Ct.\n2518, 2535 (2014). Under Hill, however, a ﬂoating bubble\nzone like this one is not considered a content-based re-\nstriction on speech and thus is not subject to strict judicial\nscrutiny. 530 U.S. at 725. Rather, the ordinance is classiﬁed as\na content-neutral “time, place, or manner” restriction and is\ntested under the intermediate standard of scrutiny, which\nasks whether the law is narrowly tailored to serve signiﬁcant\ngovernmental interests. Id. at 725–26. Hill answered that\nquestion in the aﬃrmative, holding that the governmental\ninterests at stake—preserving clinic access and protecting\npatients from unwanted speech—are signiﬁcant, and an\n8-foot no-approach zone around clinic entrances is a narrow-\nly tailored means to address those interests. Id. at 716, 725–\n30.\n Hill’s content-neutrality holding is hard to reconcile with\nboth McCullen and Reed v. Town of Gilbert, 135 S. Ct. 2218\n(2015), and its narrow-tailoring holding is in tension with\nMcCullen. Still, neither McCullen nor Reed overruled Hill, so\nit remains binding on us. Moreover, Chicago’s bubble-zone\nlaw is narrower than the one upheld in Hill: Colorado’s no-\napproach zone applies within a 100-foot radius of a clinic\nentrance; Chicago’s applies within a 50-foot radius. Lastly,\n\fNo. 17-2196 3\n\nwe would open a circuit split if we allowed this facial chal-\nlenge to move forward. The Third Circuit, applying Hill,\nupheld Pittsburgh’s 8-foot bubble zone against a facial\nchallenge without requiring an evidentiary showing from\nthe City. See Brown v. City of Pittsburgh, 586 F.3d 263, 270–73\n(3d Cir. 2009). We aﬃrm the judgment.\n I. Background\n The case comes to us from a dismissal at the pleading\nstage, so we sketch the facts as alleged in the plaintiﬀs’\ncomplaint, accepting them as true for purposes of this\nappeal. Deppe v. Nat’l Collegiate Athletic Ass’n, 893 F.3d 498,\n499 (7th Cir. 2018). Pro-life advocates Veronica Price, David\nBergquist, Ann Scheidler, and Anna Marie Scinto Mesia\nregularly engage in what’s known as “sidewalk counseling”\non the sidewalks and public ways outside Chicago abortion\nclinics. This entails peacefully approaching women entering\nthe clinics to give them pro-life literature, discuss the risks of\nand alternatives to abortion, and oﬀer support if the women\nwere to carry their pregnancies to term. These conversations\nmust take place face to face and in close proximity to permit\nthe sidewalk counselors to convey a gentle and caring\nmanner, maintain eye contact and a normal tone of voice,\nand protect the privacy of those involved.\n In October 2009 the Chicago City Council adopted an or-\ndinance that eﬀectively prohibits sidewalk counseling by\nbanning the close approach it requires. The Council amend-\ned the City’s disorderly conduct ordinance to prohibit any\nperson from approaching within eight feet of another person\nnear an abortion clinic for the purpose of engaging in the\ntypes of speech associated with sidewalk counseling. The\nordinance provides:\n\f4 No. 17-2196\n\n A person commits disorderly conduct when\n he … knowingly approaches another person\n within eight feet of such person, unless such\n other person consents, for the purpose of passing\n a leaﬂet or handbill to, displaying a sign to, or en-\n gaging in oral protest, education, or counseling\n with such other person in the public way within a\n radius of 50 feet from any entrance door to a\n hospital, medical clinic or healthcare facili-\n ty … .\nCHI., ILL., CODE § 8-4-010(j)(1) (2009) (emphasis added).\nChicago’s ordinance is nearly identical to—indeed, was\nmodeled after—the Colorado law upheld in Hill. Both laws\nimpose an 8-foot no-approach bubble zone, but Chicago’s\nlaw operates within a smaller radius. Colorado’s 8-foot\nbubble zone applies within a 100-foot radius of an abortion-\nclinic entrance. Chicago’s applies within a 50-foot radius.\nThe City’s ordinance otherwise mirrors the law at issue in\nHill.\n In August 2016 the four sidewalk counselors and two ad-\nvocacy groups joined together to sue the City under\n42 U.S.C. § 1983 seeking declaratory and injunctive relief\nagainst the enforcement of the bubble-zone ordinance. Their\ncomplaint raised four claims: (1) the ordinance infringes the\nfreedom of speech guaranteed by the First Amendment, both\nfacially and as applied; (2) the ordinance is unconstitutional-\nly vague in violation of the Due Process Clause of the\nFourteenth Amendment; (3) the City selectively enforces the\nbubble-zone ordinance in violation of the Equal Protection\nClause of the Fourteenth Amendment; and (4) the ordinance\ninfringes the plaintiﬀs’ state constitutional right to freedom\n\fNo. 17-2196 5\n\nof speech and assembly. Much of the complaint describes\nspeciﬁc instances of selective or improper enforcement from\nearly 2010 through mid-2016, but those allegations have no\nbearing on this appeal.\n The City moved to dismiss the complaint for failure to\nstate a claim. See FED. R. CIV. P. 12(b)(6). The district judge\ngranted the motion in part. She ruled that Hill forecloses the\nfacial First Amendment challenge and the due-process\nvagueness claim. But she allowed the case to proceed on the\nas-applied First Amendment challenge, the equal-protection\nclaim alleging selective enforcement, and the state constitu-\ntional claims. The parties eventually settled these remaining\nclaims and jointly moved to dismiss them. The judge entered\nﬁnal judgment, setting up this appeal contesting only the\nRule 12(b)(6) ruling.\n II. Discussion\n We review a Rule 12(b)(6) dismissal de novo. O’Boyle v.\nReal Time Resolutions, Inc., 910 F.3d 338, 342 (7th Cir. 2018).\nThe plaintiﬀs contend that Chicago’s bubble-zone ordinance\nis a content-based restriction on speech and is facially un-\nconstitutional under strict scrutiny. Their fallback position is\nthat the ordinance ﬂunks the narrow-tailoring requirement\nof the intermediate test for content-neutral restrictions on\nspeech.\n The Supreme Court considered and rejected these precise\narguments in Hill, as the plaintiﬀs must and do\nacknowledge. As they see it, however, Hill is no longer an\ninsuperable barrier to suits challenging abortion clinic\nbubble-zone laws. The premise of their claim is that the\nCourt’s more recent decisions in Reed and McCullen have so\n\f6 No. 17-2196\n\nthoroughly undermined Hill’s reasoning that we need not\nfollow it.\n That’s a losing argument in the court of appeals. The\nCourt’s intervening decisions have eroded Hill’s foundation,\nbut the case still binds us; only the Supreme Court can say\notherwise. See State Oil Co. v. Kahn, 522 U.S. 3, 20 (1997) (“[I]t\nis this Court’s prerogative alone to overrule one of its prece-\ndents.”). The Court’s instructions in this situation are clear:\n“If a precedent of this Court has direct application in a case,\nyet appears to rest on reasons rejected in some other line of\ndecisions, the Court of Appeals should follow the case [that]\ndirectly controls, leaving to this Court the prerogative of\noverruling its own decisions.” Agostini v. Felton, 521 U.S. 203,\n237–38 (1997) (quotation marks omitted).\n That said, in the nineteen years since Hill was decided,\nthe Court has reﬁned the concept of content neutrality and\nclariﬁed the requirement of narrow tailoring in a First\nAmendment challenge of this type. To see how, it’s helpful\nto trace the doctrinal development in this speciﬁc corner of\nfree-speech law.\nA. Speech in a Traditional Public Forum\n We begin with ﬁrst principles. “The First Amendment\nreﬂects a profound national commitment to the principle\nthat debate on public issues should be uninhibited, robust,\nand wide-open.” Snyder v. Phelps, 562 U.S. 443, 452 (2011)\n(quotation marks omitted). “Leaﬂetting and commenting on\nmatters of public concern are classic forms of speech that lie\nat the heart of the First Amendment … .” Schenck v.\nPro-Choice Network of W. N.Y., 519 U.S. 357, 377 (1997). More-\nover, sidewalks and other public ways “occupy a special\n\fNo. 17-2196 7\n\nposition in terms of First Amendment protection because of\ntheir historic role as sites for discussion and debate.”\nMcCullen, 134 S. Ct. at 2529 (quotation marks omitted). These\npublic spaces—“traditional public fora” in the doctrinal\nnomenclature—“have immemorially been held in trust for\nthe use of the public and, time out of mind, have been used\nfor purposes of assembly, communicating thoughts between\ncitizens, and discussing public questions.” Hague v. Comm.\nfor Indus. Org., 307 U.S. 496, 515 (1939).\n As the Court explained in McCullen:\n It is no accident that public streets and side-\n walks have developed as venues for the ex-\n change of ideas. Even today, they remain one\n of the few places where a speaker can be conﬁ-\n dent that he is not simply preaching to the\n choir. With respect to other means of commu-\n nication, an individual confronted with an un-\n comfortable message can always turn the page,\n change the channel, or leave the Web site. Not\n so on public streets and sidewalks. There, a lis-\n tener often encounters speech he might other-\n wise tune out. In light of the First\n Amendment’s purpose to preserve an uninhib-\n ited marketplace of ideas in which truth will\n ultimately prevail, this aspect of traditional\n public fora is a virtue, not a vice.\n134 S. Ct. at 2529 (citation and quotation marks omitted).\nThus, speech “is at its most protected on public sidewalks.”\nSchenck, 519 U.S. at 377.\n\f8 No. 17-2196\n\n That the sidewalk counselors seek to reach women as\nthey enter an abortion clinic—at the last possible moment\nwhen their speech might be eﬀective—“only strengthens the\nprotection aﬀorded [their] expression.” McIntyre v. Ohio\nElections Comm'n, 514 U.S. 334, 347 (1995). “Urgent, im-\nportant, and eﬀective speech can be no less protected than\nimpotent speech, lest the right to speak be relegated to those\ninstances when it is least needed. No form of speech is\nentitled to greater constitutional protection … .” Id. (citation\nomitted). And direct “one-on-one communication” has long\nbeen recognized as “the most eﬀective, fundamental, and\nperhaps economical avenue of political discourse.”\nMcCullen, 134 S. Ct. at 2536 (quotation marks omitted).\n * * *\n It is a “guiding First Amendment principle that the gov-\nernment has no power to restrict expression because of its\nmessage, its ideas, its subject matter, or its content,” and this\nprinciple “applies with full force in a traditional public\nforum.” Id. at 2529 (quotation marks omitted). “Content-\nbased laws—those that target speech based on its communi-\ncative content—are presumptively unconstitutional” and get\nstrict judicial scrutiny; laws of this type “may be justiﬁed\nonly if the government proves that they are narrowly tai-\nlored to serve compelling state interests.” Reed, 135 S. Ct. at\n2226.\n On the other hand, the government has “somewhat wid-\ner leeway to regulate features of speech unrelated to its\ncontent.” McCullen, 134 S. Ct. at 2529. “[E]ven in a public\nforum the government may impose reasonable restrictions\non the time, place, or manner of protected speech, provided\nthe restrictions are justiﬁed without reference to the content\n\fNo. 17-2196 9\n\nof the regulated speech, that they are narrowly tailored to\nserve a signiﬁcant governmental interest, and that they leave\nopen ample alternative channels for communication of the\ninformation.” Ward v. Rock Against Racism, 491 U.S. 781, 791\n(1989) (quotation marks omitted).\n To date, the Supreme Court has applied the intermediate\nstandard of scrutiny to abortion-clinic buﬀer zones, with\nmixed results. We now turn to those cases.\nB. The Abortion Clinic Buﬀer-Zone Cases\n 1. Madsen v. Women’s Health Center and\n Schenck v. Pro-Choice Network of Western New York\n The Court’s ﬁrst two occasions to address abortion-clinic\nbuﬀer zones came in cases involving injunctions entered by\nstate and federal courts to address unlawful conduct associ-\nated with the large-scale clinic blockades of the early 1990s\nfor which ordinary law-enforcement responses had proven\nineﬀective. Schenck, 519 U.S. at 362–63 (describing the clinic\nblockades); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753,\n758–59 (1994) (same).\n In Madsen the Court reviewed a state-court injunction\nbarring the named defendants from entering a 36-foot buﬀer\nzone around a particular clinic. 512 U.S. at 760. As relevant\nhere, the injunction also established a 300-foot zone around\nthe clinic within which the defendants were prohibited from\n“physically approaching any person seeking the services of\nthe [c]linic” without that person’s consent. Id. The Court ﬁrst\nruled that these restrictions were content neutral and did not\nrequire strict scrutiny. Id. at 762–64. However, the Court\napplied a “more stringent” form of intermediate scrutiny\nbecause injunctions “carry greater risks of censorship and\n\f10 No. 17-2196\n\ndiscriminatory application than do general ordinances.” Id.\nat 764–65. This yielded a split result: The Court upheld the\nﬁxed 36-foot buﬀer zone but invalidated the ﬂoating “no\napproach” zone. Id. at 768–70, 773–74.\n In Schenck the Court applied Madsen and upheld a provi-\nsion in a federal-court injunction prohibiting the named\ndefendants from entering a ﬁxed 15-foot buﬀer zone around\nthe doorways, driveways, and parking lots of certain abor-\ntion clinics. 519 U.S. at 380–83. But the Court invalidated a\nprovision barring the defendants from approaching within\n15 feet of any person entering or leaving the clinics. Id. at\n377–79. The Court held that the 15-foot ﬂoating bubble zone\nwas unconstitutional because it prevented the defendants\n“from communicating a message from a normal conversa-\ntional distance or handing leaﬂets to people entering or\nleaving the clinics who [were] walking on the public side-\nwalks.” Id. at 377.\n The Court’s reasoning rested primarily on the venerable\nprinciple that leaﬂetting on public sidewalks is core protect-\ned speech. “Leaﬂetting and commenting on matters of public\nconcern are classic forms of speech that lie at the heart of the\nFirst Amendment, and speech in public areas is at its most\nprotected on public sidewalks, a prototypical example of a\ntraditional public forum.” Id. But the Court was also con-\ncerned that the ﬂoating bubble zone was not narrowly\ntailored: “With clinic escorts leaving the clinic to pick up\nincoming patients and entering the clinic to drop them oﬀ, it\nwould be quite diﬃcult for a protester who wishes to engage\nin peaceful expressive activity to know how to remain in\ncompliance with the injunction,” resulting in “substantial\nrisk that much more speech will be burdened than the\n\fNo. 17-2196 11\n\ninjunction by its terms prohibits.” Id. at 378. The Court\nreserved the question “whether the governmental interests\ninvolved would ever justify some sort of zone of separation\nbetween individuals entering the clinics and protesters,\nmeasured by the distance between the two.” Id. at 377 (em-\nphasis added).\n 2. Hill v. Colorado\n The Court returned to this subject in Hill, this time re-\nviewing a generally applicable law rather than a targeted\ninjunction. As we’ve noted, Chicago’s bubble ordinance is\nidentical to the Colorado law at issue in Hill except for the\nradius within which the no-approach zone applies. Because\nHill is decisive here, the decision merits close review.\n The Court began with the question of content neutrality,\nobserving that the 8-foot bubble zone “is not a regulation of\nspeech” but instead is simply “a regulation of the places\nwhere some speech may occur.” Hill, 530 U.S. at 719. And\nthe Colorado law, the Court said, was not content based\nbecause it “was not adopted because of disagreement with\nthe message the speech conveys” but rather to ensure clinic\naccess, protect patient privacy, and “provid[e] the police\nwith clear guidelines.” Id. at 719–20 (quotation marks and\nalteration omitted).\n The challengers argued that the law was content based\nbecause enforcement authorities would have to examine the\ncontent of the statements made by an approaching speaker\nto determine if a violation of the statute occurred. Id. at 720.\nThe Court disagreed, saying that the law “places no re-\nstriction on—and clearly does not prohibit—either a particu-\nlar viewpoint or any subject matter that may be discussed by\n\f12 No. 17-2196\n\na speaker. Rather, it simply establishes a minor place re-\nstriction on an extremely broad category of communications\nwith unwilling listeners.” Id. at 723. The Court added: “[W]e\nhave never suggested that the kind of cursory examination\nthat might be required to exclude casual conversation …\nwould be problematic.” Id. at 722. On these understandings,\nthe Court ruled that the bubble-zone law was properly\nclassiﬁed as a content-neutral time, place, or manner regula-\ntion of speech and did not require strict scrutiny. Id. at 725.\n Applying intermediate scrutiny, the Court held that\nColorado’s objectives—preserving clinic access and protect-\ning patients from unwelcome speech—count as signiﬁcant\ngovernmental interests, and an 8-foot ﬂoating bubble zone\nwithin 100 feet of a clinic entrance is a narrowly tailored\nmeans to serve them. Id. at 726–30. The Court distinguished\nthe Colorado law from the no-approach zone it had invali-\ndated just three years earlier: “Unlike the 15-foot zone in\nSchenck, this 8-foot zone allows the speaker to communicate\nat a ‘normal conversational distance.’” Id. at 726–27 (quoting\nSchenck, 519 U.S. at 377)). The Court acknowledged that the\n“burden on the ability to distribute handbills is more seri-\nous,” but that diﬃculty did not doom the Colorado law. Id.\nat 727. The 8-foot buﬀer zone, the Court said, did not “pre-\nvent a leaﬂetter from simply standing near the path of\noncoming pedestrians and proﬀering his or her material,\nwhich the pedestrians [could] easily accept.” Id.\n Rounding out its narrow-tailoring analysis, the Court re-\njected the argument that Colorado could achieve its objec-\ntives through less restrictive means—say by enforcing its\npreexisting laws against harassment, disorderly conduct,\nand battery, as Justice Kennedy posited in dissent. Id. at 729;\n\fNo. 17-2196 13\n\nid. at 777–78 (Kennedy, J., dissenting). As the Court put it,\nthe statute’s “prophylactic aspect” was justiﬁed based on the\n“great diﬃculty” of protecting abortion clinics and their\npatients via “legal rules that focus exclusively on the indi-\nvidual impact of each instance of behavior.” Id. at 729.\n 3. McCullen v. Coakley\n Hill was decided in 2000. No new buﬀer-zone case\nreached the Court until McCullen in 2014. At issue was a\nMassachusetts law imposing a ﬁxed 35-foot buﬀer zone\naround the entrance, exit, and driveway of every abortion\nclinic in the state. McCullen, 134 S. Ct. at 2526. Certain per-\nsons were exempt and could freely enter the zone: those\nentering or leaving the clinic; employees or agents of the\nclinic; law enforcement, ﬁreﬁghters, construction and utility\nworkers, and other municipal agents; and persons using the\nsidewalk or public way to reach a destination other than the\nclinic. Everyone else was kept out on pain of criminal penal-\nty. Id.\n As here, pro-life sidewalk counselors challenged the law.\nId. at 2527. They argued that the buﬀer-zone law was a\ncontent-based restriction on speech and required strict\nscrutiny. The Court disagreed. First, the Court noted that\n“the Act does not draw content-based distinctions on its\nface.” Id. at 2531. To be sure, the Court explained, the\nMassachusetts law “would be content based if it required\nenforcement authorities to examine the content of the mes-\nsage that is conveyed to determine whether a violation has\noccurred.” Id. (quotation marks omitted). But enforcement of\nthe law turned not on what people said while in the buﬀer\nzone “but simply on where they sa[id] it.” Id. “Indeed,” the\nCourt said, “[a person could] violate the Act merely by\n\f14 No. 17-2196\n\nstanding in a buﬀer zone, without displaying a sign or\nuttering a word.” Id.\n The Court continued:\n To be clear, the Act would not be content neu-\n tral if it were concerned with [the] undesirable\n eﬀects that arise from the direct impact of\n speech on its audience or listeners’ reactions to\n speech. … If, for example, the speech outside\n Massachusetts abortion clinics caused oﬀense\n or made listeners uncomfortable, such oﬀense\n or discomfort would not give the Common-\n wealth a content-neutral justiﬁcation to restrict\n the speech.\nId. at 2531–32 (citation, quotation marks, and alteration\nomitted). In the end the Court concluded that the justiﬁca-\ntions for the law—“ensuring safety and preventing obstruc-\ntion” at clinic entrances—“are, as a general matter, content\nneutral.” Id. at 2532.\n But the Massachusetts buﬀer-zone law did not survive\nintermediate scrutiny. Citing Schenck and Madsen (but not\nHill), the Court held that the Commonwealth’s safety and\naccess objectives were suﬃciently weighty under the inter-\nmediate standard of review. Id. at 2535. “At the same time,”\nhowever, “the buﬀer zones impose serious burdens on [the\nsidewalk counselors’] speech.” Id. Relying again on Schenck,\nthe Court observed that the ﬁxed 35-foot buﬀer zone made it\n“substantially more diﬃcult” for sidewalk counselors to\n“distribute literature to arriving patients” and to engage in\nthe kind of personal and compassionate conversations\nrequired for their messages to be heard. Id. at 2536.\n\fNo. 17-2196 15\n\n Amplifying the theory behind the intermediate standard\nof scrutiny, the Court signiﬁcantly clariﬁed the role of the\nnarrow-tailoring requirement:\n The tailoring requirement does not simply\n guard against an impermissible desire to cen-\n sor. The government may attempt to suppress\n speech not only because it disagrees with the\n message being expressed, but also for mere\n convenience. Where certain speech is associat-\n ed with particular problems, silencing the\n speech is sometimes the path of least re-\n sistance. But by demanding a close ﬁt between\n ends and means, the tailoring requirement\n prevents the government from too readily sac-\n riﬁcing speech for eﬃciency.\nId. at 2534 (quotation marks and alteration omitted). In other\nwords, “[f]or a content-neutral time, place, or manner\nregulation to be narrowly tailored, it must not ‘burden\nsubstantially more speech than is necessary to further the\ngovernment’s legitimate interests.’” Id. at 2535 (quoting\nWard, 491 U.S. at 799). Put in more positive terms, “[t]o meet\nthe requirement of narrow tailoring, the government must\ndemonstrate that alternative measures that burden substan-\ntially less speech would fail to achieve [its] interests, not\nsimply that the chosen route is easier.” Id. at 2540.\n Against these background principles of narrow tailoring,\nthe 35-foot ﬁxed buﬀer zone ﬂunked the test. “A painted line\non the sidewalk is easy to enforce, but the prime objective of\nthe First Amendment is not eﬃciency.” Id. Massachusetts\nhad less restrictive regulatory options to ensure access to\nabortion clinics and prevent harassment of patients: existing\n\f16 No. 17-2196\n\nstate and local laws banning obstruction of clinic entrances;\n“generic criminal statutes forbidding assault, breach of the\npeace, trespass, vandalism, and the like”; and targeted\ninjunctions like those in Schenck and Madsen. Id. at 2538. But\nthe Commonwealth had not shown that “it seriously under-\ntook to address the problem with less intrusive tools readily\navailable to it.” Id. at 2539.\n “Given the vital First Amendment interests at stake, it is\nnot enough for Massachusetts simply to say that other\napproaches have not worked.” Id. at 2540. The Court con-\ncluded that “[t]he buﬀer zones burden substantially more\nspeech than necessary to achieve the Commonwealth’s\nasserted interests.” Id. at 2537.\n The Court closed with this:\n [The sidewalk counselors] wish to converse\n with their fellow citizens about an important\n subject on the public streets and sidewalks—\n sites that have hosted discussions about the is-\n sues of the day throughout history. [Massachu-\n setts] assert[s] undeniably signiﬁcant interests\n in maintaining public safety on those same\n streets and sidewalks, as well as in preserving\n access to adjacent healthcare facilities. But here\n the Commonwealth has pursued those inter-\n ests by the extreme step of closing a substantial\n portion of a traditional public forum to all\n speakers. It has done so without seriously ad-\n dressing the problem through alternatives that\n leave the forum open for its time-honored pur-\n poses. The Commonwealth may not do that\n consistent with the First Amendment.\n\fNo. 17-2196 17\n\nId. at 2541.\n 4. Reed v. Town of Gilbert\n One more case is important to the current doctrinal land-\nscape, though it did not involve an abortion-clinic buﬀer\nzone. Reed was a First Amendment challenge to the Sign\nCode in the Town of Gilbert, Arizona, which classiﬁed signs\nby the type of information they conveyed and regulated each\ncategory diﬀerently. 135 S. Ct. at 2224–25. For example,\n“Ideological Signs”—deﬁned as any sign “communicating a\nmessage or idea[] for noncommercial purposes” other than\nconstruction signs, directional signs, and certain other\ncategories—were treated most favorably. Id. at 2224. “Politi-\ncal Signs”—any “temporary sign designed to inﬂuence the\noutcome of an election”—were treated less favorably than\nIdeological Signs. Id. “Temporary Directional Signs” were\nregulated most heavily. Id. at 2225.\n The Court began with an important clariﬁcation of the\ncontent-neutrality inquiry. First, a “regulation of speech is\ncontent based if a law applies to particular speech because of\nthe topic discussed or the idea or message conveyed.” Id. at\n2227. The Court explained that the threshold question in the\ntest for content neutrality is whether the challenged regula-\ntion “on its face draws distinctions based on the message a\nspeaker conveys.” Id. (quotation marks omitted). The Court\ncontinued: “Some facial distinctions based on a message are\nobvious, deﬁning regulated speech by particular subject\nmatter, and others are more subtle, deﬁning regulated\nspeech by its function or purpose. Both are distinctions\ndrawn based on the message a speaker conveys” and require\nstrict scrutiny. Id.\n\f18 No. 17-2196\n\n The Court then identiﬁed a “separate and additional cat-\negory of laws that, though facially content neutral, will be\nconsidered content-based regulations of speech: laws that\ncannot be justiﬁed without reference to the content of the\nregulated speech[] or … were adopted by the government\nbecause of disagreement with the message the speech con-\nveys.” Id. (emphasis added) (quotation marks and alteration\nomitted). Laws of this type also get strict judicial scrutiny. Id.\nat 2227.\n On this illumination of the concept of content neutrality,\nthe Court ruled that the Town’s Sign Code “is content based\non its face.” Id. The Town’s regulatory requirements for “any\ngiven sign … depend entirely on the communicative content\nof the sign.” Id. As the Court put it:\n If a sign informs its reader of the time and\n place a book club will discuss John Locke’s\n Two Treatises of Government, that sign will be\n treated diﬀerently from a sign expressing the\n view that one should vote for one of Locke’s\n followers in an upcoming election, and both\n signs will be treated diﬀerently from a sign ex-\n pressing an ideological view rooted in Locke’s\n theory of government.\nId.\n The Town insisted that strict scrutiny did not apply be-\ncause it had not discriminated between particular ideas or\nviewpoints within each sign category. The Court resound-\ningly rejected that position: “A law that is content based on\nits face is subject to strict scrutiny regardless of the govern-\nment’s benign motive, content-neutral justiﬁcation, or lack of\n\fNo. 17-2196 19\n\nanimus toward the ideas contained in the regulated speech.”\nId. at 2228 (quotation marks omitted). Put somewhat more\ndirectly: “[A] speech regulation targeted at speciﬁc subject\nmatter is content based even if it does not discriminate\namong viewpoints within that subject matter.” Id. at 2230.\n The Town could not defend its Sign Code under strict\nscrutiny. The Court assumed for the sake of argument that\nthe Town’s objectives—aesthetics and traﬃc safety—were\ncompelling enough to satisfy this most exacting standard of\nreview. Id. at 2231. But the Code’s content-based distinctions\nwere “hopelessly underinclusive.” Id. The Town could not\nexplain how its interests in beautiﬁcation and safety were\nfurthered by strictly limiting temporary directional signs but\nallowing other types of signs to proliferate. Id. “In light of\nthis underinclusiveness,” the Court held, “the Town has not\nmet its burden to prove that its Sign Code is narrowly\ntailored to further a compelling governmental interest.” Id.\nat 2232.\nC. Hill After Reed and McCullen\n Hill is incompatible with current First Amendment doc-\ntrine as explained in Reed and McCullen. To begin, Hill\nstarted from the premise that “[t]he principal inquiry in\ndetermining content neutrality … is whether the govern-\nment has adopted a regulation of speech because of disa-\ngreement with the message it conveys.” 530 U.S. at 719\n(quoting Ward, 491 U.S. at 791). After Reed that’s no longer\ncorrect. We now know that the ﬁrst step in the content-\nneutrality inquiry is to ask whether the challenged law is\n“content based on its face.” Reed, 135 S. Ct. at 2228.\n\f20 No. 17-2196\n\n As Reed explained, a “separate and additional category” of\ncontent-based laws includes facially neutral laws that “can-\nnot be justiﬁed without reference to the content of the regu-\nlated speech[] or … were adopted because of disagreement\nwith the message the speech conveys.” Id. at 2227 (emphases\nadded) (quotation marks and alteration omitted). But “an\ninnocuous justiﬁcation cannot transform a facially content-\nbased law into one that is content neutral.” Id. at 2228.\n“Because strict scrutiny applies either when a law is content\nbased on its face or when the purpose and justiﬁcation for\nthe law are content based, a court must evaluate each ques-\ntion before it concludes that the law is content neutral and\nthus subject to a lower level of scrutiny.” Id. (emphases\nadded).\n In fairness, Hill did not completely ignore the actual text\nof the Colorado statute. Though not clearly delineated, its\nfacial analysis was twofold. The Court ﬁrst concluded that\nColorado’s bubble-zone law was content neutral because it\ndidn’t restrict “either a particular viewpoint or any subject\nmatter that may be discussed by a speaker.” Hill, 530 U.S. at\n723. In other words, the absence of viewpoint or subject-\nmatter discrimination was a suﬃcient indicator of content\nneutrality. Second, the Court dismissed the fact that en-\nforcement authorities had to examine the content of an\napproaching speaker’s statements to determine if a violation\nof the law had occurred: “We have never held, or suggested,\nthat it is improper to look at the content of an oral or written\nstatement in order to determine whether a rule of law ap-\nplies to a course of conduct.” Id. at 721.\n Neither rationale survives McCullen and Reed. McCullen\nexplained in no uncertain terms that a law is indeed content\n\fNo. 17-2196 21\n\nbased if enforcement authorities must “examine the content\nof the message that is conveyed to determine whether a\nviolation has occurred.” 134 S. Ct. at 2531 (quotation marks\nomitted). And Reed clariﬁed that the lack of viewpoint or\nsubject-matter discrimination does not spare a facially\ncontent-based law from strict scrutiny. 135 S. Ct. at 2230. As\nwe explained shortly after Reed was decided, the Court has\n“eﬀectively abolishe[d] any distinction between content\nregulation and subject-matter regulation. Any law distin-\nguishing one kind of speech from another by reference to its\nmeaning now requires a compelling justiﬁcation.” Norton v.\nCity of Springﬁeld, 806 F.3d 411, 412 (7th Cir. 2015). In the\nwake of McCullen and Reed, it’s not too strong to say that\nwhat Hill explicitly rejected is now prevailing law.\n There is more. Reed explained that a law is content based\nif it draws “more subtle” facial distinctions like those that\n“deﬁn[e] regulated speech by its function or purpose.” 135 S.\nCt. at 2227. By its terms, the law upheld in Hill regulates\nspeech undertaken “for the purpose of … engaging in oral\nprotest, education, or counseling.” 530 U.S. at 707 (emphasis\nadded) (quotation marks omitted). And divining purpose\nclearly requires enforcement authorities “to examine the\ncontent of the message that is conveyed.” McCullen, 134 S.\nCt. at 2531 (quotation marks omitted). How else could the\nauthorities distinguish between a sidewalk counselor (ille-\ngal) and a panhandler, a pollster, or a passerby who asks for\nthe time (all legal)?\n Here’s another incongruity between Hill and the Court’s\ncurrent jurisprudence. McCullen emphasized that a law is\ncontent based if it is “concerned with [the] undesirable\neﬀects that arise from the direct impact of speech on its\n\f22 No. 17-2196\n\naudience or listeners’ reactions to speech.” 134 S. Ct. at 2531–\n32 (quotation marks and alteration omitted). Yet Hill repeat-\nedly cited concern for listeners’ reactions as an acceptable\njustiﬁcation for Colorado’s bubble-zone law. True, the Court\nalso mentioned concerns about clinic access and safety, but\nthat does not diminish its emphasis on Colorado’s interest in\n“protect[ing] listeners from unwanted communication” and\nsafeguarding the right “to be let alone.” 530 U.S. at 715–16,\n724 (quotation marks omitted). Indeed, the Court highlight-\ned the “emotional harm suﬀered when an unwelcome\nindividual delivers a message … at close range.” Id. at 718\nn.25. The bubble-zone law upheld in Hill was aimed in\nsubstantial part at guarding against the undesirable eﬀects\nof the regulated speech on listeners. After McCullen that’s\nnot a content-neutral justiﬁcation.\n Finally, Hill’s narrow-tailoring analysis conﬂicts with\nMcCullen’s insistence that “the government must demon-\nstrate that alternative measures that burden substantially\nless speech would fail to achieve [its] interests, not simply\nthat the chosen route is easier.” 134 S. Ct. at 2540. Recall\nMcCullen’s exhortation against the use of broad prophylactic\nregulations in speech-sensitive zones: “A painted line on the\nsidewalk is easy to enforce, but the prime objective of the\nFirst Amendment is not eﬃciency. … Given the vital First\nAmendment interests at stake, it is not enough for\nMassachusetts simply to say that other approaches have not\nworked.” Id. In stark contrast, Hill speciﬁcally approved the\n“bright-line prophylactic” aspect of Colorado’s bubble-zone\nlaw precisely because other less restrictive measures—e.g.,\nlaws against harassment and breach of the peace—were\nharder to enforce. 530 U.S. at 729.\n\fNo. 17-2196 23\n\n In short, McCullen and Reed have deeply shaken Hill’s\nfoundation. Yet the case remains on the books and directly\ncontrols here. The plaintiﬀs urge us to follow the Third\nCircuit’s lead in Bruni v. City of Pittsburgh, which reversed\nthe dismissal of a challenge to Pittsburgh’s ﬁxed 15-foot\nclinic buﬀer zone and remanded for a case-speciﬁc narrow-\ntailoring analysis in light of McCullen. 824 F.3d 353, 372–73\n(3d Cir. 2016). The court held that dismissal at the pleading\nstage was improper based on McCullen’s “important clariﬁ-\ncation of the rigorous and fact-intensive nature of intermedi-\nate scrutiny’s narrow-tailoring analysis.” Id. at 372. This was\nso, the court held, notwithstanding circuit precedent that\nupheld Pittsburgh’s 15-foot buﬀer zone just a few years\nearlier. Id. at 367–73 (distinguishing Brown v. City of\nPittsburgh, 586 F.3d 263 (3d Cir. 2009)).\n We do not regard Bruni’s approach as a viable option\nhere. As we’ve noted, Chicago’s bubble-zone ordinance is a\ncarbon copy of the Colorado law upheld in Hill except for\nthe smaller radius within which it applies. And Hill’s\nnarrow-tailoring analysis was highly generalized; it did not\nrest on the speciﬁc facts of the case or an evaluation of\nColorado’s evidentiary showing. Accordingly, a remand for\na case-speciﬁc narrow-tailoring analysis would eﬀectively\ndeny Hill’s controlling force.\n It would also create a circuit split. In Brown, the prede-\ncessor case to Bruni, the Third Circuit upheld a separate\nprovision in Pittsburgh’s abortion-clinic law establishing an\n8-foot no-approach bubble zone within a 100-foot radius of\nclinic entrances—“a virtually verbatim copy of the Hill\nstatute”—without requiring a factual showing from the City.\n586 F.3d at 273. Bruni left that part of Brown untouched.\n\f24 No. 17-2196\n\n Hill directly controls, notwithstanding its inconsistency\nwith McCullen and Reed. Only the Supreme Court can bring\nharmony to these precedents. The district judge correctly\ndismissed the facial First Amendment challenge.\nD. Due-Process Vagueness Claim\n In a cursory ﬁnal argument, the plaintiﬀs maintain that\nChicago’s bubble-zone ordinance is unconstitutionally\nvague. This argument too is foreclosed by Hill, which reject-\ned a vagueness challenge to Colorado’s bubble-zone law.\n530 U.S. at 732–33. The plaintiﬀs rely on Justice Kennedy’s\ndissenting position: “In the context of a law imposing crimi-\nnal penalties for pure speech, ‘protest’ is an imprecise word;\n‘counseling’ is an imprecise word; ‘education’ is an impre-\ncise word.” Id. at 773 (Kennedy, J., dissenting). Perhaps he\nwas right, but his view did not carry the day. The judge\nproperly dismissed the due-process vagueness claim.\n III. Conclusion\n The road the plaintiﬀs urge is not open to us in our hier-\narchical system. Chicago’s bubble-zone ordinance is materi-\nally identical to—indeed, is narrower than—the law upheld\nin Hill. While the Supreme Court has deeply unsettled Hill, it\nhas not overruled the decision. So it remains binding on us.\nThe plaintiﬀs must seek relief in the High Court.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367607/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT	GRIESBACH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590354/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,355		United States v. Samuel Yarber	2019-02-13	18-1469	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before MANION, BRENNAN, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1469\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nSAMUEL J. YARBER,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 2:17-cr-20007 — Colin S. Bruce, Judge.\n ____________________\n\n ARGUED JANUARY 24, 2019 — DECIDED FEBRUARY 13, 2019\n ____________________\n\n Before MANION, BRENNAN, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. Police in Champaign, Illinois\nobtained warrants to search two apartments connected to\nSamuel Yarber. The searches turned up drugs and handguns\nand ultimately led to Yarber’s convictions for federal narcotics\nand ﬁrearms oﬀenses. Along the way, Yarber challenged the\nwarrant to search one of the apartments as unsupported by\nprobable cause. While the warrant aﬃdavit fell short in one\nrespect—it did not establish that Yarber lived at the apartment\n\f2 No. 18-1469\n\nand thus could not support an inference that evidence of his\ndrug-dealing would be kept there—it nonetheless contained\nother facts suﬃcient to establish probable cause. And in any\nevent the police relied in good faith upon the warrant. On this\nrecord, then, we aﬃrm.\n I\n Law enforcement undertook an investigation after\nreceiving information from a conﬁdential source that Yarber\nwas selling drugs in the Champaign-Urbana area. The\nconﬁdential source bought cocaine from Yarber on four\nseparate occasions near the same intersection in Champaign.\nThe police observed Yarber before and after each transaction.\nAnd each time, Yarber drove a white Dodge Charger, which\nwas registered to his girlfriend. Immediately following two of\nthe controlled buys, Yarber drove to his girlfriend’s apartment\nin Champaign. The police surveilled the apartment on three\nadditional occasions, and all three times saw the white Dodge\nCharger parked in front. On one occasion they saw Yarber exit\nthe Dodge Charger and go inside the apartment.\n All of this information was set forth in an aﬃdavit pre-\nsented to a Champaign County Circuit Court judge in support\nof the police’s request for a search warrant. The attesting of-\nﬁcer also stated that, based on his training and experience,\ndrug dealers often use vehicles registered to someone else to\nevade detection by law enforcement. The Champaign County\njudge found that these facts established the requisite probable\ncause to search the Champaign apartment and issued the war-\nrant. By its terms, the warrant authorized the police to search\nfor, among other things, drugs, drug paraphernalia, and sus-\npected proceeds from drug transactions.\n\fNo. 18-1469 3\n\n The primary issue in this appeal turns on what the aﬃda-\nvit did not say. Nowhere did the aﬃdavit state that Yarber\nlived at the Champaign apartment or even that he stayed\nthere overnight. To the contrary, it referred to an altogether\ndiﬀerent apartment—located in Urbana, Illinois—as Yarber’s\n“residence.” Yarber seized on this omission and moved to\nsuppress the evidence discovered during the search of the\nChampaign apartment. He argued that, by establishing no\nnexus between the drug dealing activities and the apartment,\nthe aﬃdavit failed to establish probable cause.\n The district court thought otherwise. The court’s primary\nreason for ﬁnding probable cause was that the police con-\nnected Yarber and the white Dodge Charger to the apartment\nand saw him drive there immediately after two of the four\ncontrolled buys. The district court further observed that the\nChampaign County judge who issued the search warrant\ncould have inferred that Yarber kept evidence of his drug\ndealing in his girlfriend’s apartment to reduce the possibility\nof connecting him to illegal activity. Alternatively, the district\ncourt determined that the exception of United States v. Leon\nwould apply because the police acted in good faith when\nseeking and executing the warrant. See 468 U.S. 897, 920–22\n(1984).\n After the court denied his motion to suppress, Yarber\npleaded guilty to drug possession with the intent to distrib-\nute, 21 U.S.C. § 841(a)(1) & (b)(1)(C), and to possession of a\nﬁrearm by a felon, 18 U.S.C. § 922(g). He proceeded to trial on\nthe remaining charge of possession of a ﬁrearm in furtherance\nof a drug traﬃcking oﬀense, 18 U.S.C. § 924(c), and was con-\nvicted by a jury. The district court imposed a sentence of 420\nmonths’ imprisonment.\n\f4 No. 18-1469\n\n II\n A\n In determining the suﬃciency of a warrant aﬃdavit, we\nfocus on the totality of the information presented to the\nChampaign County judge. See United States v. Peck, 317 F.3d\n754, 756 (7th Cir. 2003). We aﬀord “great deference” to the\nprobable cause ﬁnding made by the judge who evaluated the\nwarrant application in the ﬁrst instance and will uphold that\ndetermination so long as there is a “substantial basis” for con-\ncluding “that a search would uncover evidence of wrongdo-\ning.” Illinois v. Gates, 462 U.S. 213, 236 (1983). So, too, have we\nconsistently held that “probable cause ‘does not require direct\nevidence linking a crime to a particular place.’” United States\nv. Zamudio, 909 F.3d 172, 175 (7th Cir. 2018) (quoting United\nStates v. Anderson, 450 F.3d 294, 303 (7th Cir. 2006)). Rather, a\nwarrant aﬃdavit “need only contain facts that, given the na-\nture of the evidence sought and the crime alleged, allow for a\nreasonable inference that there is a fair probability that evi-\ndence will be found in a particular place.” Id. at 176 (quoting\nUnited States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010)).\n While this case is far from open and shut, we conclude that\nthe aﬃdavit provided a suﬃcient basis for a ﬁnding of\nprobable cause to search the Champaign apartment. Yarber\nused his girlfriend’s white Dodge Charger for each of the four\ncontrolled buys. Surveillance also established that the Dodge\nCharger was parked outside the apartment on three\noccasions, and that Yarber exited the car and entered the\napartment on one of those occasions. Finally—and most\nsigniﬁcantly—Yarber drove directly to the apartment after\ntwo of the four controlled buys. This was suﬃcient to search\nthe apartment for the proceeds of those transactions. The\n\fNo. 18-1469 5\n\nChampaign County judge was entitled to draw the reasonable\ninference that an experienced drug dealer might maintain\ncash proceeds from drug sales within the apartment he visited\nimmediately after the sales—an apartment rented to his\ngirlfriend and tied to the car he used to conduct his drug\nsales—rather than on his person or in a car.\n For its part, the government urges us to rely on a line of\ncases that permit an inference that “evidence of drug dealing\nis likely to be found where the dealer lives.” United States v.\nScott, 731 F.3d 659, 665 (7th Cir. 2013) (citing United States v.\nSingleton, 125 F.3d 1097, 1102 (7th Cir. 1997)). Yarber lived at\nthe Champaign apartment, the government’s argument runs,\nand therefore it was reasonable to infer that evidence of\nYarber’s drug dealing was likely to be found there. This\nargument misﬁres on both the facts and law.\n As Yarber’s counsel rightly (and very ably) emphasizes,\nnothing within the aﬃdavit itself gave any indication that\nYarber lived in the Champaign apartment. Indeed, the\nopposite is true: the aﬃdavit expressly referred to another\nproperty, in Urbana, as “[Yarber’s] residence.” The\ngovernment’s argument—premised on Yarber’s later\nassertion that he lived at the Champaign apartment—\ndisregards the well-established tenet that “[w]here, as here,\nan aﬃdavit is all that was presented to the issuing judge, the\nwarrant's validity rests on the strength of the aﬃdavit.”\nAnderson, 450 F.3d at 302–03 (citing Peck, 317 F.3d at 755). Put\ndiﬀerently, the fact that Yarber may have lived both in an\napartment in Urbana and at other times with his girlfriend in\nher Champaign apartment was not before the Champaign\nCounty judge. On this record, then, the inference that drug\n\f6 No. 18-1469\n\ndealers keep evidence of drug dealing where they live was\nunavailable to the police.\n Instead, our conclusion that probable cause existed relies\non a combination of other facts: the search warrant expressly\nauthorized a search for the proceeds of drug sales, Yarber\nwent directly to his girlfriend’s apartment after two of the\ncontrolled buys, and additional surveillance tied Yarber to his\ngirlfriend’s apartment and car.\n In no way does this mean that any place to which a sus-\npected drug dealer travels after a drug sale is subject to a\nsearch. But there is much more here than an isolated visit to\nsome random apartment after a drug sale. Yarber used his\ngirlfriend’s vehicle to sell drugs on four separate occasions,\nand surveillance placed the vehicle at her apartment multiple\ntimes. When combined with the fact that Yarber went directly\nto the apartment after two of the controlled buys, the facts\nwere suﬃcient to support a ﬁnding of probable cause to\nsearch the apartment for drug proceeds.\n B\n In any event, the suppression of the evidence obtained\nduring the search is not warranted because Leon’s good-faith\nexception applies here. Under this exception, the fruits of a\nsearch based on an invalid warrant may be admitted if the of-\nﬁcers who executed the search relied upon the warrant in\ngood faith. See United States v. Orozco, 576 F.3d 745, 750 (7th\nCir. 2009). And an oﬃcer’s decision to obtain a warrant cre-\nates a presumption that the oﬃcer acted in good faith. See id.\n Yarber attempts to rebut this presumption by contending\nthat the oﬃcers should have known that the aﬃdavit was de-\nﬁcient because it established no connection between the\n\fNo. 18-1469 7\n\nalleged illegal conduct and the location to be searched. We\ndisagree. Although silent with respect to whether Yarber lived\n(at least some of the time) at the Champaign residence—and\nlacking in that particular respect—the aﬃdavit otherwise pre-\nsented suﬃcient facts to tie his drug-dealing activities to the\napartment. The warrant on the whole was not so deﬁcient in\nestablishing probable cause as to preclude reasonable, good-\nfaith reliance on it by the police. See Leon, 468 U.S. at 899.\n III\n We owe a ﬁnal observation in response to Yarber’s argu-\nment that his drug-traﬃcking count and felon-in-possession\ncount should have been grouped for the purposes of compu-\nting his advisory sentencing range under the Sentencing\nGuidelines. See U.S.S.G. § 3D1.2(c). He acknowledges that his\nposition is foreclosed by United States v. Sinclair, which held\nthat a drug-distribution count and a felon-in-possession count\ncannot be grouped when a conviction under 18 U.S.C. § 924(c)\nis also present, but seeks to preserve it for en banc review or\nan appeal to the Supreme Court. See 770 F.3d 1148, 1159 (7th\nCir. 2014). Yarber may consider his argument preserved.\n Accordingly, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367608/", "author_raw": "SCUDDER, Circuit Judge"}]}	MANION	BRENNAN	SCUDDER	1	{"MANION": ", Circuit", "BRENNAN": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590355/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,419		Veronica Price v. City of Chicago	2019-02-13	17-2196	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2196\nVERONICA PRICE, et al.,\n Plaintiffs-Appellants,\n v.\n\nCITY OF CHICAGO, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Northern District of Illinois, Eastern Division.\n No. 16-cv-8268 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED FEBRUARY 13, 2018 — DECIDED FEBRUARY 13, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,\nChief District Judge. ∗\n SYKES, Circuit Judge. Pro-life “sidewalk counselors” sued\nto enjoin Chicago’s “bubble zone” ordinance, which bars\nthem from approaching within eight feet of a person in the\nvicinity of an abortion clinic if their purpose is to engage in\n\n\n∗ Of the Eastern District of Wisconsin, sitting by designation.\n\f2 No. 17-2196\n\ncounseling, education, leaﬂetting, handbilling, or protest.\nThe plaintiﬀs contend that the ﬂoating bubble zone is a\nfacially unconstitutional content-based restriction on the\nfreedom of speech. The district judge dismissed the claim,\nrelying on Hill v. Colorado, 530 U.S. 703 (2000), which upheld\na nearly identical Colorado law against a similar First\nAmendment challenge.\n Abortion clinic buﬀer-zone laws “impose serious bur-\ndens” on core speech rights. McCullen v. Coakley, 134 S. Ct.\n2518, 2535 (2014). Under Hill, however, a ﬂoating bubble\nzone like this one is not considered a content-based re-\nstriction on speech and thus is not subject to strict judicial\nscrutiny. 530 U.S. at 725. Rather, the ordinance is classiﬁed as\na content-neutral “time, place, or manner” restriction and is\ntested under the intermediate standard of scrutiny, which\nasks whether the law is narrowly tailored to serve signiﬁcant\ngovernmental interests. Id. at 725–26. Hill answered that\nquestion in the aﬃrmative, holding that the governmental\ninterests at stake—preserving clinic access and protecting\npatients from unwanted speech—are signiﬁcant, and an\n8-foot no-approach zone around clinic entrances is a narrow-\nly tailored means to address those interests. Id. at 716, 725–\n30.\n Hill’s content-neutrality holding is hard to reconcile with\nboth McCullen and Reed v. Town of Gilbert, 135 S. Ct. 2218\n(2015), and its narrow-tailoring holding is in tension with\nMcCullen. Still, neither McCullen nor Reed overruled Hill, so\nit remains binding on us. Moreover, Chicago’s bubble-zone\nlaw is narrower than the one upheld in Hill: Colorado’s no-\napproach zone applies within a 100-foot radius of a clinic\nentrance; Chicago’s applies within a 50-foot radius. Lastly,\n\fNo. 17-2196 3\n\nwe would open a circuit split if we allowed this facial chal-\nlenge to move forward. The Third Circuit, applying Hill,\nupheld Pittsburgh’s 8-foot bubble zone against a facial\nchallenge without requiring an evidentiary showing from\nthe City. See Brown v. City of Pittsburgh, 586 F.3d 263, 270–73\n(3d Cir. 2009). We aﬃrm the judgment.\n I. Background\n The case comes to us from a dismissal at the pleading\nstage, so we sketch the facts as alleged in the plaintiﬀs’\ncomplaint, accepting them as true for purposes of this\nappeal. Deppe v. Nat’l Collegiate Athletic Ass’n, 893 F.3d 498,\n499 (7th Cir. 2018). Pro-life advocates Veronica Price, David\nBergquist, Ann Scheidler, and Anna Marie Scinto Mesia\nregularly engage in what’s known as “sidewalk counseling”\non the sidewalks and public ways outside Chicago abortion\nclinics. This entails peacefully approaching women entering\nthe clinics to give them pro-life literature, discuss the risks of\nand alternatives to abortion, and oﬀer support if the women\nwere to carry their pregnancies to term. These conversations\nmust take place face to face and in close proximity to permit\nthe sidewalk counselors to convey a gentle and caring\nmanner, maintain eye contact and a normal tone of voice,\nand protect the privacy of those involved.\n In October 2009 the Chicago City Council adopted an or-\ndinance that eﬀectively prohibits sidewalk counseling by\nbanning the close approach it requires. The Council amend-\ned the City’s disorderly conduct ordinance to prohibit any\nperson from approaching within eight feet of another person\nnear an abortion clinic for the purpose of engaging in the\ntypes of speech associated with sidewalk counseling. The\nordinance provides:\n\f4 No. 17-2196\n\n A person commits disorderly conduct when\n he … knowingly approaches another person\n within eight feet of such person, unless such\n other person consents, for the purpose of passing\n a leaﬂet or handbill to, displaying a sign to, or en-\n gaging in oral protest, education, or counseling\n with such other person in the public way within a\n radius of 50 feet from any entrance door to a\n hospital, medical clinic or healthcare facili-\n ty … .\nCHI., ILL., CODE § 8-4-010(j)(1) (2009) (emphasis added).\nChicago’s ordinance is nearly identical to—indeed, was\nmodeled after—the Colorado law upheld in Hill. Both laws\nimpose an 8-foot no-approach bubble zone, but Chicago’s\nlaw operates within a smaller radius. Colorado’s 8-foot\nbubble zone applies within a 100-foot radius of an abortion-\nclinic entrance. Chicago’s applies within a 50-foot radius.\nThe City’s ordinance otherwise mirrors the law at issue in\nHill.\n In August 2016 the four sidewalk counselors and two ad-\nvocacy groups joined together to sue the City under\n42 U.S.C. § 1983 seeking declaratory and injunctive relief\nagainst the enforcement of the bubble-zone ordinance. Their\ncomplaint raised four claims: (1) the ordinance infringes the\nfreedom of speech guaranteed by the First Amendment, both\nfacially and as applied; (2) the ordinance is unconstitutional-\nly vague in violation of the Due Process Clause of the\nFourteenth Amendment; (3) the City selectively enforces the\nbubble-zone ordinance in violation of the Equal Protection\nClause of the Fourteenth Amendment; and (4) the ordinance\ninfringes the plaintiﬀs’ state constitutional right to freedom\n\fNo. 17-2196 5\n\nof speech and assembly. Much of the complaint describes\nspeciﬁc instances of selective or improper enforcement from\nearly 2010 through mid-2016, but those allegations have no\nbearing on this appeal.\n The City moved to dismiss the complaint for failure to\nstate a claim. See FED. R. CIV. P. 12(b)(6). The district judge\ngranted the motion in part. She ruled that Hill forecloses the\nfacial First Amendment challenge and the due-process\nvagueness claim. But she allowed the case to proceed on the\nas-applied First Amendment challenge, the equal-protection\nclaim alleging selective enforcement, and the state constitu-\ntional claims. The parties eventually settled these remaining\nclaims and jointly moved to dismiss them. The judge entered\nﬁnal judgment, setting up this appeal contesting only the\nRule 12(b)(6) ruling.\n II. Discussion\n We review a Rule 12(b)(6) dismissal de novo. O’Boyle v.\nReal Time Resolutions, Inc., 910 F.3d 338, 342 (7th Cir. 2018).\nThe plaintiﬀs contend that Chicago’s bubble-zone ordinance\nis a content-based restriction on speech and is facially un-\nconstitutional under strict scrutiny. Their fallback position is\nthat the ordinance ﬂunks the narrow-tailoring requirement\nof the intermediate test for content-neutral restrictions on\nspeech.\n The Supreme Court considered and rejected these precise\narguments in Hill, as the plaintiﬀs must and do\nacknowledge. As they see it, however, Hill is no longer an\ninsuperable barrier to suits challenging abortion clinic\nbubble-zone laws. The premise of their claim is that the\nCourt’s more recent decisions in Reed and McCullen have so\n\f6 No. 17-2196\n\nthoroughly undermined Hill’s reasoning that we need not\nfollow it.\n That’s a losing argument in the court of appeals. The\nCourt’s intervening decisions have eroded Hill’s foundation,\nbut the case still binds us; only the Supreme Court can say\notherwise. See State Oil Co. v. Kahn, 522 U.S. 3, 20 (1997) (“[I]t\nis this Court’s prerogative alone to overrule one of its prece-\ndents.”). The Court’s instructions in this situation are clear:\n“If a precedent of this Court has direct application in a case,\nyet appears to rest on reasons rejected in some other line of\ndecisions, the Court of Appeals should follow the case [that]\ndirectly controls, leaving to this Court the prerogative of\noverruling its own decisions.” Agostini v. Felton, 521 U.S. 203,\n237–38 (1997) (quotation marks omitted).\n That said, in the nineteen years since Hill was decided,\nthe Court has reﬁned the concept of content neutrality and\nclariﬁed the requirement of narrow tailoring in a First\nAmendment challenge of this type. To see how, it’s helpful\nto trace the doctrinal development in this speciﬁc corner of\nfree-speech law.\nA. Speech in a Traditional Public Forum\n We begin with ﬁrst principles. “The First Amendment\nreﬂects a profound national commitment to the principle\nthat debate on public issues should be uninhibited, robust,\nand wide-open.” Snyder v. Phelps, 562 U.S. 443, 452 (2011)\n(quotation marks omitted). “Leaﬂetting and commenting on\nmatters of public concern are classic forms of speech that lie\nat the heart of the First Amendment … .” Schenck v.\nPro-Choice Network of W. N.Y., 519 U.S. 357, 377 (1997). More-\nover, sidewalks and other public ways “occupy a special\n\fNo. 17-2196 7\n\nposition in terms of First Amendment protection because of\ntheir historic role as sites for discussion and debate.”\nMcCullen, 134 S. Ct. at 2529 (quotation marks omitted). These\npublic spaces—“traditional public fora” in the doctrinal\nnomenclature—“have immemorially been held in trust for\nthe use of the public and, time out of mind, have been used\nfor purposes of assembly, communicating thoughts between\ncitizens, and discussing public questions.” Hague v. Comm.\nfor Indus. Org., 307 U.S. 496, 515 (1939).\n As the Court explained in McCullen:\n It is no accident that public streets and side-\n walks have developed as venues for the ex-\n change of ideas. Even today, they remain one\n of the few places where a speaker can be conﬁ-\n dent that he is not simply preaching to the\n choir. With respect to other means of commu-\n nication, an individual confronted with an un-\n comfortable message can always turn the page,\n change the channel, or leave the Web site. Not\n so on public streets and sidewalks. There, a lis-\n tener often encounters speech he might other-\n wise tune out. In light of the First\n Amendment’s purpose to preserve an uninhib-\n ited marketplace of ideas in which truth will\n ultimately prevail, this aspect of traditional\n public fora is a virtue, not a vice.\n134 S. Ct. at 2529 (citation and quotation marks omitted).\nThus, speech “is at its most protected on public sidewalks.”\nSchenck, 519 U.S. at 377.\n\f8 No. 17-2196\n\n That the sidewalk counselors seek to reach women as\nthey enter an abortion clinic—at the last possible moment\nwhen their speech might be eﬀective—“only strengthens the\nprotection aﬀorded [their] expression.” McIntyre v. Ohio\nElections Comm'n, 514 U.S. 334, 347 (1995). “Urgent, im-\nportant, and eﬀective speech can be no less protected than\nimpotent speech, lest the right to speak be relegated to those\ninstances when it is least needed. No form of speech is\nentitled to greater constitutional protection … .” Id. (citation\nomitted). And direct “one-on-one communication” has long\nbeen recognized as “the most eﬀective, fundamental, and\nperhaps economical avenue of political discourse.”\nMcCullen, 134 S. Ct. at 2536 (quotation marks omitted).\n * * *\n It is a “guiding First Amendment principle that the gov-\nernment has no power to restrict expression because of its\nmessage, its ideas, its subject matter, or its content,” and this\nprinciple “applies with full force in a traditional public\nforum.” Id. at 2529 (quotation marks omitted). “Content-\nbased laws—those that target speech based on its communi-\ncative content—are presumptively unconstitutional” and get\nstrict judicial scrutiny; laws of this type “may be justiﬁed\nonly if the government proves that they are narrowly tai-\nlored to serve compelling state interests.” Reed, 135 S. Ct. at\n2226.\n On the other hand, the government has “somewhat wid-\ner leeway to regulate features of speech unrelated to its\ncontent.” McCullen, 134 S. Ct. at 2529. “[E]ven in a public\nforum the government may impose reasonable restrictions\non the time, place, or manner of protected speech, provided\nthe restrictions are justiﬁed without reference to the content\n\fNo. 17-2196 9\n\nof the regulated speech, that they are narrowly tailored to\nserve a signiﬁcant governmental interest, and that they leave\nopen ample alternative channels for communication of the\ninformation.” Ward v. Rock Against Racism, 491 U.S. 781, 791\n(1989) (quotation marks omitted).\n To date, the Supreme Court has applied the intermediate\nstandard of scrutiny to abortion-clinic buﬀer zones, with\nmixed results. We now turn to those cases.\nB. The Abortion Clinic Buﬀer-Zone Cases\n 1. Madsen v. Women’s Health Center and\n Schenck v. Pro-Choice Network of Western New York\n The Court’s ﬁrst two occasions to address abortion-clinic\nbuﬀer zones came in cases involving injunctions entered by\nstate and federal courts to address unlawful conduct associ-\nated with the large-scale clinic blockades of the early 1990s\nfor which ordinary law-enforcement responses had proven\nineﬀective. Schenck, 519 U.S. at 362–63 (describing the clinic\nblockades); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753,\n758–59 (1994) (same).\n In Madsen the Court reviewed a state-court injunction\nbarring the named defendants from entering a 36-foot buﬀer\nzone around a particular clinic. 512 U.S. at 760. As relevant\nhere, the injunction also established a 300-foot zone around\nthe clinic within which the defendants were prohibited from\n“physically approaching any person seeking the services of\nthe [c]linic” without that person’s consent. Id. The Court ﬁrst\nruled that these restrictions were content neutral and did not\nrequire strict scrutiny. Id. at 762–64. However, the Court\napplied a “more stringent” form of intermediate scrutiny\nbecause injunctions “carry greater risks of censorship and\n\f10 No. 17-2196\n\ndiscriminatory application than do general ordinances.” Id.\nat 764–65. This yielded a split result: The Court upheld the\nﬁxed 36-foot buﬀer zone but invalidated the ﬂoating “no\napproach” zone. Id. at 768–70, 773–74.\n In Schenck the Court applied Madsen and upheld a provi-\nsion in a federal-court injunction prohibiting the named\ndefendants from entering a ﬁxed 15-foot buﬀer zone around\nthe doorways, driveways, and parking lots of certain abor-\ntion clinics. 519 U.S. at 380–83. But the Court invalidated a\nprovision barring the defendants from approaching within\n15 feet of any person entering or leaving the clinics. Id. at\n377–79. The Court held that the 15-foot ﬂoating bubble zone\nwas unconstitutional because it prevented the defendants\n“from communicating a message from a normal conversa-\ntional distance or handing leaﬂets to people entering or\nleaving the clinics who [were] walking on the public side-\nwalks.” Id. at 377.\n The Court’s reasoning rested primarily on the venerable\nprinciple that leaﬂetting on public sidewalks is core protect-\ned speech. “Leaﬂetting and commenting on matters of public\nconcern are classic forms of speech that lie at the heart of the\nFirst Amendment, and speech in public areas is at its most\nprotected on public sidewalks, a prototypical example of a\ntraditional public forum.” Id. But the Court was also con-\ncerned that the ﬂoating bubble zone was not narrowly\ntailored: “With clinic escorts leaving the clinic to pick up\nincoming patients and entering the clinic to drop them oﬀ, it\nwould be quite diﬃcult for a protester who wishes to engage\nin peaceful expressive activity to know how to remain in\ncompliance with the injunction,” resulting in “substantial\nrisk that much more speech will be burdened than the\n\fNo. 17-2196 11\n\ninjunction by its terms prohibits.” Id. at 378. The Court\nreserved the question “whether the governmental interests\ninvolved would ever justify some sort of zone of separation\nbetween individuals entering the clinics and protesters,\nmeasured by the distance between the two.” Id. at 377 (em-\nphasis added).\n 2. Hill v. Colorado\n The Court returned to this subject in Hill, this time re-\nviewing a generally applicable law rather than a targeted\ninjunction. As we’ve noted, Chicago’s bubble ordinance is\nidentical to the Colorado law at issue in Hill except for the\nradius within which the no-approach zone applies. Because\nHill is decisive here, the decision merits close review.\n The Court began with the question of content neutrality,\nobserving that the 8-foot bubble zone “is not a regulation of\nspeech” but instead is simply “a regulation of the places\nwhere some speech may occur.” Hill, 530 U.S. at 719. And\nthe Colorado law, the Court said, was not content based\nbecause it “was not adopted because of disagreement with\nthe message the speech conveys” but rather to ensure clinic\naccess, protect patient privacy, and “provid[e] the police\nwith clear guidelines.” Id. at 719–20 (quotation marks and\nalteration omitted).\n The challengers argued that the law was content based\nbecause enforcement authorities would have to examine the\ncontent of the statements made by an approaching speaker\nto determine if a violation of the statute occurred. Id. at 720.\nThe Court disagreed, saying that the law “places no re-\nstriction on—and clearly does not prohibit—either a particu-\nlar viewpoint or any subject matter that may be discussed by\n\f12 No. 17-2196\n\na speaker. Rather, it simply establishes a minor place re-\nstriction on an extremely broad category of communications\nwith unwilling listeners.” Id. at 723. The Court added: “[W]e\nhave never suggested that the kind of cursory examination\nthat might be required to exclude casual conversation …\nwould be problematic.” Id. at 722. On these understandings,\nthe Court ruled that the bubble-zone law was properly\nclassiﬁed as a content-neutral time, place, or manner regula-\ntion of speech and did not require strict scrutiny. Id. at 725.\n Applying intermediate scrutiny, the Court held that\nColorado’s objectives—preserving clinic access and protect-\ning patients from unwelcome speech—count as signiﬁcant\ngovernmental interests, and an 8-foot ﬂoating bubble zone\nwithin 100 feet of a clinic entrance is a narrowly tailored\nmeans to serve them. Id. at 726–30. The Court distinguished\nthe Colorado law from the no-approach zone it had invali-\ndated just three years earlier: “Unlike the 15-foot zone in\nSchenck, this 8-foot zone allows the speaker to communicate\nat a ‘normal conversational distance.’” Id. at 726–27 (quoting\nSchenck, 519 U.S. at 377)). The Court acknowledged that the\n“burden on the ability to distribute handbills is more seri-\nous,” but that diﬃculty did not doom the Colorado law. Id.\nat 727. The 8-foot buﬀer zone, the Court said, did not “pre-\nvent a leaﬂetter from simply standing near the path of\noncoming pedestrians and proﬀering his or her material,\nwhich the pedestrians [could] easily accept.” Id.\n Rounding out its narrow-tailoring analysis, the Court re-\njected the argument that Colorado could achieve its objec-\ntives through less restrictive means—say by enforcing its\npreexisting laws against harassment, disorderly conduct,\nand battery, as Justice Kennedy posited in dissent. Id. at 729;\n\fNo. 17-2196 13\n\nid. at 777–78 (Kennedy, J., dissenting). As the Court put it,\nthe statute’s “prophylactic aspect” was justiﬁed based on the\n“great diﬃculty” of protecting abortion clinics and their\npatients via “legal rules that focus exclusively on the indi-\nvidual impact of each instance of behavior.” Id. at 729.\n 3. McCullen v. Coakley\n Hill was decided in 2000. No new buﬀer-zone case\nreached the Court until McCullen in 2014. At issue was a\nMassachusetts law imposing a ﬁxed 35-foot buﬀer zone\naround the entrance, exit, and driveway of every abortion\nclinic in the state. McCullen, 134 S. Ct. at 2526. Certain per-\nsons were exempt and could freely enter the zone: those\nentering or leaving the clinic; employees or agents of the\nclinic; law enforcement, ﬁreﬁghters, construction and utility\nworkers, and other municipal agents; and persons using the\nsidewalk or public way to reach a destination other than the\nclinic. Everyone else was kept out on pain of criminal penal-\nty. Id.\n As here, pro-life sidewalk counselors challenged the law.\nId. at 2527. They argued that the buﬀer-zone law was a\ncontent-based restriction on speech and required strict\nscrutiny. The Court disagreed. First, the Court noted that\n“the Act does not draw content-based distinctions on its\nface.” Id. at 2531. To be sure, the Court explained, the\nMassachusetts law “would be content based if it required\nenforcement authorities to examine the content of the mes-\nsage that is conveyed to determine whether a violation has\noccurred.” Id. (quotation marks omitted). But enforcement of\nthe law turned not on what people said while in the buﬀer\nzone “but simply on where they sa[id] it.” Id. “Indeed,” the\nCourt said, “[a person could] violate the Act merely by\n\f14 No. 17-2196\n\nstanding in a buﬀer zone, without displaying a sign or\nuttering a word.” Id.\n The Court continued:\n To be clear, the Act would not be content neu-\n tral if it were concerned with [the] undesirable\n eﬀects that arise from the direct impact of\n speech on its audience or listeners’ reactions to\n speech. … If, for example, the speech outside\n Massachusetts abortion clinics caused oﬀense\n or made listeners uncomfortable, such oﬀense\n or discomfort would not give the Common-\n wealth a content-neutral justiﬁcation to restrict\n the speech.\nId. at 2531–32 (citation, quotation marks, and alteration\nomitted). In the end the Court concluded that the justiﬁca-\ntions for the law—“ensuring safety and preventing obstruc-\ntion” at clinic entrances—“are, as a general matter, content\nneutral.” Id. at 2532.\n But the Massachusetts buﬀer-zone law did not survive\nintermediate scrutiny. Citing Schenck and Madsen (but not\nHill), the Court held that the Commonwealth’s safety and\naccess objectives were suﬃciently weighty under the inter-\nmediate standard of review. Id. at 2535. “At the same time,”\nhowever, “the buﬀer zones impose serious burdens on [the\nsidewalk counselors’] speech.” Id. Relying again on Schenck,\nthe Court observed that the ﬁxed 35-foot buﬀer zone made it\n“substantially more diﬃcult” for sidewalk counselors to\n“distribute literature to arriving patients” and to engage in\nthe kind of personal and compassionate conversations\nrequired for their messages to be heard. Id. at 2536.\n\fNo. 17-2196 15\n\n Amplifying the theory behind the intermediate standard\nof scrutiny, the Court signiﬁcantly clariﬁed the role of the\nnarrow-tailoring requirement:\n The tailoring requirement does not simply\n guard against an impermissible desire to cen-\n sor. The government may attempt to suppress\n speech not only because it disagrees with the\n message being expressed, but also for mere\n convenience. Where certain speech is associat-\n ed with particular problems, silencing the\n speech is sometimes the path of least re-\n sistance. But by demanding a close ﬁt between\n ends and means, the tailoring requirement\n prevents the government from too readily sac-\n riﬁcing speech for eﬃciency.\nId. at 2534 (quotation marks and alteration omitted). In other\nwords, “[f]or a content-neutral time, place, or manner\nregulation to be narrowly tailored, it must not ‘burden\nsubstantially more speech than is necessary to further the\ngovernment’s legitimate interests.’” Id. at 2535 (quoting\nWard, 491 U.S. at 799). Put in more positive terms, “[t]o meet\nthe requirement of narrow tailoring, the government must\ndemonstrate that alternative measures that burden substan-\ntially less speech would fail to achieve [its] interests, not\nsimply that the chosen route is easier.” Id. at 2540.\n Against these background principles of narrow tailoring,\nthe 35-foot ﬁxed buﬀer zone ﬂunked the test. “A painted line\non the sidewalk is easy to enforce, but the prime objective of\nthe First Amendment is not eﬃciency.” Id. Massachusetts\nhad less restrictive regulatory options to ensure access to\nabortion clinics and prevent harassment of patients: existing\n\f16 No. 17-2196\n\nstate and local laws banning obstruction of clinic entrances;\n“generic criminal statutes forbidding assault, breach of the\npeace, trespass, vandalism, and the like”; and targeted\ninjunctions like those in Schenck and Madsen. Id. at 2538. But\nthe Commonwealth had not shown that “it seriously under-\ntook to address the problem with less intrusive tools readily\navailable to it.” Id. at 2539.\n “Given the vital First Amendment interests at stake, it is\nnot enough for Massachusetts simply to say that other\napproaches have not worked.” Id. at 2540. The Court con-\ncluded that “[t]he buﬀer zones burden substantially more\nspeech than necessary to achieve the Commonwealth’s\nasserted interests.” Id. at 2537.\n The Court closed with this:\n [The sidewalk counselors] wish to converse\n with their fellow citizens about an important\n subject on the public streets and sidewalks—\n sites that have hosted discussions about the is-\n sues of the day throughout history. [Massachu-\n setts] assert[s] undeniably signiﬁcant interests\n in maintaining public safety on those same\n streets and sidewalks, as well as in preserving\n access to adjacent healthcare facilities. But here\n the Commonwealth has pursued those inter-\n ests by the extreme step of closing a substantial\n portion of a traditional public forum to all\n speakers. It has done so without seriously ad-\n dressing the problem through alternatives that\n leave the forum open for its time-honored pur-\n poses. The Commonwealth may not do that\n consistent with the First Amendment.\n\fNo. 17-2196 17\n\nId. at 2541.\n 4. Reed v. Town of Gilbert\n One more case is important to the current doctrinal land-\nscape, though it did not involve an abortion-clinic buﬀer\nzone. Reed was a First Amendment challenge to the Sign\nCode in the Town of Gilbert, Arizona, which classiﬁed signs\nby the type of information they conveyed and regulated each\ncategory diﬀerently. 135 S. Ct. at 2224–25. For example,\n“Ideological Signs”—deﬁned as any sign “communicating a\nmessage or idea[] for noncommercial purposes” other than\nconstruction signs, directional signs, and certain other\ncategories—were treated most favorably. Id. at 2224. “Politi-\ncal Signs”—any “temporary sign designed to inﬂuence the\noutcome of an election”—were treated less favorably than\nIdeological Signs. Id. “Temporary Directional Signs” were\nregulated most heavily. Id. at 2225.\n The Court began with an important clariﬁcation of the\ncontent-neutrality inquiry. First, a “regulation of speech is\ncontent based if a law applies to particular speech because of\nthe topic discussed or the idea or message conveyed.” Id. at\n2227. The Court explained that the threshold question in the\ntest for content neutrality is whether the challenged regula-\ntion “on its face draws distinctions based on the message a\nspeaker conveys.” Id. (quotation marks omitted). The Court\ncontinued: “Some facial distinctions based on a message are\nobvious, deﬁning regulated speech by particular subject\nmatter, and others are more subtle, deﬁning regulated\nspeech by its function or purpose. Both are distinctions\ndrawn based on the message a speaker conveys” and require\nstrict scrutiny. Id.\n\f18 No. 17-2196\n\n The Court then identiﬁed a “separate and additional cat-\negory of laws that, though facially content neutral, will be\nconsidered content-based regulations of speech: laws that\ncannot be justiﬁed without reference to the content of the\nregulated speech[] or … were adopted by the government\nbecause of disagreement with the message the speech con-\nveys.” Id. (emphasis added) (quotation marks and alteration\nomitted). Laws of this type also get strict judicial scrutiny. Id.\nat 2227.\n On this illumination of the concept of content neutrality,\nthe Court ruled that the Town’s Sign Code “is content based\non its face.” Id. The Town’s regulatory requirements for “any\ngiven sign … depend entirely on the communicative content\nof the sign.” Id. As the Court put it:\n If a sign informs its reader of the time and\n place a book club will discuss John Locke’s\n Two Treatises of Government, that sign will be\n treated diﬀerently from a sign expressing the\n view that one should vote for one of Locke’s\n followers in an upcoming election, and both\n signs will be treated diﬀerently from a sign ex-\n pressing an ideological view rooted in Locke’s\n theory of government.\nId.\n The Town insisted that strict scrutiny did not apply be-\ncause it had not discriminated between particular ideas or\nviewpoints within each sign category. The Court resound-\ningly rejected that position: “A law that is content based on\nits face is subject to strict scrutiny regardless of the govern-\nment’s benign motive, content-neutral justiﬁcation, or lack of\n\fNo. 17-2196 19\n\nanimus toward the ideas contained in the regulated speech.”\nId. at 2228 (quotation marks omitted). Put somewhat more\ndirectly: “[A] speech regulation targeted at speciﬁc subject\nmatter is content based even if it does not discriminate\namong viewpoints within that subject matter.” Id. at 2230.\n The Town could not defend its Sign Code under strict\nscrutiny. The Court assumed for the sake of argument that\nthe Town’s objectives—aesthetics and traﬃc safety—were\ncompelling enough to satisfy this most exacting standard of\nreview. Id. at 2231. But the Code’s content-based distinctions\nwere “hopelessly underinclusive.” Id. The Town could not\nexplain how its interests in beautiﬁcation and safety were\nfurthered by strictly limiting temporary directional signs but\nallowing other types of signs to proliferate. Id. “In light of\nthis underinclusiveness,” the Court held, “the Town has not\nmet its burden to prove that its Sign Code is narrowly\ntailored to further a compelling governmental interest.” Id.\nat 2232.\nC. Hill After Reed and McCullen\n Hill is incompatible with current First Amendment doc-\ntrine as explained in Reed and McCullen. To begin, Hill\nstarted from the premise that “[t]he principal inquiry in\ndetermining content neutrality … is whether the govern-\nment has adopted a regulation of speech because of disa-\ngreement with the message it conveys.” 530 U.S. at 719\n(quoting Ward, 491 U.S. at 791). After Reed that’s no longer\ncorrect. We now know that the ﬁrst step in the content-\nneutrality inquiry is to ask whether the challenged law is\n“content based on its face.” Reed, 135 S. Ct. at 2228.\n\f20 No. 17-2196\n\n As Reed explained, a “separate and additional category” of\ncontent-based laws includes facially neutral laws that “can-\nnot be justiﬁed without reference to the content of the regu-\nlated speech[] or … were adopted because of disagreement\nwith the message the speech conveys.” Id. at 2227 (emphases\nadded) (quotation marks and alteration omitted). But “an\ninnocuous justiﬁcation cannot transform a facially content-\nbased law into one that is content neutral.” Id. at 2228.\n“Because strict scrutiny applies either when a law is content\nbased on its face or when the purpose and justiﬁcation for\nthe law are content based, a court must evaluate each ques-\ntion before it concludes that the law is content neutral and\nthus subject to a lower level of scrutiny.” Id. (emphases\nadded).\n In fairness, Hill did not completely ignore the actual text\nof the Colorado statute. Though not clearly delineated, its\nfacial analysis was twofold. The Court ﬁrst concluded that\nColorado’s bubble-zone law was content neutral because it\ndidn’t restrict “either a particular viewpoint or any subject\nmatter that may be discussed by a speaker.” Hill, 530 U.S. at\n723. In other words, the absence of viewpoint or subject-\nmatter discrimination was a suﬃcient indicator of content\nneutrality. Second, the Court dismissed the fact that en-\nforcement authorities had to examine the content of an\napproaching speaker’s statements to determine if a violation\nof the law had occurred: “We have never held, or suggested,\nthat it is improper to look at the content of an oral or written\nstatement in order to determine whether a rule of law ap-\nplies to a course of conduct.” Id. at 721.\n Neither rationale survives McCullen and Reed. McCullen\nexplained in no uncertain terms that a law is indeed content\n\fNo. 17-2196 21\n\nbased if enforcement authorities must “examine the content\nof the message that is conveyed to determine whether a\nviolation has occurred.” 134 S. Ct. at 2531 (quotation marks\nomitted). And Reed clariﬁed that the lack of viewpoint or\nsubject-matter discrimination does not spare a facially\ncontent-based law from strict scrutiny. 135 S. Ct. at 2230. As\nwe explained shortly after Reed was decided, the Court has\n“eﬀectively abolishe[d] any distinction between content\nregulation and subject-matter regulation. Any law distin-\nguishing one kind of speech from another by reference to its\nmeaning now requires a compelling justiﬁcation.” Norton v.\nCity of Springﬁeld, 806 F.3d 411, 412 (7th Cir. 2015). In the\nwake of McCullen and Reed, it’s not too strong to say that\nwhat Hill explicitly rejected is now prevailing law.\n There is more. Reed explained that a law is content based\nif it draws “more subtle” facial distinctions like those that\n“deﬁn[e] regulated speech by its function or purpose.” 135 S.\nCt. at 2227. By its terms, the law upheld in Hill regulates\nspeech undertaken “for the purpose of … engaging in oral\nprotest, education, or counseling.” 530 U.S. at 707 (emphasis\nadded) (quotation marks omitted). And divining purpose\nclearly requires enforcement authorities “to examine the\ncontent of the message that is conveyed.” McCullen, 134 S.\nCt. at 2531 (quotation marks omitted). How else could the\nauthorities distinguish between a sidewalk counselor (ille-\ngal) and a panhandler, a pollster, or a passerby who asks for\nthe time (all legal)?\n Here’s another incongruity between Hill and the Court’s\ncurrent jurisprudence. McCullen emphasized that a law is\ncontent based if it is “concerned with [the] undesirable\neﬀects that arise from the direct impact of speech on its\n\f22 No. 17-2196\n\naudience or listeners’ reactions to speech.” 134 S. Ct. at 2531–\n32 (quotation marks and alteration omitted). Yet Hill repeat-\nedly cited concern for listeners’ reactions as an acceptable\njustiﬁcation for Colorado’s bubble-zone law. True, the Court\nalso mentioned concerns about clinic access and safety, but\nthat does not diminish its emphasis on Colorado’s interest in\n“protect[ing] listeners from unwanted communication” and\nsafeguarding the right “to be let alone.” 530 U.S. at 715–16,\n724 (quotation marks omitted). Indeed, the Court highlight-\ned the “emotional harm suﬀered when an unwelcome\nindividual delivers a message … at close range.” Id. at 718\nn.25. The bubble-zone law upheld in Hill was aimed in\nsubstantial part at guarding against the undesirable eﬀects\nof the regulated speech on listeners. After McCullen that’s\nnot a content-neutral justiﬁcation.\n Finally, Hill’s narrow-tailoring analysis conﬂicts with\nMcCullen’s insistence that “the government must demon-\nstrate that alternative measures that burden substantially\nless speech would fail to achieve [its] interests, not simply\nthat the chosen route is easier.” 134 S. Ct. at 2540. Recall\nMcCullen’s exhortation against the use of broad prophylactic\nregulations in speech-sensitive zones: “A painted line on the\nsidewalk is easy to enforce, but the prime objective of the\nFirst Amendment is not eﬃciency. … Given the vital First\nAmendment interests at stake, it is not enough for\nMassachusetts simply to say that other approaches have not\nworked.” Id. In stark contrast, Hill speciﬁcally approved the\n“bright-line prophylactic” aspect of Colorado’s bubble-zone\nlaw precisely because other less restrictive measures—e.g.,\nlaws against harassment and breach of the peace—were\nharder to enforce. 530 U.S. at 729.\n\fNo. 17-2196 23\n\n In short, McCullen and Reed have deeply shaken Hill’s\nfoundation. Yet the case remains on the books and directly\ncontrols here. The plaintiﬀs urge us to follow the Third\nCircuit’s lead in Bruni v. City of Pittsburgh, which reversed\nthe dismissal of a challenge to Pittsburgh’s ﬁxed 15-foot\nclinic buﬀer zone and remanded for a case-speciﬁc narrow-\ntailoring analysis in light of McCullen. 824 F.3d 353, 372–73\n(3d Cir. 2016). The court held that dismissal at the pleading\nstage was improper based on McCullen’s “important clariﬁ-\ncation of the rigorous and fact-intensive nature of intermedi-\nate scrutiny’s narrow-tailoring analysis.” Id. at 372. This was\nso, the court held, notwithstanding circuit precedent that\nupheld Pittsburgh’s 15-foot buﬀer zone just a few years\nearlier. Id. at 367–73 (distinguishing Brown v. City of\nPittsburgh, 586 F.3d 263 (3d Cir. 2009)).\n We do not regard Bruni’s approach as a viable option\nhere. As we’ve noted, Chicago’s bubble-zone ordinance is a\ncarbon copy of the Colorado law upheld in Hill except for\nthe smaller radius within which it applies. And Hill’s\nnarrow-tailoring analysis was highly generalized; it did not\nrest on the speciﬁc facts of the case or an evaluation of\nColorado’s evidentiary showing. Accordingly, a remand for\na case-speciﬁc narrow-tailoring analysis would eﬀectively\ndeny Hill’s controlling force.\n It would also create a circuit split. In Brown, the prede-\ncessor case to Bruni, the Third Circuit upheld a separate\nprovision in Pittsburgh’s abortion-clinic law establishing an\n8-foot no-approach bubble zone within a 100-foot radius of\nclinic entrances—“a virtually verbatim copy of the Hill\nstatute”—without requiring a factual showing from the City.\n586 F.3d at 273. Bruni left that part of Brown untouched.\n\f24 No. 17-2196\n\n Hill directly controls, notwithstanding its inconsistency\nwith McCullen and Reed. Only the Supreme Court can bring\nharmony to these precedents. The district judge correctly\ndismissed the facial First Amendment challenge.\nD. Due-Process Vagueness Claim\n In a cursory ﬁnal argument, the plaintiﬀs maintain that\nChicago’s bubble-zone ordinance is unconstitutionally\nvague. This argument too is foreclosed by Hill, which reject-\ned a vagueness challenge to Colorado’s bubble-zone law.\n530 U.S. at 732–33. The plaintiﬀs rely on Justice Kennedy’s\ndissenting position: “In the context of a law imposing crimi-\nnal penalties for pure speech, ‘protest’ is an imprecise word;\n‘counseling’ is an imprecise word; ‘education’ is an impre-\ncise word.” Id. at 773 (Kennedy, J., dissenting). Perhaps he\nwas right, but his view did not carry the day. The judge\nproperly dismissed the due-process vagueness claim.\n III. Conclusion\n The road the plaintiﬀs urge is not open to us in our hier-\narchical system. Chicago’s bubble-zone ordinance is materi-\nally identical to—indeed, is narrower than—the law upheld\nin Hill. While the Supreme Court has deeply unsettled Hill, it\nhas not overruled the decision. So it remains binding on us.\nThe plaintiﬀs must seek relief in the High Court.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367672/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT	GRIESBACH	1	{"SYKES": ", Circuit", "BARRETT": ", Circuit", "GRIESBACH": ", Chief District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590419/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,420		Kurt Cornielsen v. Infinium Capital Management	2019-02-13	17-2583	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.", "parties": "", "opinions": [{"author": "Chief District Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐2583 \nKURT V. CORNIELSEN, et al., \n Plaintiffs‐Appellants, \n \n\n v. \n\nINFINIUM CAPITAL \nMANAGEMENT, LLC, et al., \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 14‐cv‐00098 — Andrea R. Wood, Judge. \n ____________________ \n\n ARGUED FEBRUARY 13, 2018 — DECIDED FEBRUARY 13, 2019 \n ____________________ \n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, \nChief District Judge.* \n\n\n\n\n \n * Of the Eastern District of Wisconsin, sitting by designation. \n\f2 No. 17‐2583 \n\n GRIESBACH, District Judge. Plaintiffs‐appellants, 39 former \nemployees of Infinium Capital Management, LLC, voluntar‐\nily converted loans they had made to their employer under \nthe company’s Employee Capital Pool program into equity in \nthe company. A year later their redemption rights were sus‐\npended, and six months after that, they were told their invest‐\nments were worthless. Plaintiffs filed suit against their em‐\nployer, the holding company that owned their employer, and \nseveral members of the senior management, asserting claims \nfor federal securities fraud and state law claims for breach of \nfiduciary duty and fraud. This appeal is from the district \ncourt’s order dismissing with prejudice their fifth amended \ncomplaint for failure to state a claim. For the reasons that fol‐\nlow, we affirm. \n I. Background \n Infinium is a diversified alternative asset and risk manage‐\nment firm with offices in Chicago, Houston, New York, and \nLondon. It trades exchange‐traded and centrally cleared fi‐\nnancial instruments offering fundamental arbitrage strate‐\ngies. Infinium Capital Holdings is a holding company that \nowned Infinium. To simplify and for clarity, we refer to both \nas Infinium. \n Prior to 2012, Infinium created the Employee Capital Pool, \nthrough which Plaintiffs collectively loaned the company just \nover $5 million. After a profitable year in 2011, Infinium in‐\nvited capital pool participants to convert their loans into eq‐\nuity as Class B‐2 shareholders in Infinium through an “Equity \nConversion” program. Capital pool participants received no‐\ntice of the Equity Conversion opportunity by e‐mail on Feb‐\nruary 14, 2012. Members of Infinium’s senior management—\nCharles Whitman, Gregory Eickbush, Brian Johnson, and \n\fNo. 17‐2583 3 \n\nScott Rose (collectively, the Individual Defendants)—subse‐\nquently conducted three “town hall” meetings about the pro‐\nposal. Those meetings occurred on February 16, 17, and 22, \n2012, and each Plaintiff attended at least one meeting. \n Plaintiffs claim that the Individual Defendants made sev‐\neral misrepresentations and omissions at the three town hall \nmeetings that induced them to participate in the Equity Con‐\nversion. Plaintiffs allege the Individual Defendants stated \nthere would be a single class of equity in Infinium and that all \ncurrent and future equity holders would receive equal treat‐\nment; whereas in fact, Infinium was seeking the infusion of \nnew funds from third‐party investors and offered those inves‐\ntors superior rights to all other equity holders in Infinium and \nguaranteed the equity of those investors from certain losses. \nPlaintiffs also allege the Individual Defendants stated that In‐\nfinium had access to an untapped $20 million line of credit \nthat it could use to pay down debt owed to George Hanley \nand Nathan Laurell, two members of Infinium’s advisory \nboard who were in the process of redeeming their equity in \nInfinium. Finally, the Individual Defendants allegedly also \ntold meeting attendees that those who participated in the Eq‐\nuity Conversion would receive two free months of profit for \nJanuary and February 2012, when in fact, Infinium had lost \n$4.3 million during that period and there was no profit for \nthose months as a result. In addition, in the course of soliciting \nthe conversion of their loans to equity, Infinium wrote to \nPlaintiffs and explained that Plaintiffs would be able to re‐\ndeem 50% any monies converted from debt to equity or oth‐\nerwise invested by Plaintiffs in the first year (2013) and 50% \nin the following year (2014), with the ability to withdraw all \nof their equity investments in just two years. \n\f4 No. 17‐2583 \n\n Participants in the capital pool also received a Private \nPlacement Memorandum (PPM) on February 14, 2012, detail‐\ning the risks of the Equity Conversion. The PPM made exten‐\nsive disclosures about the risks to Plaintiffs’ investments and \nthe nature of the interests in Infinium they would obtain if \nthey chose to participate in the Equity Conversion. It dis‐\nclosed that Equity Conversion participants would “not have \nvoting rights,” meaning their interests would not permit them \n“to elect or remove members of the Board” and they would \nnot “have any ability to affect the management of the com‐\npany.” The PPM also contradicted certain statements Plain‐\ntiffs allege the Individual Defendants made during the town \nhall meetings. For instance, with regard to Infinium’s debts, \nthe PPM disclosed that Plaintiffs’ equity interests would be \n“junior in right of payment” to Infinium’s “secured and unse‐\ncured debts, including commercial lines of credit” and “any \nother debt securities [Infinium] may issue in the future.” The \ndisclosures were particularly forthright about risks from a \n$53 million debt related to the redemption of equity interests \nin Infinium held by George Hanley and Nathan Laurell: “This \nwill cause a significant change in the capital structure of In‐\nfinium, and could constrain or even eliminate Infinium’s abil‐\nity to obtain financing for its business pursuits. The servicing \nof this debt will constrain Infinium’s available capital and \ncould have a material adverse effect on Infinium’s business.” \n Also disclosed in the PPM were limitations on the partici‐\npants’ redemption of capital, only 50% of which would be \navailable for redemption after one year, with the remainder \navailable after a second. The PPM explicitly stated that those \nredemption rights could be limited or suspended by the \nboard under certain circumstances, such as if redemption \n\fNo. 17‐2583 5 \n\nwould prevent the company from complying with regula‐\ntions requiring it to hold a particular amount of capital. In ad‐\ndition, the company would have “broad discretion in using \nthe proceeds” from the Equity Conversion and, indeed, might \n“not use them in a manner Investors would prefer.” \n The PPM also referred to the LLC Agreement for Infinium \nas well as a Subscription Agreement, both of which were at‐\ntached as exhibits. The LLC Agreement provided details \nabout the structure of Infinium, including information de‐\nscribed in the PPM, such as capital redemption rules and the \nnature of participants’ equity interests. The Subscription \nAgreement set forth several representations and warranties, \nincluding that the Equity Conversion participant could “bear \nthe economic risk of losing the … entire investment.” The \nAgreement confirmed that each Equity Conversion partici‐\npant was furnished with the LLC Agreement, the Joinder, the \nPPM, and other documents, materials, and information as he \nor she deemed necessary for evaluating whether to invest in \nthe company. The Subscription Agreement also contained a \nnon‐reliance clause which stated: “[I]n entering into this \ntransaction the undersigned is not relying upon any infor‐\nmation other than that contained in the LLC Agreement, the \nJoinder and the results of the undersigned’s own independent \ninvestigation.” All Equity Conversion participants were re‐\nquired to sign the Subscription Agreement. \n Plaintiffs allege they were told that, if they did not elect to \nparticipate in the Equity Conversion by March 2, 2012, then \ntheir loans would be repaid during 2012. Thereafter, Plaintiffs \nallege, those who opted against taking part in the Equity Con‐\nversion would no longer be able to participate in a permanent, \nstructured vehicle to share in the company’s growth. Prior to \n\f6 No. 17‐2583 \n\nthe March 2nd deadline, Plaintiffs allege that the Individual \nDefendants represented to some Plaintiffs that Infinium \nwould still have nearly $50 million in equity after Hanley and \nLaurell redeemed their own equity interests. Ultimately, \nevery Plaintiff elected to participate in the Equity Conversion \nand, collectively, converted more than $5 million from capital \npool loans into equity in Infinium. Some Plaintiffs chose to \ninvest additional funds in excess of loans already made \nthrough the capital pool. \n According to Plaintiffs, Infinium’s financial position was \nfar worse than represented to them when they agreed to par‐\nticipate in the Equity Conversion. During an April 2015 dep‐\nosition conducted by the Securities and Exchange Commis‐\nsion (SEC), Plaintiff Gordon Wallace allegedly saw certain \nconfidential documents authored or received by the Individ‐\nual Defendants pertaining to Infinium’s financial situation in \nthe weeks before the Equity Conversion. According to Plain‐\ntiffs, the documents showed that Infinium was insolvent and \non the verge of bankruptcy at that time and had already \ndrawn down $6 million on the $20 million line of credit men‐\ntioned at the town hall meetings. Infinium’s management \nteam thus feared that its lender would require immediate re‐\npayment of the line of credit, an impossibility due to the com‐\npany’s insolvency. Moreover, Plaintiffs allege that the docu‐\nments showed that Infinium had already incurred losses of \n$4.3 million during January and February 2012. The docu‐\nments also allegedly demonstrated that, before the Equity \nConversion, Infinium lacked the resources to repay the capital \npool loans, to allow Hanley and Laurell to redeem their eq‐\nuity, or even to sustain the trading activities necessary to gen‐\nerate profits. As further indication of Infinium’s poor finan‐\ncial circumstances during early 2012, Plaintiffs allege that in \n\fNo. 17‐2583 7 \n\nlate 2011 two of the Individual Defendants, Charles Whitman \nand Brian Johnson, privately made undisclosed redemptions \nof their own equity in Infinium. \n Infinium’s financial difficulties continued throughout \n2012, culminating in losses for the year in excess of $6.5 mil‐\nlion. On March 8, 2013, Infinium suspended Plaintiffs’ rights \nto redeem their capital on the ground that the company was \nin default of its debt service obligations to Hanley and Laurell. \nDuring an “investor call” with Plaintiffs on September 1, 2013, \nInfinium’s acting CEO revealed that the money invested by \nthe Equity Conversion participants had become “worthless,” \nwith a value of negative $18 million. At that time, Plaintiffs \nalso learned that, to prevent a hostile takeover by Hanley, In‐\nfinium had not only converted a portion of the debt owed to \nHanley and Laurell into equity but also agreed to eliminate \nPlaintiffs’ right to redeem their investments. Additionally, \nPlaintiffs learned during the call about a class of equity con‐\nsisting of money invested by third‐parties that was superior \nto Plaintiffs’ equity and protected from certain losses. Infin‐\nium sought additional outside investment during February \n2013. \n Plaintiffs filed this action in the Northern District of Illi‐\nnois in January 2014. Their complaint alleged claims for fed‐\neral securities fraud under Section 10(b) of the Securities Ex‐\nchange Act of 1934 and SEC Rule 10b‐5. See 15 U.S.C. § 78j; 17 \nC.F.R. § 240.10b‐5. The complaint also included common law \nclaims for fraud and breach of fiduciary duty. Essentially, \nPlaintiffs alleged that during the three February 2012 town \nhall meetings Infinium, through its management, made vari‐\nous misrepresentations and omissions regarding the Equity \nConversion proposal and Infinium’s financial condition that \n\f8 No. 17‐2583 \n\nhad a material effect on Plaintiffs’ decisions to convert their \nloans into equity. \n Although Plaintiffs amended their complaint several \ntimes (once as a matter of right and subsequently with leave \nof the court), the district court granted motions dismissing the \nsecond and fourth amended complaints. Both dismissals were \nwithout prejudice. After Plaintiffs filed a fifth amended com‐\nplaint, the district court issued an order in July 2017 granting \nyet another motion to dismiss, this time with prejudice. \n In dismissing the fifth amended complaint, the district \ncourt explained that Plaintiffs’ most recent amendments \nfailed to correct deficiencies that the court had previously \nidentified. The court noted that it dismissed the second and \nfourth amended complaints because Plaintiffs “insufficiently \npleaded scienter, failed to identify the speakers of the alleged \nmisrepresentations with particularity, and failed to plead a \nduty to speak with respect to the alleged material omissions.” \nYet the fifth amended complaint made no changes in the \npleading of scienter, made only conclusory allegations that \nthe defendants had a duty to speak with regard to the alleged \nomissions, and made only cosmetic rather than substantive \nchanges in an attempt to identify with particularity which In‐\ndividual Defendants made the alleged misrepresentations. \nPlaintiffs now appeal the dismissal with prejudice of the fifth \namended complaint. \n II. Analysis \n We review de novo a district court’s grant of a motion to \ndismiss for failure to state a claim. Calderon‐Ramirez v. McCa‐\nment, 877 F.3d 272, 275 (7th Cir. 2017). Before addressing the \narguments raised by Plaintiffs, we turn first to the argument \n\fNo. 17‐2583 9 \n\nby Infinium and the Individual Defendants that the non‐reli‐\nance clause in the Subscription Agreement requires dismissal \nregardless of whether the fifth amended complaint ade‐\nquately stated a claim for relief. \nA. The Non‐Reliance Clause \n In support of their motions to dismiss the second, fourth, \nand fifth amended complaints, Infinium and the Individual \nDefendants argued that, even if Plaintiffs stated a claim, the \nnon‐reliance clause contained in the Subscription Agreement \nrequires dismissal. The district court did not address this ar‐\ngument when dismissing any of the complaints. Citing Riss‐\nman v. Rissman, 213 F.3d 381 (7th Cir. 2000), the defendants \nargue that, as a matter of law, Plaintiffs’ claimed reliance on \noral statements made at the town hall meetings was unrea‐\nsonable in light of the Subscription Agreement’s non‐reliance \nclause, through which each Plaintiff indicated he or she was \nnot relying upon any information other than that contained in \nthe LLC Agreement, the Joinder, and the results of his or her \nown independent investigation. \n In Rissman, this court concluded that several non‐reliance \nclauses in a private stock sale agreement prevented a plaintiff \nfrom bringing a federal securities fraud claim alleging that he \nsold his shares in a family company based on his brother’s \ndeceitful assurances that he would never take the company \npublic or sell it to a third party. Id. at 382–83. The court held \nthat “non‐reliance clauses in written stock‐purchase agree‐\nments preclude any possibility of damages under the federal \nsecurities laws for prior oral statements.” Id. at 383–84 (first \nciting Jackvony v. RIHT Fin. Corp., 873 F.2d 411 (1st Cir. 1989) \n(Breyer, J.); then citing One‐O‐One Enters., Inc. v. Caruso, 848 \nF.2d 1282 (D.C. Cir. 1988) (Ginsburg, J.)). Emphasizing that \n\f10 No. 17‐2583 \n\nnon‐reliance clauses are the product of any bargain negoti‐\nated between the parties, the court observed that they “en‐\nsure[] that both the transaction and any subsequent litigation \nproceed on the basis of the parties’ writings, which are less \nsubject to the vagaries of memory and the risks of fabrica‐\ntion.” Id. at 384; see also Cerabio LLC v. Wright Med. Tech., Inc., \n410 F.3d 981, 992 (7th Cir. 2005) (noting that enforcement of a \nnon‐reliance clause was particularly appropriate because “the \nparties were sophisticated commercial entities assisted by \ncounsel”); Vigortone AG Prods., Inc. v. PM AG Prods., Inc., 316 \nF.3d 641, 644–45 (7th Cir. 2002) (“[P]arties to contracts who do \nwant to head off the possibility of a fraud suit will sometimes \ninsert a ‘no‐reliance’ clause into their contract, stating that nei‐\nther party has relied on any representations made by the \nother. Since reliance is an element of fraud, the clause, if up‐\nheld—and why should it not be upheld, at least when the con‐\ntract is between sophisticated commercial enterprises—pre‐\ncludes a fraud suit … .” (internal citations omitted)). \n Each Plaintiff in this case entered into a written agreement \nthat contained ample cautionary language about the risks as‐\nsociated with the investment. In particular, the Subscription \nAgreement recognizes that Infinium is a highly speculative \nventure involving a high degree of financial risk and, as a re‐\nsult, each Equity Conversion participant must be able to bear \nthe economic risk of losing his or her entire investment. Each \nPlaintiff signed the Subscription Agreement and represented \nthat he or she was “not relying upon any information other \nthan that contained in the LLC Agreement, the Joinder and \nthe results of the undersigned’s own independent investiga‐\ntion.” Plaintiffs had every opportunity to read the agreement \nand investigate the company as he or she deemed appropriate \nto evaluate the merits and risks of the investment. Based on \n\fNo. 17‐2583 11 \n\nthis court’s decision in Rissman, the written representations in \nthe Subscription Agreement preclude Plaintiffs from now \nclaiming that they chose to participate in the Equity Conver‐\nsion because they reasonably relied on the Individual Defend‐\nants’ oral statements made during the town hall meetings. \nAlthough the district court’s dismissal of the fifth amended \ncomplaint could be affirmed in large part on this basis alone, \nthe court will address Plaintiffs’ challenges to the merits of the \ndistrict court’s decision that the complaint failed to state a \nclaim for relief. \nB. Failure to State a Claim for Federal Securities Fraud \n “A motion under Rule 12(b)(6) tests whether the com‐\nplaint states a claim on which relief may be granted.” Richards \nv. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). “To survive a Rule \n12(b)(6) motion to dismiss, a complaint must (1) describe the \nclaim in sufficient detail to give the defendant fair notice of \nthe claim and grounds on which it rests, Dura Pharmaceuticals, \nInc. v. Broudo, 544 U.S. 336, 346 (2005), and (2) contain suffi‐\ncient factual matter, accepted as true, to ‘state a claim to relief \nthat is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 672 \n(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 \n(2007)). The complaint’s “[f]actual allegations must be enough \nto raise a right to relief above the speculative level.” Twombly, \n550 U.S. at 555. \n Heightened pleading requirements apply to complaints \nalleging fraud. Federal Rule of Civil Procedure 9(b) provides \nthat a party alleging fraud or mistake “must state with partic‐\nularity the circumstances constituting fraud or mistake,” alt‐\nhough “[m]alice, intent, knowledge, and other conditions of a \nperson’s mind may be alleged generally.” This generally \nmeans “describing the ‘who, what, when, where, and how’ of \n\f12 No. 17‐2583 \n\nthe fraud.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir \n2011). The purpose of this particularity requirement is “to dis‐\ncourage a ‘sue first, ask questions later’ philosophy.” Pirelli \nArmstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., \n631 F.3d 436, 441 (7th Cir. 2011). “Greater precomplaint inves‐\ntigation is warranted in fraud cases,” we have explained, “be‐\ncause public charges of fraud can do great harm to the repu‐\ntation of a business firm or other enterprise (or individual), … \nbecause fraud is frequently charged irresponsibly by people \nwho have suffered a loss and want to find someone to blame \nfor it, … and because charges of fraud (and also mistake, the \nother charge that Rule 9(b) requires be pleaded with particu‐\nlarity) frequently ask courts in effect to rewrite the parties’ \ncontract or otherwise disrupt established relationships.” \nAckerman v. Northwestern Mut. Life Ins. Co., 172 F.3d 467, 469 \n(7th Cir. 1999) (internal citations omitted). \n To state a claim for federal securities fraud, a complaint \nmust allege “(1) a material misrepresentation or omission by \nthe defendant; (2) scienter; (3) a connection between the mis‐\nrepresentation or omission and the purchase or sale of a secu‐\nrity; (4) reliance upon the misrepresentation or omission; (5) \neconomic loss; and (6) loss causation.” Pugh v. Tribune Co., 521 \nF.3d 686, 693 (7th Cir. 2008) (citing Stoneridge Inv. Partners, \nLLC v. Scientific–Atlanta, Inc., 552 U.S. 148, 157 (2008)). Even \nbefore the enactment of the Private Securities Litigation Re‐\nform Act of 1995 (PSLRA), this court had held that securities \nfraud claims must satisfy Rule 9(b)’s particularity standard. \nSee Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990). Sec‐\ntion 21D(b)(2) of the PSLRA added the requirement that com‐\nplaints alleging securities fraud “state with particularity facts \ngiving rise to a strong inference that the defendant acted with \nthe required state of mind.” 15 U.S.C. § 78u‐4(b)(2)(A). Any \n\fNo. 17‐2583 13 \n\ncomplaint alleging a material misstatement or omission must \nalso “specify each statement alleged to have been misleading” \nand the “reason or reasons why the statement is misleading.” \nId. § 78u‐4(b)(1). \n These are the standards the district court applied in find‐\ning Plaintiffs’ fifth amended complaint insufficient. Plaintiffs \ncontend that the district court erred in three respects by dis‐\nmissing their complaint with prejudice. First, they maintain \nthat they identified with adequate particularity the alleged \nfraudulent statements and omissions by the Individual De‐\nfendants. Second, they assert that the complaint creates a \nstrong inference that the Individual Defendants acted with \nthe required state of mind. Finally, they assert that the facts \nalleged in the complaint show that Infinium and the Individ‐\nual Defendants had a duty to disclose various pieces of infor‐\nmation to them. We will address each argument in turn. \n 1. Plaintiﬀs Failed to Identify the Speakers of Alleged \n Misrepresentations with Adequate Particularity. \n To satisfy Rule 9(b)’s particularity standard, a complaint \nmust “state ‘the identity of the person who made the misrep‐\nresentation, the time, place and content of the misrepresenta‐\ntion, and the method by which the misrepresentation was \ncommunicated to the plaintiff.’” Vicom, Inc. v. Harbridge \nMerch. Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994) (internal \nquotation marks omitted) (quoting Uni*Quality, Inc. v. Info‐\ntronx, Inc., 974 F.2d 918, 923 (7th Cir. 1992)). As a result, “[a] \ncomplaint that attributes misrepresentations to all defend‐\nants, lumped together for pleading purposes, generally is in‐\nsufficient.” Sears, 912 F.2d at 893 (quoting Design Inc. v. Syn‐\nthetic Diamond Tech., Inc., 674 F. Supp. 1564, 1569 (N.D. Ill. \n1987)). \n\f14 No. 17‐2583 \n\n The district court dismissed Plaintiffs’ second amended \ncomplaint in part because it set forth only general allegations \nthat “the Defendants” made various representations at the \ntown hall meetings. Those allegations failed to establish the \nidentity of the individuals who made the alleged representa‐\ntions and therefore clearly lacked Rule 9(b)’s required partic‐\nularity. Likewise, the district court dismissed the fourth \namended complaint because it merely replaced general alle‐\ngations against “the Defendants” or “Infinium” with lists of \nthe Individual Defendants’ names—“Whitman, Eickbush, \nRose, and Johnson”—and thus provided no greater detail re‐\ngarding which individuals made which representations. It \nwas against this backdrop that the district court determined \nthat the fifth amended complaint involved a change in form \nrather than substance by replacing three counts against “all \ndefendants” and “all Individual Defendants” with thirteen \ncounts that repeated the same general allegations against each \ndefendant individually, while at the same time conceding that \nthey did not know which Individual Defendant said what. \nPlaintiffs argue, however, that the “group pleading” doctrine \npermits them to make collective allegations here because the \nIndividual Defendants made three group presentations to \nPlaintiffs as potential investors. \n Prior to enactment of the PSLRA, some circuits adopted \nthe group pleading doctrine to “allow[] plaintiffs to link cer‐\ntain defendants to alleged misrepresentations simply by \npleading that the defendants were part of the ‘group’ that \nlikely put the challenged documents together.” Southland Sec. \nCorp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 363 (5th Cir. \n2004). The Ninth Circuit first formulated the doctrine in Wool \nv. Tandem Computers Inc.: \n\fNo. 17‐2583 15 \n\n In cases of corporate fraud where the false or mislead‐\n ing information is conveyed in prospectuses, registra‐\n tion statements, annual reports, press releases, or other \n “group‐published information,” it is reasonable to pre‐\n sume that these are the collective actions of the oﬃcers. \n Under such circumstances, a plaintiﬀ fulfills the partic‐\n ularity requirement of Rule 9(b) by pleading the mis‐\n representations with particularity and where possible \n the roles of the individual defendants in the misrepre‐\n sentations. \n818 F.2d 1433, 1440 (9th Cir. 1987) (citation omitted). Since the \nenactment of the PSLRA, however, some courts have deter‐\nmined that the judicially‐created group pleading doctrine \n“cannot withstand” the PSLRA’s clear statutory prerequisites \n“that the untrue statements or omissions be set forth with par‐\nticularity as to ‘the defendant’ and that scienter be pleaded \nwith regard to ‘each fact or omission’ sufficient to give ‘rise to \na strong inference that the defendant acted with the required \nstate of mind.’” Southland, 365 F.3d at 364 (citing 15 U.S.C. \n§ 78u‐4(b)). This court has embraced that reasoning and de‐\nclined to permit group pleading in this context. See Makor Is‐\nsues & Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588, 603 (7th Cir. \n2006), rev’d on other grounds, 551 U.S. 308 (2007) (Makor I). \n Plaintiffs argue that, although this court has expressly \nrejected the group pleading doctrine with regard to group‐\npublished documents, it has not gone so far as to preclude the \ninvocation of the group pleading doctrine to oral statements. \nBut nothing in the PSLRA indicates that its particularity \nrequirements distinguish between oral and written \nstatements. Indeed, extending the group pleading doctrine to \nencompass oral representations would be inconsistent with \n\f16 No. 17‐2583 \n\nthe reasoning that originally led some courts to create an \nexception to Rule 9(b). As the Ninth Circuit explained in Wool, \nthe court deemed it reasonable to presume that information \nin promulgated written documents reflected “the collective \nactions of the officers.” 818 F.2d at 1440. The doctrine sought \nto account for the opaque nature of modern business entities \nand “the fact that an individual’s actual role in drafting and \napproving particular documents and statements cannot, in \nmany cases, be reliably deduced from their title.” Southland, \n365 F.3d at 363 n.5. Oral statements, by contrast, involve no \nsuch ambiguity; they emanate from a single person against \nwhom purportedly defrauded listeners can bring a claim \ndirectly. See, e.g., In re Interactive Network, Inc. Sec. Litig., 948 \nF. Supp. 917, 922–23 (N.D. Cal. 1996) (“The purpose of the \ndoctrine is to relieve plaintiffs the burden of proving the \nauthorship of a writing. This problem of authorship does not \narise with oral statements.”); see also William O. Fisher, Don’t \nCall Me a Securities Law Groupie: The Rise and Possible Demise of \nthe “Group Pleading” Protocol in 10b‐5 Cases, 56 BUS. LAW. 991, \n1008 n.48 (2001) (discussing courts’ refusal to apply Wool to \noral statements). This court’s determination that the group \npleading doctrine is inconsistent with the PSLRA’s \nparticularity requirements thus applies with equal weight \nregardless of the form of the alleged misrepresentation or \nomission. \n Here, all Plaintiffs attended at least one town hall meeting, \nat which they allege that they each heard oral presentations \nabout the Equity Conversion from the Individual Defendants. \nPlaintiffs’ claims are premised upon their reliance on the oral \nstatements made at the town hall meetings, despite those \nstatements being clearly contrary to the written materials \nPlaintiffs received, and yet, Plaintiffs have no recollection of \n\fNo. 17‐2583 17 \n\nwho said what, even though each Plaintiff personally ob‐\nserved which representations Whitman, Eickbush, Rose, and \nJohnson made on particular days. Plaintiffs concede that they \ncannot sufficiently plead the relationship between the partic‐\nular representations made at the town hall meetings and the \nidentity of the Individual Defendant who spoke them without \ntaking discovery. Plaintiffs contend that they repeatedly re‐\nquested that the district court allow discovery to commence \nin order to obtain the transcripts of the town hall meetings, \nbut the district court denied their motions to lift the discovery \nstay that was put into effect pursuant to the requirements of \nthe PSLRA. \n The PSLRA imposes an automatic stay on discovery while \na motion to dismiss is pending, absent exceptional circum‐\nstances. 15 U.S.C. § 78u‐4(b)(3)(B). The purpose of the provi‐\nsion is to curtail abusive litigation—it allows the court to eval‐\nuate the plaintiffs’ claims before imposing any unreasonable \nburden on the defendant and it prevents a plaintiff from \nbringing an action without first possessing the information \nnecessary to satisfy the heightened pleading requirements of \nthe PSLRA and using discovery to obtain that information \nand resuscitate a complaint that would otherwise be dis‐\nmissed. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. \n308, 313 (2007); In re Comdisco Sec. Litig., 166 F. Supp. 2d 1260, \n1263 (N.D. Ill. 2001). Plaintiffs have not argued that the district \ncourt abused its discretion in denying its motions and have \nnot addressed the court’s reasons for so ruling. Those argu‐\nments are now waived as a result. See Hentosh v. Herman M. \nFinch Univ. of Health Sci./The Chi. Med. Sch., 167 F.3d 1170, 1173 \n(7th Cir. 1999). In short, the district court reasonably deter‐\nmined that the fifth amended complaint’s new gambit of al‐\n\f18 No. 17‐2583 \n\nleging in separate but identical counts that all Individual De‐\nfendants made all misrepresentations or omissions lacked the \nparticularity required by Rule 9(b) and the PSLRA. \n 2. Plaintiﬀs Failed to Adequately Plead Scienter. \n As noted above, a federal securities fraud complaint must \n“state with particularity facts giving rise to a strong inference \nthat the defendant acted with the required state of mind.” 15 \nU.S.C. § 78u‐4(b)(2)(A). The “required state of mind” refers to \nthe element of scienter, which means “an intent to deceive, \ndemonstrated by knowledge of the statement’s falsity or reck‐\nless disregard of a substantial risk that the statement is false.” \nHigginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 756 (7th Cir. \n2007). Under the PSLRA’s “strong inference” standard, “[a] \ncomplaint will survive … only if a reasonable person would \ndeem the inference of scienter cogent and at least as compel‐\nling as any opposing inference one could draw from the facts \nalleged.” Tellabs, 551 U.S. at 324. When determining whether \na complaint creates a strong inference of scienter, “the court \nmust take into account plausible opposing inferences.” Id. at \n323. \n This circuit’s rejection of the group pleading doctrine, dis‐\ncussed above, has particular relevance for the pleading of sci‐\nenter in securities fraud cases. The PSLRA requires that the \ncomplaint “state with particularity facts giving rise to a strong \ninference that the defendant acted with the required state of \nmind.” 15 U.S.C. § 78u‐4(b)(2)(A) (emphasis added). Agree‐\ning with the Fifth Circuit, this court has observed that \n“PSLRA references to ‘the defendant’ may only reasonably be \nunderstood to mean ‘each defendant’ in multiple defendant \ncases.” Makor I, 437 F.3d at 602 (quoting Southland, 365 F.3d at \n365–66). As a result, “plaintiffs must create a strong inference \n\fNo. 17‐2583 19 \n\nof scienter with respect to each individual defendant.” Pugh, 521 \nF.3d at 693–94 (emphasis added) (citing Makor Issues & Rights, \nLtd. v. Tellabs, Inc., 513 F.3d 702, 710 (7th Cir. 2008) (Makor II)). \n The fifth amended complaint’s shortcomings in stating its \nclaims with particularity as to each Individual Defendant \ncarry over into its pleading of scienter. As the district court \nnoted in dismissing both the fourth and fifth amended com‐\nplaints, the allegation that the Individual Defendants acted \nwith an intent to deceive hinged on a single paragraph detail‐\ning the information that Plaintiff Gordon Wallace allegedly \nobtained during his April 2015 deposition by the SEC. That \nparagraph alleges that attorneys for the SEC “showed him \ndocuments authored, and/or received, by Whitman, Eick‐\nbush, Rose, and Johnson” demonstrating that the Individual \nDefendants knew various pieces of information about Infin‐\nium’s true financial situation in January and February 2012. \n Nothing about that paragraph, however, associates \nknowledge of particular information about Infinium with any \nparticular Individual Defendant, making it impossible to as‐\nsess the statements any Individual Defendant made at the \ntown hall meetings against the information he allegedly pos‐\nsessed at the time he made them. Instead, it suggests that one \nplaintiff saw documents indicating that one or more Individ‐\nual Defendants may have possessed information that im‐\npugned the truth of the representations made at the town hall \nmeetings. This court has determined, however, that a com‐\nplaint fails to satisfy the PSLRA’s particularity requirements \nby making conclusory allegations of scienter derived from a \ndefendant’s mere access to information. See Pugh, 521 F.3d at \n694 (“[T]here is a big difference between knowing about … \nreports from [a subsidiary] and knowing that the reports are \n\f20 No. 17‐2583 \n\nfalse.” (third alteration in original) (quoting Higginbotham, 495 \nF.3d at 758)). \n Analogizing to Matrixx Initiatives, Inc. v. Siracusano, 563 \nU.S. 27 (2011), Plaintiffs argue that they have pleaded ample \nfacts to create a strong inference that the Individual Defend‐\nants acted with an intent to deceive when soliciting participa‐\ntion in the Equity Conversion. Specifically, they contend that \nduring January and February 2012 the Individual Defendants \nall had significant equity interests in Infinium, knew that In‐\nfinium faced significant financial pressures, knew that pres‐\nsure on Infinium threatened their personal investments in it, \nand made knowingly false statements at the three town hall \nmeetings to secure an infusion of equity from Plaintiffs that \nwould permit the Individual Defendants to redeem a portion \nof their own investments. But Infinium and the Individual \nDefendants counter that the complaint merely shows that, af‐\nter several years of growth, Infinium presented an investment \nopportunity to its employees—sophisticated financial profes‐\nsionals—who chose to participate and then suffered the con‐\nsequences of unfavorable market conditions arising shortly \nthereafter. Because Plaintiffs’ fifth amended complaint failed \nto make adequately individualized allegations against each \nIndividual Defendant, however, we need not determine \nwhether the inference of scienter propounded by Plaintiffs is \ncogent and at least as compelling as the proposed alternative. \n 3. Plaintiﬀs Failed to Plead a Duty to Speak. \n As their final basis for reversal, Plaintiffs contend that the \ndistrict court erred in concluding that they failed to establish \nthat Infinium and the Individual Defendants had a duty to \ndisclose certain information to them. Plaintiffs contend that \nthe facts alleged support their assertion that the Individual \n\fNo. 17‐2583 21 \n\nDefendants had a “duty to speak” regarding Infinium’s finan‐\ncial condition. \n The district court’s decision dismissing the fifth amended \ncomplaint summarized Plaintiffs’ efforts to plead a duty to \nspeak. Compared to the fourth amended complaint, the fifth \namended complaint added two paragraphs alleging a duty to \nspeak: \n 65. By voluntarily disclosing material facts in connec‐\n tion with securities transactions, Defendants In‐\n finium, Whitman, Eickbush, Rose, and Johnson \n assumed a duty to speak fully and truthfully on \n those subjects. \n 66. A duty to disclose the true financial state of Infin‐\n ium arose because secret information rendered \n the public statements materially misleading. \nThe fifth amended complaint also alleged that each of the In‐\ndividual Defendants owed Plaintiﬀs “fiduciary duties … first \nto Plaintiﬀs as creditors of an insolvent corporation and then \nas shareholders after the conversion.” In dismissing the fifth \namended complaint, the district court observed that these al‐\nlegations did nothing to remedy the fourth amended com‐\nplaint’s failure to state with particularity how the alleged \nomissions rendered any aﬃrmative disclosure misleading. \n On appeal, Plaintiffs’ duty to speak argument cites no law \nand is largely undeveloped. Plaintiffs discuss Infinium’s line \nof credit as an example of an affirmative statement rendered \nmisleading by the omission of pertinent information. They \nnote that the fifth amended complaint alleges, on the one \nhand, that the Individual Defendants represented at the town \nhall meetings that Infinium had access to an untapped \n\f22 No. 17‐2583 \n\n$20 million line of credit and, on the other hand, that Plaintiff \nWallace saw documents during his April 2015 SEC deposition \nindicating that Infinium had already drawn down $6 million \non that line of credit by the time of the town hall meetings. \nAccording to Plaintiffs, they adequately pleaded facts sug‐\ngesting an omission by alleging this discrepancy between the \nrepresentations at the town hall meetings and the information \nthe Individual Defendants actually possessed at that time. \n Plaintiffs’ duty to speak argument falls short for at least \ntwo reasons. First, Plaintiffs’ allegations that the Individual \nDefendants “assumed a duty to speak” and “owed Plaintiffs \nfiduciary duties” are mere legal conclusions that the court \nneed not accept as true. Iqbal, 556 U.S. at 678 (“[T]he tenet that \na court must accept as true all of the allegations contained in \na complaint is inapplicable to legal conclusions.”). In their \nbriefing to this court, Plaintiffs have presented no legal argu‐\nment that the facts pled in the complaint gave rise to a legal \nduty to speak. \n Second, Plaintiffs’ factual allegations regarding purported \nomission suffer from the same absence of particularity that \nplagues the rest of their claims. Taking as an example the al‐\nlegations surrounding the $20 million line of credit, as Plain‐\ntiffs argue in their brief, nothing in the fifth amended com‐\nplaint associates particular knowledge with particular Indi‐\nvidual Defendants. As already discussed above, the allegation \npertaining to information learned during Plaintiff Wallace’s \nApril 2015 SEC deposition claims that Wallace saw “docu‐\nments authored, and/or received, by Whitman, Eickbush, \nRose, and Johnson” showing that they possessed several \npieces of information about Infinium’s financial position at \nthe time they made the town hall presentations. Nothing in \n\fNo. 17‐2583 23 \n\nthat allegation indicates which of the Individual Defendants \npossessed particular pieces of information that could have \nrendered his statements at the town hall meetings misleading. \nIn other words, Plaintiffs failed to link any of the alleged \nomissions to any of the statements made by the Individual \nDefendants. Consequently, the district court properly con‐\ncluded that the fifth amended complaint failed to allege with \nthe requisite particularity facts indicating that the Individual \nDefendants possessed knowledge rendering their affirmative \nrepresentations misleading at the town hall meetings. \nC. Failure to State a Claim for Breach of Fiduciary Duty and \nCommon Law Fraud \n The district court also dismissed Plaintiffs’ state law \nclaims for breach of fiduciary duty and fraud. Because Plain‐\ntiffs’ briefs did not challenge the district court’s dismissal of \nthese claims, Plaintiffs have forfeited any opportunity to do \nso. In any event, we find that the district court did not err in \ndismissing Plaintiffs’ breach of fiduciary duty and common \nlaw fraud claims. To state a claim for breach of fiduciary duty \nunder Delaware law, a plaintiff must allege that a fiduciary \nduty existed and that the defendant breached that duty. See \nStewart v. Wilmington Trust SP Servs., Inc., 112 A.3d 271, 297 \n(Del. Ch. 2015) (citation omitted). A plaintiff must plead the \nfollowing elements to state a common law fraud claim: “(1) a \nfalse representation, usually one of fact, made by the defend‐\nant; (2) the defendant’s knowledge or belief that the represen‐\ntation was false, or was made with reckless disregard of the \ntruth; (3) an intent to induce the plaintiff to act or to refrain \nfrom acting; (4) the plaintiff’s action or inaction taken in justi‐\nfiable reliance upon the representation; and (5) damage to the \nplaintiff as a result of such reliance.” Johnson v. Preferred Prof’l \n\f24 No. 17‐2583 \n\nIns. Co., 91 A.3d 994, 1017 (Del. Super. Ct. 2014) (citation omit‐\nted). Both claims are subject to Rule 9(b)’s heightened plead‐\ning requirements, as they are premised on allegations that the \ndefendants knowingly misled Plaintiffs. Plaintiffs’ claims for \nbreach of fiduciary duty and common law fraud fail for the \nsame reasons as their security fraud claim—Plaintiffs have \nneither pled the required elements of scienter nor alleged the \nfacts underlying these claims with the particularity required \nby Rule 9(b). The district court therefore correctly concluded \nthat Plaintiffs failed to state a claim for breach of fiduciary \nduty and common law fraud. \n III. Conclusion \n We agree with the district court that Plaintiffs failed to \nstate a claim upon which relief can be granted and find that \nthe district court did not abuse its discretion in denying leave \nto further amend the complaint, since such leave was never \nsought. Plaintiffs have not proposed how they might be able \nto amend their pleading to cure the deficiencies contained in \nthe fifth amended complaint. Under these circumstances, dis‐\nmissal with prejudice is appropriate. See Leavell v. Ill. Dep’t of \nNat. Res., 600 F.3d 798, 808 (7th Cir. 2010). \n For the foregoing reasons, the district court’s decision dis‐\nmissing the fifth amended complaint with prejudice is \nAFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367673/", "author_raw": "Chief District Judge"}]}	SYKES	BARRETT	GRIESBACH	1	{"SYKES": ", Circuit", "BARRETT": ", Circuit", "GRIESBACH": ", Chief District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590420/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,423		Veronica Price v. City of Chicago	2019-02-13	17-2196	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2196\nVERONICA PRICE, et al.,\n Plaintiffs-Appellants,\n v.\n\nCITY OF CHICAGO, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Northern District of Illinois, Eastern Division.\n No. 16-cv-8268 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED FEBRUARY 13, 2018 — DECIDED FEBRUARY 13, 2019\n ____________________\n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,\nChief District Judge. ∗\n SYKES, Circuit Judge. Pro-life “sidewalk counselors” sued\nto enjoin Chicago’s “bubble zone” ordinance, which bars\nthem from approaching within eight feet of a person in the\nvicinity of an abortion clinic if their purpose is to engage in\n\n\n∗ Of the Eastern District of Wisconsin, sitting by designation.\n\f2 No. 17-2196\n\ncounseling, education, leaﬂetting, handbilling, or protest.\nThe plaintiﬀs contend that the ﬂoating bubble zone is a\nfacially unconstitutional content-based restriction on the\nfreedom of speech. The district judge dismissed the claim,\nrelying on Hill v. Colorado, 530 U.S. 703 (2000), which upheld\na nearly identical Colorado law against a similar First\nAmendment challenge.\n Abortion clinic buﬀer-zone laws “impose serious bur-\ndens” on core speech rights. McCullen v. Coakley, 134 S. Ct.\n2518, 2535 (2014). Under Hill, however, a ﬂoating bubble\nzone like this one is not considered a content-based re-\nstriction on speech and thus is not subject to strict judicial\nscrutiny. 530 U.S. at 725. Rather, the ordinance is classiﬁed as\na content-neutral “time, place, or manner” restriction and is\ntested under the intermediate standard of scrutiny, which\nasks whether the law is narrowly tailored to serve signiﬁcant\ngovernmental interests. Id. at 725–26. Hill answered that\nquestion in the aﬃrmative, holding that the governmental\ninterests at stake—preserving clinic access and protecting\npatients from unwanted speech—are signiﬁcant, and an\n8-foot no-approach zone around clinic entrances is a narrow-\nly tailored means to address those interests. Id. at 716, 725–\n30.\n Hill’s content-neutrality holding is hard to reconcile with\nboth McCullen and Reed v. Town of Gilbert, 135 S. Ct. 2218\n(2015), and its narrow-tailoring holding is in tension with\nMcCullen. Still, neither McCullen nor Reed overruled Hill, so\nit remains binding on us. Moreover, Chicago’s bubble-zone\nlaw is narrower than the one upheld in Hill: Colorado’s no-\napproach zone applies within a 100-foot radius of a clinic\nentrance; Chicago’s applies within a 50-foot radius. Lastly,\n\fNo. 17-2196 3\n\nwe would open a circuit split if we allowed this facial chal-\nlenge to move forward. The Third Circuit, applying Hill,\nupheld Pittsburgh’s 8-foot bubble zone against a facial\nchallenge without requiring an evidentiary showing from\nthe City. See Brown v. City of Pittsburgh, 586 F.3d 263, 270–73\n(3d Cir. 2009). We aﬃrm the judgment.\n I. Background\n The case comes to us from a dismissal at the pleading\nstage, so we sketch the facts as alleged in the plaintiﬀs’\ncomplaint, accepting them as true for purposes of this\nappeal. Deppe v. Nat’l Collegiate Athletic Ass’n, 893 F.3d 498,\n499 (7th Cir. 2018). Pro-life advocates Veronica Price, David\nBergquist, Ann Scheidler, and Anna Marie Scinto Mesia\nregularly engage in what’s known as “sidewalk counseling”\non the sidewalks and public ways outside Chicago abortion\nclinics. This entails peacefully approaching women entering\nthe clinics to give them pro-life literature, discuss the risks of\nand alternatives to abortion, and oﬀer support if the women\nwere to carry their pregnancies to term. These conversations\nmust take place face to face and in close proximity to permit\nthe sidewalk counselors to convey a gentle and caring\nmanner, maintain eye contact and a normal tone of voice,\nand protect the privacy of those involved.\n In October 2009 the Chicago City Council adopted an or-\ndinance that eﬀectively prohibits sidewalk counseling by\nbanning the close approach it requires. The Council amend-\ned the City’s disorderly conduct ordinance to prohibit any\nperson from approaching within eight feet of another person\nnear an abortion clinic for the purpose of engaging in the\ntypes of speech associated with sidewalk counseling. The\nordinance provides:\n\f4 No. 17-2196\n\n A person commits disorderly conduct when\n he … knowingly approaches another person\n within eight feet of such person, unless such\n other person consents, for the purpose of passing\n a leaﬂet or handbill to, displaying a sign to, or en-\n gaging in oral protest, education, or counseling\n with such other person in the public way within a\n radius of 50 feet from any entrance door to a\n hospital, medical clinic or healthcare facili-\n ty … .\nCHI., ILL., CODE § 8-4-010(j)(1) (2009) (emphasis added).\nChicago’s ordinance is nearly identical to—indeed, was\nmodeled after—the Colorado law upheld in Hill. Both laws\nimpose an 8-foot no-approach bubble zone, but Chicago’s\nlaw operates within a smaller radius. Colorado’s 8-foot\nbubble zone applies within a 100-foot radius of an abortion-\nclinic entrance. Chicago’s applies within a 50-foot radius.\nThe City’s ordinance otherwise mirrors the law at issue in\nHill.\n In August 2016 the four sidewalk counselors and two ad-\nvocacy groups joined together to sue the City under\n42 U.S.C. § 1983 seeking declaratory and injunctive relief\nagainst the enforcement of the bubble-zone ordinance. Their\ncomplaint raised four claims: (1) the ordinance infringes the\nfreedom of speech guaranteed by the First Amendment, both\nfacially and as applied; (2) the ordinance is unconstitutional-\nly vague in violation of the Due Process Clause of the\nFourteenth Amendment; (3) the City selectively enforces the\nbubble-zone ordinance in violation of the Equal Protection\nClause of the Fourteenth Amendment; and (4) the ordinance\ninfringes the plaintiﬀs’ state constitutional right to freedom\n\fNo. 17-2196 5\n\nof speech and assembly. Much of the complaint describes\nspeciﬁc instances of selective or improper enforcement from\nearly 2010 through mid-2016, but those allegations have no\nbearing on this appeal.\n The City moved to dismiss the complaint for failure to\nstate a claim. See FED. R. CIV. P. 12(b)(6). The district judge\ngranted the motion in part. She ruled that Hill forecloses the\nfacial First Amendment challenge and the due-process\nvagueness claim. But she allowed the case to proceed on the\nas-applied First Amendment challenge, the equal-protection\nclaim alleging selective enforcement, and the state constitu-\ntional claims. The parties eventually settled these remaining\nclaims and jointly moved to dismiss them. The judge entered\nﬁnal judgment, setting up this appeal contesting only the\nRule 12(b)(6) ruling.\n II. Discussion\n We review a Rule 12(b)(6) dismissal de novo. O’Boyle v.\nReal Time Resolutions, Inc., 910 F.3d 338, 342 (7th Cir. 2018).\nThe plaintiﬀs contend that Chicago’s bubble-zone ordinance\nis a content-based restriction on speech and is facially un-\nconstitutional under strict scrutiny. Their fallback position is\nthat the ordinance ﬂunks the narrow-tailoring requirement\nof the intermediate test for content-neutral restrictions on\nspeech.\n The Supreme Court considered and rejected these precise\narguments in Hill, as the plaintiﬀs must and do\nacknowledge. As they see it, however, Hill is no longer an\ninsuperable barrier to suits challenging abortion clinic\nbubble-zone laws. The premise of their claim is that the\nCourt’s more recent decisions in Reed and McCullen have so\n\f6 No. 17-2196\n\nthoroughly undermined Hill’s reasoning that we need not\nfollow it.\n That’s a losing argument in the court of appeals. The\nCourt’s intervening decisions have eroded Hill’s foundation,\nbut the case still binds us; only the Supreme Court can say\notherwise. See State Oil Co. v. Kahn, 522 U.S. 3, 20 (1997) (“[I]t\nis this Court’s prerogative alone to overrule one of its prece-\ndents.”). The Court’s instructions in this situation are clear:\n“If a precedent of this Court has direct application in a case,\nyet appears to rest on reasons rejected in some other line of\ndecisions, the Court of Appeals should follow the case [that]\ndirectly controls, leaving to this Court the prerogative of\noverruling its own decisions.” Agostini v. Felton, 521 U.S. 203,\n237–38 (1997) (quotation marks omitted).\n That said, in the nineteen years since Hill was decided,\nthe Court has reﬁned the concept of content neutrality and\nclariﬁed the requirement of narrow tailoring in a First\nAmendment challenge of this type. To see how, it’s helpful\nto trace the doctrinal development in this speciﬁc corner of\nfree-speech law.\nA. Speech in a Traditional Public Forum\n We begin with ﬁrst principles. “The First Amendment\nreﬂects a profound national commitment to the principle\nthat debate on public issues should be uninhibited, robust,\nand wide-open.” Snyder v. Phelps, 562 U.S. 443, 452 (2011)\n(quotation marks omitted). “Leaﬂetting and commenting on\nmatters of public concern are classic forms of speech that lie\nat the heart of the First Amendment … .” Schenck v.\nPro-Choice Network of W. N.Y., 519 U.S. 357, 377 (1997). More-\nover, sidewalks and other public ways “occupy a special\n\fNo. 17-2196 7\n\nposition in terms of First Amendment protection because of\ntheir historic role as sites for discussion and debate.”\nMcCullen, 134 S. Ct. at 2529 (quotation marks omitted). These\npublic spaces—“traditional public fora” in the doctrinal\nnomenclature—“have immemorially been held in trust for\nthe use of the public and, time out of mind, have been used\nfor purposes of assembly, communicating thoughts between\ncitizens, and discussing public questions.” Hague v. Comm.\nfor Indus. Org., 307 U.S. 496, 515 (1939).\n As the Court explained in McCullen:\n It is no accident that public streets and side-\n walks have developed as venues for the ex-\n change of ideas. Even today, they remain one\n of the few places where a speaker can be conﬁ-\n dent that he is not simply preaching to the\n choir. With respect to other means of commu-\n nication, an individual confronted with an un-\n comfortable message can always turn the page,\n change the channel, or leave the Web site. Not\n so on public streets and sidewalks. There, a lis-\n tener often encounters speech he might other-\n wise tune out. In light of the First\n Amendment’s purpose to preserve an uninhib-\n ited marketplace of ideas in which truth will\n ultimately prevail, this aspect of traditional\n public fora is a virtue, not a vice.\n134 S. Ct. at 2529 (citation and quotation marks omitted).\nThus, speech “is at its most protected on public sidewalks.”\nSchenck, 519 U.S. at 377.\n\f8 No. 17-2196\n\n That the sidewalk counselors seek to reach women as\nthey enter an abortion clinic—at the last possible moment\nwhen their speech might be eﬀective—“only strengthens the\nprotection aﬀorded [their] expression.” McIntyre v. Ohio\nElections Comm'n, 514 U.S. 334, 347 (1995). “Urgent, im-\nportant, and eﬀective speech can be no less protected than\nimpotent speech, lest the right to speak be relegated to those\ninstances when it is least needed. No form of speech is\nentitled to greater constitutional protection … .” Id. (citation\nomitted). And direct “one-on-one communication” has long\nbeen recognized as “the most eﬀective, fundamental, and\nperhaps economical avenue of political discourse.”\nMcCullen, 134 S. Ct. at 2536 (quotation marks omitted).\n * * *\n It is a “guiding First Amendment principle that the gov-\nernment has no power to restrict expression because of its\nmessage, its ideas, its subject matter, or its content,” and this\nprinciple “applies with full force in a traditional public\nforum.” Id. at 2529 (quotation marks omitted). “Content-\nbased laws—those that target speech based on its communi-\ncative content—are presumptively unconstitutional” and get\nstrict judicial scrutiny; laws of this type “may be justiﬁed\nonly if the government proves that they are narrowly tai-\nlored to serve compelling state interests.” Reed, 135 S. Ct. at\n2226.\n On the other hand, the government has “somewhat wid-\ner leeway to regulate features of speech unrelated to its\ncontent.” McCullen, 134 S. Ct. at 2529. “[E]ven in a public\nforum the government may impose reasonable restrictions\non the time, place, or manner of protected speech, provided\nthe restrictions are justiﬁed without reference to the content\n\fNo. 17-2196 9\n\nof the regulated speech, that they are narrowly tailored to\nserve a signiﬁcant governmental interest, and that they leave\nopen ample alternative channels for communication of the\ninformation.” Ward v. Rock Against Racism, 491 U.S. 781, 791\n(1989) (quotation marks omitted).\n To date, the Supreme Court has applied the intermediate\nstandard of scrutiny to abortion-clinic buﬀer zones, with\nmixed results. We now turn to those cases.\nB. The Abortion Clinic Buﬀer-Zone Cases\n 1. Madsen v. Women’s Health Center and\n Schenck v. Pro-Choice Network of Western New York\n The Court’s ﬁrst two occasions to address abortion-clinic\nbuﬀer zones came in cases involving injunctions entered by\nstate and federal courts to address unlawful conduct associ-\nated with the large-scale clinic blockades of the early 1990s\nfor which ordinary law-enforcement responses had proven\nineﬀective. Schenck, 519 U.S. at 362–63 (describing the clinic\nblockades); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753,\n758–59 (1994) (same).\n In Madsen the Court reviewed a state-court injunction\nbarring the named defendants from entering a 36-foot buﬀer\nzone around a particular clinic. 512 U.S. at 760. As relevant\nhere, the injunction also established a 300-foot zone around\nthe clinic within which the defendants were prohibited from\n“physically approaching any person seeking the services of\nthe [c]linic” without that person’s consent. Id. The Court ﬁrst\nruled that these restrictions were content neutral and did not\nrequire strict scrutiny. Id. at 762–64. However, the Court\napplied a “more stringent” form of intermediate scrutiny\nbecause injunctions “carry greater risks of censorship and\n\f10 No. 17-2196\n\ndiscriminatory application than do general ordinances.” Id.\nat 764–65. This yielded a split result: The Court upheld the\nﬁxed 36-foot buﬀer zone but invalidated the ﬂoating “no\napproach” zone. Id. at 768–70, 773–74.\n In Schenck the Court applied Madsen and upheld a provi-\nsion in a federal-court injunction prohibiting the named\ndefendants from entering a ﬁxed 15-foot buﬀer zone around\nthe doorways, driveways, and parking lots of certain abor-\ntion clinics. 519 U.S. at 380–83. But the Court invalidated a\nprovision barring the defendants from approaching within\n15 feet of any person entering or leaving the clinics. Id. at\n377–79. The Court held that the 15-foot ﬂoating bubble zone\nwas unconstitutional because it prevented the defendants\n“from communicating a message from a normal conversa-\ntional distance or handing leaﬂets to people entering or\nleaving the clinics who [were] walking on the public side-\nwalks.” Id. at 377.\n The Court’s reasoning rested primarily on the venerable\nprinciple that leaﬂetting on public sidewalks is core protect-\ned speech. “Leaﬂetting and commenting on matters of public\nconcern are classic forms of speech that lie at the heart of the\nFirst Amendment, and speech in public areas is at its most\nprotected on public sidewalks, a prototypical example of a\ntraditional public forum.” Id. But the Court was also con-\ncerned that the ﬂoating bubble zone was not narrowly\ntailored: “With clinic escorts leaving the clinic to pick up\nincoming patients and entering the clinic to drop them oﬀ, it\nwould be quite diﬃcult for a protester who wishes to engage\nin peaceful expressive activity to know how to remain in\ncompliance with the injunction,” resulting in “substantial\nrisk that much more speech will be burdened than the\n\fNo. 17-2196 11\n\ninjunction by its terms prohibits.” Id. at 378. The Court\nreserved the question “whether the governmental interests\ninvolved would ever justify some sort of zone of separation\nbetween individuals entering the clinics and protesters,\nmeasured by the distance between the two.” Id. at 377 (em-\nphasis added).\n 2. Hill v. Colorado\n The Court returned to this subject in Hill, this time re-\nviewing a generally applicable law rather than a targeted\ninjunction. As we’ve noted, Chicago’s bubble ordinance is\nidentical to the Colorado law at issue in Hill except for the\nradius within which the no-approach zone applies. Because\nHill is decisive here, the decision merits close review.\n The Court began with the question of content neutrality,\nobserving that the 8-foot bubble zone “is not a regulation of\nspeech” but instead is simply “a regulation of the places\nwhere some speech may occur.” Hill, 530 U.S. at 719. And\nthe Colorado law, the Court said, was not content based\nbecause it “was not adopted because of disagreement with\nthe message the speech conveys” but rather to ensure clinic\naccess, protect patient privacy, and “provid[e] the police\nwith clear guidelines.” Id. at 719–20 (quotation marks and\nalteration omitted).\n The challengers argued that the law was content based\nbecause enforcement authorities would have to examine the\ncontent of the statements made by an approaching speaker\nto determine if a violation of the statute occurred. Id. at 720.\nThe Court disagreed, saying that the law “places no re-\nstriction on—and clearly does not prohibit—either a particu-\nlar viewpoint or any subject matter that may be discussed by\n\f12 No. 17-2196\n\na speaker. Rather, it simply establishes a minor place re-\nstriction on an extremely broad category of communications\nwith unwilling listeners.” Id. at 723. The Court added: “[W]e\nhave never suggested that the kind of cursory examination\nthat might be required to exclude casual conversation …\nwould be problematic.” Id. at 722. On these understandings,\nthe Court ruled that the bubble-zone law was properly\nclassiﬁed as a content-neutral time, place, or manner regula-\ntion of speech and did not require strict scrutiny. Id. at 725.\n Applying intermediate scrutiny, the Court held that\nColorado’s objectives—preserving clinic access and protect-\ning patients from unwelcome speech—count as signiﬁcant\ngovernmental interests, and an 8-foot ﬂoating bubble zone\nwithin 100 feet of a clinic entrance is a narrowly tailored\nmeans to serve them. Id. at 726–30. The Court distinguished\nthe Colorado law from the no-approach zone it had invali-\ndated just three years earlier: “Unlike the 15-foot zone in\nSchenck, this 8-foot zone allows the speaker to communicate\nat a ‘normal conversational distance.’” Id. at 726–27 (quoting\nSchenck, 519 U.S. at 377)). The Court acknowledged that the\n“burden on the ability to distribute handbills is more seri-\nous,” but that diﬃculty did not doom the Colorado law. Id.\nat 727. The 8-foot buﬀer zone, the Court said, did not “pre-\nvent a leaﬂetter from simply standing near the path of\noncoming pedestrians and proﬀering his or her material,\nwhich the pedestrians [could] easily accept.” Id.\n Rounding out its narrow-tailoring analysis, the Court re-\njected the argument that Colorado could achieve its objec-\ntives through less restrictive means—say by enforcing its\npreexisting laws against harassment, disorderly conduct,\nand battery, as Justice Kennedy posited in dissent. Id. at 729;\n\fNo. 17-2196 13\n\nid. at 777–78 (Kennedy, J., dissenting). As the Court put it,\nthe statute’s “prophylactic aspect” was justiﬁed based on the\n“great diﬃculty” of protecting abortion clinics and their\npatients via “legal rules that focus exclusively on the indi-\nvidual impact of each instance of behavior.” Id. at 729.\n 3. McCullen v. Coakley\n Hill was decided in 2000. No new buﬀer-zone case\nreached the Court until McCullen in 2014. At issue was a\nMassachusetts law imposing a ﬁxed 35-foot buﬀer zone\naround the entrance, exit, and driveway of every abortion\nclinic in the state. McCullen, 134 S. Ct. at 2526. Certain per-\nsons were exempt and could freely enter the zone: those\nentering or leaving the clinic; employees or agents of the\nclinic; law enforcement, ﬁreﬁghters, construction and utility\nworkers, and other municipal agents; and persons using the\nsidewalk or public way to reach a destination other than the\nclinic. Everyone else was kept out on pain of criminal penal-\nty. Id.\n As here, pro-life sidewalk counselors challenged the law.\nId. at 2527. They argued that the buﬀer-zone law was a\ncontent-based restriction on speech and required strict\nscrutiny. The Court disagreed. First, the Court noted that\n“the Act does not draw content-based distinctions on its\nface.” Id. at 2531. To be sure, the Court explained, the\nMassachusetts law “would be content based if it required\nenforcement authorities to examine the content of the mes-\nsage that is conveyed to determine whether a violation has\noccurred.” Id. (quotation marks omitted). But enforcement of\nthe law turned not on what people said while in the buﬀer\nzone “but simply on where they sa[id] it.” Id. “Indeed,” the\nCourt said, “[a person could] violate the Act merely by\n\f14 No. 17-2196\n\nstanding in a buﬀer zone, without displaying a sign or\nuttering a word.” Id.\n The Court continued:\n To be clear, the Act would not be content neu-\n tral if it were concerned with [the] undesirable\n eﬀects that arise from the direct impact of\n speech on its audience or listeners’ reactions to\n speech. … If, for example, the speech outside\n Massachusetts abortion clinics caused oﬀense\n or made listeners uncomfortable, such oﬀense\n or discomfort would not give the Common-\n wealth a content-neutral justiﬁcation to restrict\n the speech.\nId. at 2531–32 (citation, quotation marks, and alteration\nomitted). In the end the Court concluded that the justiﬁca-\ntions for the law—“ensuring safety and preventing obstruc-\ntion” at clinic entrances—“are, as a general matter, content\nneutral.” Id. at 2532.\n But the Massachusetts buﬀer-zone law did not survive\nintermediate scrutiny. Citing Schenck and Madsen (but not\nHill), the Court held that the Commonwealth’s safety and\naccess objectives were suﬃciently weighty under the inter-\nmediate standard of review. Id. at 2535. “At the same time,”\nhowever, “the buﬀer zones impose serious burdens on [the\nsidewalk counselors’] speech.” Id. Relying again on Schenck,\nthe Court observed that the ﬁxed 35-foot buﬀer zone made it\n“substantially more diﬃcult” for sidewalk counselors to\n“distribute literature to arriving patients” and to engage in\nthe kind of personal and compassionate conversations\nrequired for their messages to be heard. Id. at 2536.\n\fNo. 17-2196 15\n\n Amplifying the theory behind the intermediate standard\nof scrutiny, the Court signiﬁcantly clariﬁed the role of the\nnarrow-tailoring requirement:\n The tailoring requirement does not simply\n guard against an impermissible desire to cen-\n sor. The government may attempt to suppress\n speech not only because it disagrees with the\n message being expressed, but also for mere\n convenience. Where certain speech is associat-\n ed with particular problems, silencing the\n speech is sometimes the path of least re-\n sistance. But by demanding a close ﬁt between\n ends and means, the tailoring requirement\n prevents the government from too readily sac-\n riﬁcing speech for eﬃciency.\nId. at 2534 (quotation marks and alteration omitted). In other\nwords, “[f]or a content-neutral time, place, or manner\nregulation to be narrowly tailored, it must not ‘burden\nsubstantially more speech than is necessary to further the\ngovernment’s legitimate interests.’” Id. at 2535 (quoting\nWard, 491 U.S. at 799). Put in more positive terms, “[t]o meet\nthe requirement of narrow tailoring, the government must\ndemonstrate that alternative measures that burden substan-\ntially less speech would fail to achieve [its] interests, not\nsimply that the chosen route is easier.” Id. at 2540.\n Against these background principles of narrow tailoring,\nthe 35-foot ﬁxed buﬀer zone ﬂunked the test. “A painted line\non the sidewalk is easy to enforce, but the prime objective of\nthe First Amendment is not eﬃciency.” Id. Massachusetts\nhad less restrictive regulatory options to ensure access to\nabortion clinics and prevent harassment of patients: existing\n\f16 No. 17-2196\n\nstate and local laws banning obstruction of clinic entrances;\n“generic criminal statutes forbidding assault, breach of the\npeace, trespass, vandalism, and the like”; and targeted\ninjunctions like those in Schenck and Madsen. Id. at 2538. But\nthe Commonwealth had not shown that “it seriously under-\ntook to address the problem with less intrusive tools readily\navailable to it.” Id. at 2539.\n “Given the vital First Amendment interests at stake, it is\nnot enough for Massachusetts simply to say that other\napproaches have not worked.” Id. at 2540. The Court con-\ncluded that “[t]he buﬀer zones burden substantially more\nspeech than necessary to achieve the Commonwealth’s\nasserted interests.” Id. at 2537.\n The Court closed with this:\n [The sidewalk counselors] wish to converse\n with their fellow citizens about an important\n subject on the public streets and sidewalks—\n sites that have hosted discussions about the is-\n sues of the day throughout history. [Massachu-\n setts] assert[s] undeniably signiﬁcant interests\n in maintaining public safety on those same\n streets and sidewalks, as well as in preserving\n access to adjacent healthcare facilities. But here\n the Commonwealth has pursued those inter-\n ests by the extreme step of closing a substantial\n portion of a traditional public forum to all\n speakers. It has done so without seriously ad-\n dressing the problem through alternatives that\n leave the forum open for its time-honored pur-\n poses. The Commonwealth may not do that\n consistent with the First Amendment.\n\fNo. 17-2196 17\n\nId. at 2541.\n 4. Reed v. Town of Gilbert\n One more case is important to the current doctrinal land-\nscape, though it did not involve an abortion-clinic buﬀer\nzone. Reed was a First Amendment challenge to the Sign\nCode in the Town of Gilbert, Arizona, which classiﬁed signs\nby the type of information they conveyed and regulated each\ncategory diﬀerently. 135 S. Ct. at 2224–25. For example,\n“Ideological Signs”—deﬁned as any sign “communicating a\nmessage or idea[] for noncommercial purposes” other than\nconstruction signs, directional signs, and certain other\ncategories—were treated most favorably. Id. at 2224. “Politi-\ncal Signs”—any “temporary sign designed to inﬂuence the\noutcome of an election”—were treated less favorably than\nIdeological Signs. Id. “Temporary Directional Signs” were\nregulated most heavily. Id. at 2225.\n The Court began with an important clariﬁcation of the\ncontent-neutrality inquiry. First, a “regulation of speech is\ncontent based if a law applies to particular speech because of\nthe topic discussed or the idea or message conveyed.” Id. at\n2227. The Court explained that the threshold question in the\ntest for content neutrality is whether the challenged regula-\ntion “on its face draws distinctions based on the message a\nspeaker conveys.” Id. (quotation marks omitted). The Court\ncontinued: “Some facial distinctions based on a message are\nobvious, deﬁning regulated speech by particular subject\nmatter, and others are more subtle, deﬁning regulated\nspeech by its function or purpose. Both are distinctions\ndrawn based on the message a speaker conveys” and require\nstrict scrutiny. Id.\n\f18 No. 17-2196\n\n The Court then identiﬁed a “separate and additional cat-\negory of laws that, though facially content neutral, will be\nconsidered content-based regulations of speech: laws that\ncannot be justiﬁed without reference to the content of the\nregulated speech[] or … were adopted by the government\nbecause of disagreement with the message the speech con-\nveys.” Id. (emphasis added) (quotation marks and alteration\nomitted). Laws of this type also get strict judicial scrutiny. Id.\nat 2227.\n On this illumination of the concept of content neutrality,\nthe Court ruled that the Town’s Sign Code “is content based\non its face.” Id. The Town’s regulatory requirements for “any\ngiven sign … depend entirely on the communicative content\nof the sign.” Id. As the Court put it:\n If a sign informs its reader of the time and\n place a book club will discuss John Locke’s\n Two Treatises of Government, that sign will be\n treated diﬀerently from a sign expressing the\n view that one should vote for one of Locke’s\n followers in an upcoming election, and both\n signs will be treated diﬀerently from a sign ex-\n pressing an ideological view rooted in Locke’s\n theory of government.\nId.\n The Town insisted that strict scrutiny did not apply be-\ncause it had not discriminated between particular ideas or\nviewpoints within each sign category. The Court resound-\ningly rejected that position: “A law that is content based on\nits face is subject to strict scrutiny regardless of the govern-\nment’s benign motive, content-neutral justiﬁcation, or lack of\n\fNo. 17-2196 19\n\nanimus toward the ideas contained in the regulated speech.”\nId. at 2228 (quotation marks omitted). Put somewhat more\ndirectly: “[A] speech regulation targeted at speciﬁc subject\nmatter is content based even if it does not discriminate\namong viewpoints within that subject matter.” Id. at 2230.\n The Town could not defend its Sign Code under strict\nscrutiny. The Court assumed for the sake of argument that\nthe Town’s objectives—aesthetics and traﬃc safety—were\ncompelling enough to satisfy this most exacting standard of\nreview. Id. at 2231. But the Code’s content-based distinctions\nwere “hopelessly underinclusive.” Id. The Town could not\nexplain how its interests in beautiﬁcation and safety were\nfurthered by strictly limiting temporary directional signs but\nallowing other types of signs to proliferate. Id. “In light of\nthis underinclusiveness,” the Court held, “the Town has not\nmet its burden to prove that its Sign Code is narrowly\ntailored to further a compelling governmental interest.” Id.\nat 2232.\nC. Hill After Reed and McCullen\n Hill is incompatible with current First Amendment doc-\ntrine as explained in Reed and McCullen. To begin, Hill\nstarted from the premise that “[t]he principal inquiry in\ndetermining content neutrality … is whether the govern-\nment has adopted a regulation of speech because of disa-\ngreement with the message it conveys.” 530 U.S. at 719\n(quoting Ward, 491 U.S. at 791). After Reed that’s no longer\ncorrect. We now know that the ﬁrst step in the content-\nneutrality inquiry is to ask whether the challenged law is\n“content based on its face.” Reed, 135 S. Ct. at 2228.\n\f20 No. 17-2196\n\n As Reed explained, a “separate and additional category” of\ncontent-based laws includes facially neutral laws that “can-\nnot be justiﬁed without reference to the content of the regu-\nlated speech[] or … were adopted because of disagreement\nwith the message the speech conveys.” Id. at 2227 (emphases\nadded) (quotation marks and alteration omitted). But “an\ninnocuous justiﬁcation cannot transform a facially content-\nbased law into one that is content neutral.” Id. at 2228.\n“Because strict scrutiny applies either when a law is content\nbased on its face or when the purpose and justiﬁcation for\nthe law are content based, a court must evaluate each ques-\ntion before it concludes that the law is content neutral and\nthus subject to a lower level of scrutiny.” Id. (emphases\nadded).\n In fairness, Hill did not completely ignore the actual text\nof the Colorado statute. Though not clearly delineated, its\nfacial analysis was twofold. The Court ﬁrst concluded that\nColorado’s bubble-zone law was content neutral because it\ndidn’t restrict “either a particular viewpoint or any subject\nmatter that may be discussed by a speaker.” Hill, 530 U.S. at\n723. In other words, the absence of viewpoint or subject-\nmatter discrimination was a suﬃcient indicator of content\nneutrality. Second, the Court dismissed the fact that en-\nforcement authorities had to examine the content of an\napproaching speaker’s statements to determine if a violation\nof the law had occurred: “We have never held, or suggested,\nthat it is improper to look at the content of an oral or written\nstatement in order to determine whether a rule of law ap-\nplies to a course of conduct.” Id. at 721.\n Neither rationale survives McCullen and Reed. McCullen\nexplained in no uncertain terms that a law is indeed content\n\fNo. 17-2196 21\n\nbased if enforcement authorities must “examine the content\nof the message that is conveyed to determine whether a\nviolation has occurred.” 134 S. Ct. at 2531 (quotation marks\nomitted). And Reed clariﬁed that the lack of viewpoint or\nsubject-matter discrimination does not spare a facially\ncontent-based law from strict scrutiny. 135 S. Ct. at 2230. As\nwe explained shortly after Reed was decided, the Court has\n“eﬀectively abolishe[d] any distinction between content\nregulation and subject-matter regulation. Any law distin-\nguishing one kind of speech from another by reference to its\nmeaning now requires a compelling justiﬁcation.” Norton v.\nCity of Springﬁeld, 806 F.3d 411, 412 (7th Cir. 2015). In the\nwake of McCullen and Reed, it’s not too strong to say that\nwhat Hill explicitly rejected is now prevailing law.\n There is more. Reed explained that a law is content based\nif it draws “more subtle” facial distinctions like those that\n“deﬁn[e] regulated speech by its function or purpose.” 135 S.\nCt. at 2227. By its terms, the law upheld in Hill regulates\nspeech undertaken “for the purpose of … engaging in oral\nprotest, education, or counseling.” 530 U.S. at 707 (emphasis\nadded) (quotation marks omitted). And divining purpose\nclearly requires enforcement authorities “to examine the\ncontent of the message that is conveyed.” McCullen, 134 S.\nCt. at 2531 (quotation marks omitted). How else could the\nauthorities distinguish between a sidewalk counselor (ille-\ngal) and a panhandler, a pollster, or a passerby who asks for\nthe time (all legal)?\n Here’s another incongruity between Hill and the Court’s\ncurrent jurisprudence. McCullen emphasized that a law is\ncontent based if it is “concerned with [the] undesirable\neﬀects that arise from the direct impact of speech on its\n\f22 No. 17-2196\n\naudience or listeners’ reactions to speech.” 134 S. Ct. at 2531–\n32 (quotation marks and alteration omitted). Yet Hill repeat-\nedly cited concern for listeners’ reactions as an acceptable\njustiﬁcation for Colorado’s bubble-zone law. True, the Court\nalso mentioned concerns about clinic access and safety, but\nthat does not diminish its emphasis on Colorado’s interest in\n“protect[ing] listeners from unwanted communication” and\nsafeguarding the right “to be let alone.” 530 U.S. at 715–16,\n724 (quotation marks omitted). Indeed, the Court highlight-\ned the “emotional harm suﬀered when an unwelcome\nindividual delivers a message … at close range.” Id. at 718\nn.25. The bubble-zone law upheld in Hill was aimed in\nsubstantial part at guarding against the undesirable eﬀects\nof the regulated speech on listeners. After McCullen that’s\nnot a content-neutral justiﬁcation.\n Finally, Hill’s narrow-tailoring analysis conﬂicts with\nMcCullen’s insistence that “the government must demon-\nstrate that alternative measures that burden substantially\nless speech would fail to achieve [its] interests, not simply\nthat the chosen route is easier.” 134 S. Ct. at 2540. Recall\nMcCullen’s exhortation against the use of broad prophylactic\nregulations in speech-sensitive zones: “A painted line on the\nsidewalk is easy to enforce, but the prime objective of the\nFirst Amendment is not eﬃciency. … Given the vital First\nAmendment interests at stake, it is not enough for\nMassachusetts simply to say that other approaches have not\nworked.” Id. In stark contrast, Hill speciﬁcally approved the\n“bright-line prophylactic” aspect of Colorado’s bubble-zone\nlaw precisely because other less restrictive measures—e.g.,\nlaws against harassment and breach of the peace—were\nharder to enforce. 530 U.S. at 729.\n\fNo. 17-2196 23\n\n In short, McCullen and Reed have deeply shaken Hill’s\nfoundation. Yet the case remains on the books and directly\ncontrols here. The plaintiﬀs urge us to follow the Third\nCircuit’s lead in Bruni v. City of Pittsburgh, which reversed\nthe dismissal of a challenge to Pittsburgh’s ﬁxed 15-foot\nclinic buﬀer zone and remanded for a case-speciﬁc narrow-\ntailoring analysis in light of McCullen. 824 F.3d 353, 372–73\n(3d Cir. 2016). The court held that dismissal at the pleading\nstage was improper based on McCullen’s “important clariﬁ-\ncation of the rigorous and fact-intensive nature of intermedi-\nate scrutiny’s narrow-tailoring analysis.” Id. at 372. This was\nso, the court held, notwithstanding circuit precedent that\nupheld Pittsburgh’s 15-foot buﬀer zone just a few years\nearlier. Id. at 367–73 (distinguishing Brown v. City of\nPittsburgh, 586 F.3d 263 (3d Cir. 2009)).\n We do not regard Bruni’s approach as a viable option\nhere. As we’ve noted, Chicago’s bubble-zone ordinance is a\ncarbon copy of the Colorado law upheld in Hill except for\nthe smaller radius within which it applies. And Hill’s\nnarrow-tailoring analysis was highly generalized; it did not\nrest on the speciﬁc facts of the case or an evaluation of\nColorado’s evidentiary showing. Accordingly, a remand for\na case-speciﬁc narrow-tailoring analysis would eﬀectively\ndeny Hill’s controlling force.\n It would also create a circuit split. In Brown, the prede-\ncessor case to Bruni, the Third Circuit upheld a separate\nprovision in Pittsburgh’s abortion-clinic law establishing an\n8-foot no-approach bubble zone within a 100-foot radius of\nclinic entrances—“a virtually verbatim copy of the Hill\nstatute”—without requiring a factual showing from the City.\n586 F.3d at 273. Bruni left that part of Brown untouched.\n\f24 No. 17-2196\n\n Hill directly controls, notwithstanding its inconsistency\nwith McCullen and Reed. Only the Supreme Court can bring\nharmony to these precedents. The district judge correctly\ndismissed the facial First Amendment challenge.\nD. Due-Process Vagueness Claim\n In a cursory ﬁnal argument, the plaintiﬀs maintain that\nChicago’s bubble-zone ordinance is unconstitutionally\nvague. This argument too is foreclosed by Hill, which reject-\ned a vagueness challenge to Colorado’s bubble-zone law.\n530 U.S. at 732–33. The plaintiﬀs rely on Justice Kennedy’s\ndissenting position: “In the context of a law imposing crimi-\nnal penalties for pure speech, ‘protest’ is an imprecise word;\n‘counseling’ is an imprecise word; ‘education’ is an impre-\ncise word.” Id. at 773 (Kennedy, J., dissenting). Perhaps he\nwas right, but his view did not carry the day. The judge\nproperly dismissed the due-process vagueness claim.\n III. Conclusion\n The road the plaintiﬀs urge is not open to us in our hier-\narchical system. Chicago’s bubble-zone ordinance is materi-\nally identical to—indeed, is narrower than—the law upheld\nin Hill. While the Supreme Court has deeply unsettled Hill, it\nhas not overruled the decision. So it remains binding on us.\nThe plaintiﬀs must seek relief in the High Court.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367676/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT	GRIESBACH	1	{"SYKES": ", Circuit", "BARRETT": ", Circuit", "GRIESBACH": ", Chief District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590423/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,424		Kurt Cornielsen v. Infinium Capital Management	2019-02-13	17-2583	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.", "parties": "", "opinions": [{"author": "Chief District Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐2583 \nKURT V. CORNIELSEN, et al., \n Plaintiffs‐Appellants, \n \n\n v. \n\nINFINIUM CAPITAL \nMANAGEMENT, LLC, et al., \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 14‐cv‐00098 — Andrea R. Wood, Judge. \n ____________________ \n\n ARGUED FEBRUARY 13, 2018 — DECIDED FEBRUARY 13, 2019 \n ____________________ \n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, \nChief District Judge.* \n\n\n\n\n \n * Of the Eastern District of Wisconsin, sitting by designation. \n\f2 No. 17‐2583 \n\n GRIESBACH, District Judge. Plaintiffs‐appellants, 39 former \nemployees of Infinium Capital Management, LLC, voluntar‐\nily converted loans they had made to their employer under \nthe company’s Employee Capital Pool program into equity in \nthe company. A year later their redemption rights were sus‐\npended, and six months after that, they were told their invest‐\nments were worthless. Plaintiffs filed suit against their em‐\nployer, the holding company that owned their employer, and \nseveral members of the senior management, asserting claims \nfor federal securities fraud and state law claims for breach of \nfiduciary duty and fraud. This appeal is from the district \ncourt’s order dismissing with prejudice their fifth amended \ncomplaint for failure to state a claim. For the reasons that fol‐\nlow, we affirm. \n I. Background \n Infinium is a diversified alternative asset and risk manage‐\nment firm with offices in Chicago, Houston, New York, and \nLondon. It trades exchange‐traded and centrally cleared fi‐\nnancial instruments offering fundamental arbitrage strate‐\ngies. Infinium Capital Holdings is a holding company that \nowned Infinium. To simplify and for clarity, we refer to both \nas Infinium. \n Prior to 2012, Infinium created the Employee Capital Pool, \nthrough which Plaintiffs collectively loaned the company just \nover $5 million. After a profitable year in 2011, Infinium in‐\nvited capital pool participants to convert their loans into eq‐\nuity as Class B‐2 shareholders in Infinium through an “Equity \nConversion” program. Capital pool participants received no‐\ntice of the Equity Conversion opportunity by e‐mail on Feb‐\nruary 14, 2012. Members of Infinium’s senior management—\nCharles Whitman, Gregory Eickbush, Brian Johnson, and \n\fNo. 17‐2583 3 \n\nScott Rose (collectively, the Individual Defendants)—subse‐\nquently conducted three “town hall” meetings about the pro‐\nposal. Those meetings occurred on February 16, 17, and 22, \n2012, and each Plaintiff attended at least one meeting. \n Plaintiffs claim that the Individual Defendants made sev‐\neral misrepresentations and omissions at the three town hall \nmeetings that induced them to participate in the Equity Con‐\nversion. Plaintiffs allege the Individual Defendants stated \nthere would be a single class of equity in Infinium and that all \ncurrent and future equity holders would receive equal treat‐\nment; whereas in fact, Infinium was seeking the infusion of \nnew funds from third‐party investors and offered those inves‐\ntors superior rights to all other equity holders in Infinium and \nguaranteed the equity of those investors from certain losses. \nPlaintiffs also allege the Individual Defendants stated that In‐\nfinium had access to an untapped $20 million line of credit \nthat it could use to pay down debt owed to George Hanley \nand Nathan Laurell, two members of Infinium’s advisory \nboard who were in the process of redeeming their equity in \nInfinium. Finally, the Individual Defendants allegedly also \ntold meeting attendees that those who participated in the Eq‐\nuity Conversion would receive two free months of profit for \nJanuary and February 2012, when in fact, Infinium had lost \n$4.3 million during that period and there was no profit for \nthose months as a result. In addition, in the course of soliciting \nthe conversion of their loans to equity, Infinium wrote to \nPlaintiffs and explained that Plaintiffs would be able to re‐\ndeem 50% any monies converted from debt to equity or oth‐\nerwise invested by Plaintiffs in the first year (2013) and 50% \nin the following year (2014), with the ability to withdraw all \nof their equity investments in just two years. \n\f4 No. 17‐2583 \n\n Participants in the capital pool also received a Private \nPlacement Memorandum (PPM) on February 14, 2012, detail‐\ning the risks of the Equity Conversion. The PPM made exten‐\nsive disclosures about the risks to Plaintiffs’ investments and \nthe nature of the interests in Infinium they would obtain if \nthey chose to participate in the Equity Conversion. It dis‐\nclosed that Equity Conversion participants would “not have \nvoting rights,” meaning their interests would not permit them \n“to elect or remove members of the Board” and they would \nnot “have any ability to affect the management of the com‐\npany.” The PPM also contradicted certain statements Plain‐\ntiffs allege the Individual Defendants made during the town \nhall meetings. For instance, with regard to Infinium’s debts, \nthe PPM disclosed that Plaintiffs’ equity interests would be \n“junior in right of payment” to Infinium’s “secured and unse‐\ncured debts, including commercial lines of credit” and “any \nother debt securities [Infinium] may issue in the future.” The \ndisclosures were particularly forthright about risks from a \n$53 million debt related to the redemption of equity interests \nin Infinium held by George Hanley and Nathan Laurell: “This \nwill cause a significant change in the capital structure of In‐\nfinium, and could constrain or even eliminate Infinium’s abil‐\nity to obtain financing for its business pursuits. The servicing \nof this debt will constrain Infinium’s available capital and \ncould have a material adverse effect on Infinium’s business.” \n Also disclosed in the PPM were limitations on the partici‐\npants’ redemption of capital, only 50% of which would be \navailable for redemption after one year, with the remainder \navailable after a second. The PPM explicitly stated that those \nredemption rights could be limited or suspended by the \nboard under certain circumstances, such as if redemption \n\fNo. 17‐2583 5 \n\nwould prevent the company from complying with regula‐\ntions requiring it to hold a particular amount of capital. In ad‐\ndition, the company would have “broad discretion in using \nthe proceeds” from the Equity Conversion and, indeed, might \n“not use them in a manner Investors would prefer.” \n The PPM also referred to the LLC Agreement for Infinium \nas well as a Subscription Agreement, both of which were at‐\ntached as exhibits. The LLC Agreement provided details \nabout the structure of Infinium, including information de‐\nscribed in the PPM, such as capital redemption rules and the \nnature of participants’ equity interests. The Subscription \nAgreement set forth several representations and warranties, \nincluding that the Equity Conversion participant could “bear \nthe economic risk of losing the … entire investment.” The \nAgreement confirmed that each Equity Conversion partici‐\npant was furnished with the LLC Agreement, the Joinder, the \nPPM, and other documents, materials, and information as he \nor she deemed necessary for evaluating whether to invest in \nthe company. The Subscription Agreement also contained a \nnon‐reliance clause which stated: “[I]n entering into this \ntransaction the undersigned is not relying upon any infor‐\nmation other than that contained in the LLC Agreement, the \nJoinder and the results of the undersigned’s own independent \ninvestigation.” All Equity Conversion participants were re‐\nquired to sign the Subscription Agreement. \n Plaintiffs allege they were told that, if they did not elect to \nparticipate in the Equity Conversion by March 2, 2012, then \ntheir loans would be repaid during 2012. Thereafter, Plaintiffs \nallege, those who opted against taking part in the Equity Con‐\nversion would no longer be able to participate in a permanent, \nstructured vehicle to share in the company’s growth. Prior to \n\f6 No. 17‐2583 \n\nthe March 2nd deadline, Plaintiffs allege that the Individual \nDefendants represented to some Plaintiffs that Infinium \nwould still have nearly $50 million in equity after Hanley and \nLaurell redeemed their own equity interests. Ultimately, \nevery Plaintiff elected to participate in the Equity Conversion \nand, collectively, converted more than $5 million from capital \npool loans into equity in Infinium. Some Plaintiffs chose to \ninvest additional funds in excess of loans already made \nthrough the capital pool. \n According to Plaintiffs, Infinium’s financial position was \nfar worse than represented to them when they agreed to par‐\nticipate in the Equity Conversion. During an April 2015 dep‐\nosition conducted by the Securities and Exchange Commis‐\nsion (SEC), Plaintiff Gordon Wallace allegedly saw certain \nconfidential documents authored or received by the Individ‐\nual Defendants pertaining to Infinium’s financial situation in \nthe weeks before the Equity Conversion. According to Plain‐\ntiffs, the documents showed that Infinium was insolvent and \non the verge of bankruptcy at that time and had already \ndrawn down $6 million on the $20 million line of credit men‐\ntioned at the town hall meetings. Infinium’s management \nteam thus feared that its lender would require immediate re‐\npayment of the line of credit, an impossibility due to the com‐\npany’s insolvency. Moreover, Plaintiffs allege that the docu‐\nments showed that Infinium had already incurred losses of \n$4.3 million during January and February 2012. The docu‐\nments also allegedly demonstrated that, before the Equity \nConversion, Infinium lacked the resources to repay the capital \npool loans, to allow Hanley and Laurell to redeem their eq‐\nuity, or even to sustain the trading activities necessary to gen‐\nerate profits. As further indication of Infinium’s poor finan‐\ncial circumstances during early 2012, Plaintiffs allege that in \n\fNo. 17‐2583 7 \n\nlate 2011 two of the Individual Defendants, Charles Whitman \nand Brian Johnson, privately made undisclosed redemptions \nof their own equity in Infinium. \n Infinium’s financial difficulties continued throughout \n2012, culminating in losses for the year in excess of $6.5 mil‐\nlion. On March 8, 2013, Infinium suspended Plaintiffs’ rights \nto redeem their capital on the ground that the company was \nin default of its debt service obligations to Hanley and Laurell. \nDuring an “investor call” with Plaintiffs on September 1, 2013, \nInfinium’s acting CEO revealed that the money invested by \nthe Equity Conversion participants had become “worthless,” \nwith a value of negative $18 million. At that time, Plaintiffs \nalso learned that, to prevent a hostile takeover by Hanley, In‐\nfinium had not only converted a portion of the debt owed to \nHanley and Laurell into equity but also agreed to eliminate \nPlaintiffs’ right to redeem their investments. Additionally, \nPlaintiffs learned during the call about a class of equity con‐\nsisting of money invested by third‐parties that was superior \nto Plaintiffs’ equity and protected from certain losses. Infin‐\nium sought additional outside investment during February \n2013. \n Plaintiffs filed this action in the Northern District of Illi‐\nnois in January 2014. Their complaint alleged claims for fed‐\neral securities fraud under Section 10(b) of the Securities Ex‐\nchange Act of 1934 and SEC Rule 10b‐5. See 15 U.S.C. § 78j; 17 \nC.F.R. § 240.10b‐5. The complaint also included common law \nclaims for fraud and breach of fiduciary duty. Essentially, \nPlaintiffs alleged that during the three February 2012 town \nhall meetings Infinium, through its management, made vari‐\nous misrepresentations and omissions regarding the Equity \nConversion proposal and Infinium’s financial condition that \n\f8 No. 17‐2583 \n\nhad a material effect on Plaintiffs’ decisions to convert their \nloans into equity. \n Although Plaintiffs amended their complaint several \ntimes (once as a matter of right and subsequently with leave \nof the court), the district court granted motions dismissing the \nsecond and fourth amended complaints. Both dismissals were \nwithout prejudice. After Plaintiffs filed a fifth amended com‐\nplaint, the district court issued an order in July 2017 granting \nyet another motion to dismiss, this time with prejudice. \n In dismissing the fifth amended complaint, the district \ncourt explained that Plaintiffs’ most recent amendments \nfailed to correct deficiencies that the court had previously \nidentified. The court noted that it dismissed the second and \nfourth amended complaints because Plaintiffs “insufficiently \npleaded scienter, failed to identify the speakers of the alleged \nmisrepresentations with particularity, and failed to plead a \nduty to speak with respect to the alleged material omissions.” \nYet the fifth amended complaint made no changes in the \npleading of scienter, made only conclusory allegations that \nthe defendants had a duty to speak with regard to the alleged \nomissions, and made only cosmetic rather than substantive \nchanges in an attempt to identify with particularity which In‐\ndividual Defendants made the alleged misrepresentations. \nPlaintiffs now appeal the dismissal with prejudice of the fifth \namended complaint. \n II. Analysis \n We review de novo a district court’s grant of a motion to \ndismiss for failure to state a claim. Calderon‐Ramirez v. McCa‐\nment, 877 F.3d 272, 275 (7th Cir. 2017). Before addressing the \narguments raised by Plaintiffs, we turn first to the argument \n\fNo. 17‐2583 9 \n\nby Infinium and the Individual Defendants that the non‐reli‐\nance clause in the Subscription Agreement requires dismissal \nregardless of whether the fifth amended complaint ade‐\nquately stated a claim for relief. \nA. The Non‐Reliance Clause \n In support of their motions to dismiss the second, fourth, \nand fifth amended complaints, Infinium and the Individual \nDefendants argued that, even if Plaintiffs stated a claim, the \nnon‐reliance clause contained in the Subscription Agreement \nrequires dismissal. The district court did not address this ar‐\ngument when dismissing any of the complaints. Citing Riss‐\nman v. Rissman, 213 F.3d 381 (7th Cir. 2000), the defendants \nargue that, as a matter of law, Plaintiffs’ claimed reliance on \noral statements made at the town hall meetings was unrea‐\nsonable in light of the Subscription Agreement’s non‐reliance \nclause, through which each Plaintiff indicated he or she was \nnot relying upon any information other than that contained in \nthe LLC Agreement, the Joinder, and the results of his or her \nown independent investigation. \n In Rissman, this court concluded that several non‐reliance \nclauses in a private stock sale agreement prevented a plaintiff \nfrom bringing a federal securities fraud claim alleging that he \nsold his shares in a family company based on his brother’s \ndeceitful assurances that he would never take the company \npublic or sell it to a third party. Id. at 382–83. The court held \nthat “non‐reliance clauses in written stock‐purchase agree‐\nments preclude any possibility of damages under the federal \nsecurities laws for prior oral statements.” Id. at 383–84 (first \nciting Jackvony v. RIHT Fin. Corp., 873 F.2d 411 (1st Cir. 1989) \n(Breyer, J.); then citing One‐O‐One Enters., Inc. v. Caruso, 848 \nF.2d 1282 (D.C. Cir. 1988) (Ginsburg, J.)). Emphasizing that \n\f10 No. 17‐2583 \n\nnon‐reliance clauses are the product of any bargain negoti‐\nated between the parties, the court observed that they “en‐\nsure[] that both the transaction and any subsequent litigation \nproceed on the basis of the parties’ writings, which are less \nsubject to the vagaries of memory and the risks of fabrica‐\ntion.” Id. at 384; see also Cerabio LLC v. Wright Med. Tech., Inc., \n410 F.3d 981, 992 (7th Cir. 2005) (noting that enforcement of a \nnon‐reliance clause was particularly appropriate because “the \nparties were sophisticated commercial entities assisted by \ncounsel”); Vigortone AG Prods., Inc. v. PM AG Prods., Inc., 316 \nF.3d 641, 644–45 (7th Cir. 2002) (“[P]arties to contracts who do \nwant to head off the possibility of a fraud suit will sometimes \ninsert a ‘no‐reliance’ clause into their contract, stating that nei‐\nther party has relied on any representations made by the \nother. Since reliance is an element of fraud, the clause, if up‐\nheld—and why should it not be upheld, at least when the con‐\ntract is between sophisticated commercial enterprises—pre‐\ncludes a fraud suit … .” (internal citations omitted)). \n Each Plaintiff in this case entered into a written agreement \nthat contained ample cautionary language about the risks as‐\nsociated with the investment. In particular, the Subscription \nAgreement recognizes that Infinium is a highly speculative \nventure involving a high degree of financial risk and, as a re‐\nsult, each Equity Conversion participant must be able to bear \nthe economic risk of losing his or her entire investment. Each \nPlaintiff signed the Subscription Agreement and represented \nthat he or she was “not relying upon any information other \nthan that contained in the LLC Agreement, the Joinder and \nthe results of the undersigned’s own independent investiga‐\ntion.” Plaintiffs had every opportunity to read the agreement \nand investigate the company as he or she deemed appropriate \nto evaluate the merits and risks of the investment. Based on \n\fNo. 17‐2583 11 \n\nthis court’s decision in Rissman, the written representations in \nthe Subscription Agreement preclude Plaintiffs from now \nclaiming that they chose to participate in the Equity Conver‐\nsion because they reasonably relied on the Individual Defend‐\nants’ oral statements made during the town hall meetings. \nAlthough the district court’s dismissal of the fifth amended \ncomplaint could be affirmed in large part on this basis alone, \nthe court will address Plaintiffs’ challenges to the merits of the \ndistrict court’s decision that the complaint failed to state a \nclaim for relief. \nB. Failure to State a Claim for Federal Securities Fraud \n “A motion under Rule 12(b)(6) tests whether the com‐\nplaint states a claim on which relief may be granted.” Richards \nv. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). “To survive a Rule \n12(b)(6) motion to dismiss, a complaint must (1) describe the \nclaim in sufficient detail to give the defendant fair notice of \nthe claim and grounds on which it rests, Dura Pharmaceuticals, \nInc. v. Broudo, 544 U.S. 336, 346 (2005), and (2) contain suffi‐\ncient factual matter, accepted as true, to ‘state a claim to relief \nthat is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 672 \n(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 \n(2007)). The complaint’s “[f]actual allegations must be enough \nto raise a right to relief above the speculative level.” Twombly, \n550 U.S. at 555. \n Heightened pleading requirements apply to complaints \nalleging fraud. Federal Rule of Civil Procedure 9(b) provides \nthat a party alleging fraud or mistake “must state with partic‐\nularity the circumstances constituting fraud or mistake,” alt‐\nhough “[m]alice, intent, knowledge, and other conditions of a \nperson’s mind may be alleged generally.” This generally \nmeans “describing the ‘who, what, when, where, and how’ of \n\f12 No. 17‐2583 \n\nthe fraud.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir \n2011). The purpose of this particularity requirement is “to dis‐\ncourage a ‘sue first, ask questions later’ philosophy.” Pirelli \nArmstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., \n631 F.3d 436, 441 (7th Cir. 2011). “Greater precomplaint inves‐\ntigation is warranted in fraud cases,” we have explained, “be‐\ncause public charges of fraud can do great harm to the repu‐\ntation of a business firm or other enterprise (or individual), … \nbecause fraud is frequently charged irresponsibly by people \nwho have suffered a loss and want to find someone to blame \nfor it, … and because charges of fraud (and also mistake, the \nother charge that Rule 9(b) requires be pleaded with particu‐\nlarity) frequently ask courts in effect to rewrite the parties’ \ncontract or otherwise disrupt established relationships.” \nAckerman v. Northwestern Mut. Life Ins. Co., 172 F.3d 467, 469 \n(7th Cir. 1999) (internal citations omitted). \n To state a claim for federal securities fraud, a complaint \nmust allege “(1) a material misrepresentation or omission by \nthe defendant; (2) scienter; (3) a connection between the mis‐\nrepresentation or omission and the purchase or sale of a secu‐\nrity; (4) reliance upon the misrepresentation or omission; (5) \neconomic loss; and (6) loss causation.” Pugh v. Tribune Co., 521 \nF.3d 686, 693 (7th Cir. 2008) (citing Stoneridge Inv. Partners, \nLLC v. Scientific–Atlanta, Inc., 552 U.S. 148, 157 (2008)). Even \nbefore the enactment of the Private Securities Litigation Re‐\nform Act of 1995 (PSLRA), this court had held that securities \nfraud claims must satisfy Rule 9(b)’s particularity standard. \nSee Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990). Sec‐\ntion 21D(b)(2) of the PSLRA added the requirement that com‐\nplaints alleging securities fraud “state with particularity facts \ngiving rise to a strong inference that the defendant acted with \nthe required state of mind.” 15 U.S.C. § 78u‐4(b)(2)(A). Any \n\fNo. 17‐2583 13 \n\ncomplaint alleging a material misstatement or omission must \nalso “specify each statement alleged to have been misleading” \nand the “reason or reasons why the statement is misleading.” \nId. § 78u‐4(b)(1). \n These are the standards the district court applied in find‐\ning Plaintiffs’ fifth amended complaint insufficient. Plaintiffs \ncontend that the district court erred in three respects by dis‐\nmissing their complaint with prejudice. First, they maintain \nthat they identified with adequate particularity the alleged \nfraudulent statements and omissions by the Individual De‐\nfendants. Second, they assert that the complaint creates a \nstrong inference that the Individual Defendants acted with \nthe required state of mind. Finally, they assert that the facts \nalleged in the complaint show that Infinium and the Individ‐\nual Defendants had a duty to disclose various pieces of infor‐\nmation to them. We will address each argument in turn. \n 1. Plaintiﬀs Failed to Identify the Speakers of Alleged \n Misrepresentations with Adequate Particularity. \n To satisfy Rule 9(b)’s particularity standard, a complaint \nmust “state ‘the identity of the person who made the misrep‐\nresentation, the time, place and content of the misrepresenta‐\ntion, and the method by which the misrepresentation was \ncommunicated to the plaintiff.’” Vicom, Inc. v. Harbridge \nMerch. Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994) (internal \nquotation marks omitted) (quoting Uni*Quality, Inc. v. Info‐\ntronx, Inc., 974 F.2d 918, 923 (7th Cir. 1992)). As a result, “[a] \ncomplaint that attributes misrepresentations to all defend‐\nants, lumped together for pleading purposes, generally is in‐\nsufficient.” Sears, 912 F.2d at 893 (quoting Design Inc. v. Syn‐\nthetic Diamond Tech., Inc., 674 F. Supp. 1564, 1569 (N.D. Ill. \n1987)). \n\f14 No. 17‐2583 \n\n The district court dismissed Plaintiffs’ second amended \ncomplaint in part because it set forth only general allegations \nthat “the Defendants” made various representations at the \ntown hall meetings. Those allegations failed to establish the \nidentity of the individuals who made the alleged representa‐\ntions and therefore clearly lacked Rule 9(b)’s required partic‐\nularity. Likewise, the district court dismissed the fourth \namended complaint because it merely replaced general alle‐\ngations against “the Defendants” or “Infinium” with lists of \nthe Individual Defendants’ names—“Whitman, Eickbush, \nRose, and Johnson”—and thus provided no greater detail re‐\ngarding which individuals made which representations. It \nwas against this backdrop that the district court determined \nthat the fifth amended complaint involved a change in form \nrather than substance by replacing three counts against “all \ndefendants” and “all Individual Defendants” with thirteen \ncounts that repeated the same general allegations against each \ndefendant individually, while at the same time conceding that \nthey did not know which Individual Defendant said what. \nPlaintiffs argue, however, that the “group pleading” doctrine \npermits them to make collective allegations here because the \nIndividual Defendants made three group presentations to \nPlaintiffs as potential investors. \n Prior to enactment of the PSLRA, some circuits adopted \nthe group pleading doctrine to “allow[] plaintiffs to link cer‐\ntain defendants to alleged misrepresentations simply by \npleading that the defendants were part of the ‘group’ that \nlikely put the challenged documents together.” Southland Sec. \nCorp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 363 (5th Cir. \n2004). The Ninth Circuit first formulated the doctrine in Wool \nv. Tandem Computers Inc.: \n\fNo. 17‐2583 15 \n\n In cases of corporate fraud where the false or mislead‐\n ing information is conveyed in prospectuses, registra‐\n tion statements, annual reports, press releases, or other \n “group‐published information,” it is reasonable to pre‐\n sume that these are the collective actions of the oﬃcers. \n Under such circumstances, a plaintiﬀ fulfills the partic‐\n ularity requirement of Rule 9(b) by pleading the mis‐\n representations with particularity and where possible \n the roles of the individual defendants in the misrepre‐\n sentations. \n818 F.2d 1433, 1440 (9th Cir. 1987) (citation omitted). Since the \nenactment of the PSLRA, however, some courts have deter‐\nmined that the judicially‐created group pleading doctrine \n“cannot withstand” the PSLRA’s clear statutory prerequisites \n“that the untrue statements or omissions be set forth with par‐\nticularity as to ‘the defendant’ and that scienter be pleaded \nwith regard to ‘each fact or omission’ sufficient to give ‘rise to \na strong inference that the defendant acted with the required \nstate of mind.’” Southland, 365 F.3d at 364 (citing 15 U.S.C. \n§ 78u‐4(b)). This court has embraced that reasoning and de‐\nclined to permit group pleading in this context. See Makor Is‐\nsues & Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588, 603 (7th Cir. \n2006), rev’d on other grounds, 551 U.S. 308 (2007) (Makor I). \n Plaintiffs argue that, although this court has expressly \nrejected the group pleading doctrine with regard to group‐\npublished documents, it has not gone so far as to preclude the \ninvocation of the group pleading doctrine to oral statements. \nBut nothing in the PSLRA indicates that its particularity \nrequirements distinguish between oral and written \nstatements. Indeed, extending the group pleading doctrine to \nencompass oral representations would be inconsistent with \n\f16 No. 17‐2583 \n\nthe reasoning that originally led some courts to create an \nexception to Rule 9(b). As the Ninth Circuit explained in Wool, \nthe court deemed it reasonable to presume that information \nin promulgated written documents reflected “the collective \nactions of the officers.” 818 F.2d at 1440. The doctrine sought \nto account for the opaque nature of modern business entities \nand “the fact that an individual’s actual role in drafting and \napproving particular documents and statements cannot, in \nmany cases, be reliably deduced from their title.” Southland, \n365 F.3d at 363 n.5. Oral statements, by contrast, involve no \nsuch ambiguity; they emanate from a single person against \nwhom purportedly defrauded listeners can bring a claim \ndirectly. See, e.g., In re Interactive Network, Inc. Sec. Litig., 948 \nF. Supp. 917, 922–23 (N.D. Cal. 1996) (“The purpose of the \ndoctrine is to relieve plaintiffs the burden of proving the \nauthorship of a writing. This problem of authorship does not \narise with oral statements.”); see also William O. Fisher, Don’t \nCall Me a Securities Law Groupie: The Rise and Possible Demise of \nthe “Group Pleading” Protocol in 10b‐5 Cases, 56 BUS. LAW. 991, \n1008 n.48 (2001) (discussing courts’ refusal to apply Wool to \noral statements). This court’s determination that the group \npleading doctrine is inconsistent with the PSLRA’s \nparticularity requirements thus applies with equal weight \nregardless of the form of the alleged misrepresentation or \nomission. \n Here, all Plaintiffs attended at least one town hall meeting, \nat which they allege that they each heard oral presentations \nabout the Equity Conversion from the Individual Defendants. \nPlaintiffs’ claims are premised upon their reliance on the oral \nstatements made at the town hall meetings, despite those \nstatements being clearly contrary to the written materials \nPlaintiffs received, and yet, Plaintiffs have no recollection of \n\fNo. 17‐2583 17 \n\nwho said what, even though each Plaintiff personally ob‐\nserved which representations Whitman, Eickbush, Rose, and \nJohnson made on particular days. Plaintiffs concede that they \ncannot sufficiently plead the relationship between the partic‐\nular representations made at the town hall meetings and the \nidentity of the Individual Defendant who spoke them without \ntaking discovery. Plaintiffs contend that they repeatedly re‐\nquested that the district court allow discovery to commence \nin order to obtain the transcripts of the town hall meetings, \nbut the district court denied their motions to lift the discovery \nstay that was put into effect pursuant to the requirements of \nthe PSLRA. \n The PSLRA imposes an automatic stay on discovery while \na motion to dismiss is pending, absent exceptional circum‐\nstances. 15 U.S.C. § 78u‐4(b)(3)(B). The purpose of the provi‐\nsion is to curtail abusive litigation—it allows the court to eval‐\nuate the plaintiffs’ claims before imposing any unreasonable \nburden on the defendant and it prevents a plaintiff from \nbringing an action without first possessing the information \nnecessary to satisfy the heightened pleading requirements of \nthe PSLRA and using discovery to obtain that information \nand resuscitate a complaint that would otherwise be dis‐\nmissed. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. \n308, 313 (2007); In re Comdisco Sec. Litig., 166 F. Supp. 2d 1260, \n1263 (N.D. Ill. 2001). Plaintiffs have not argued that the district \ncourt abused its discretion in denying its motions and have \nnot addressed the court’s reasons for so ruling. Those argu‐\nments are now waived as a result. See Hentosh v. Herman M. \nFinch Univ. of Health Sci./The Chi. Med. Sch., 167 F.3d 1170, 1173 \n(7th Cir. 1999). In short, the district court reasonably deter‐\nmined that the fifth amended complaint’s new gambit of al‐\n\f18 No. 17‐2583 \n\nleging in separate but identical counts that all Individual De‐\nfendants made all misrepresentations or omissions lacked the \nparticularity required by Rule 9(b) and the PSLRA. \n 2. Plaintiﬀs Failed to Adequately Plead Scienter. \n As noted above, a federal securities fraud complaint must \n“state with particularity facts giving rise to a strong inference \nthat the defendant acted with the required state of mind.” 15 \nU.S.C. § 78u‐4(b)(2)(A). The “required state of mind” refers to \nthe element of scienter, which means “an intent to deceive, \ndemonstrated by knowledge of the statement’s falsity or reck‐\nless disregard of a substantial risk that the statement is false.” \nHigginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 756 (7th Cir. \n2007). Under the PSLRA’s “strong inference” standard, “[a] \ncomplaint will survive … only if a reasonable person would \ndeem the inference of scienter cogent and at least as compel‐\nling as any opposing inference one could draw from the facts \nalleged.” Tellabs, 551 U.S. at 324. When determining whether \na complaint creates a strong inference of scienter, “the court \nmust take into account plausible opposing inferences.” Id. at \n323. \n This circuit’s rejection of the group pleading doctrine, dis‐\ncussed above, has particular relevance for the pleading of sci‐\nenter in securities fraud cases. The PSLRA requires that the \ncomplaint “state with particularity facts giving rise to a strong \ninference that the defendant acted with the required state of \nmind.” 15 U.S.C. § 78u‐4(b)(2)(A) (emphasis added). Agree‐\ning with the Fifth Circuit, this court has observed that \n“PSLRA references to ‘the defendant’ may only reasonably be \nunderstood to mean ‘each defendant’ in multiple defendant \ncases.” Makor I, 437 F.3d at 602 (quoting Southland, 365 F.3d at \n365–66). As a result, “plaintiffs must create a strong inference \n\fNo. 17‐2583 19 \n\nof scienter with respect to each individual defendant.” Pugh, 521 \nF.3d at 693–94 (emphasis added) (citing Makor Issues & Rights, \nLtd. v. Tellabs, Inc., 513 F.3d 702, 710 (7th Cir. 2008) (Makor II)). \n The fifth amended complaint’s shortcomings in stating its \nclaims with particularity as to each Individual Defendant \ncarry over into its pleading of scienter. As the district court \nnoted in dismissing both the fourth and fifth amended com‐\nplaints, the allegation that the Individual Defendants acted \nwith an intent to deceive hinged on a single paragraph detail‐\ning the information that Plaintiff Gordon Wallace allegedly \nobtained during his April 2015 deposition by the SEC. That \nparagraph alleges that attorneys for the SEC “showed him \ndocuments authored, and/or received, by Whitman, Eick‐\nbush, Rose, and Johnson” demonstrating that the Individual \nDefendants knew various pieces of information about Infin‐\nium’s true financial situation in January and February 2012. \n Nothing about that paragraph, however, associates \nknowledge of particular information about Infinium with any \nparticular Individual Defendant, making it impossible to as‐\nsess the statements any Individual Defendant made at the \ntown hall meetings against the information he allegedly pos‐\nsessed at the time he made them. Instead, it suggests that one \nplaintiff saw documents indicating that one or more Individ‐\nual Defendants may have possessed information that im‐\npugned the truth of the representations made at the town hall \nmeetings. This court has determined, however, that a com‐\nplaint fails to satisfy the PSLRA’s particularity requirements \nby making conclusory allegations of scienter derived from a \ndefendant’s mere access to information. See Pugh, 521 F.3d at \n694 (“[T]here is a big difference between knowing about … \nreports from [a subsidiary] and knowing that the reports are \n\f20 No. 17‐2583 \n\nfalse.” (third alteration in original) (quoting Higginbotham, 495 \nF.3d at 758)). \n Analogizing to Matrixx Initiatives, Inc. v. Siracusano, 563 \nU.S. 27 (2011), Plaintiffs argue that they have pleaded ample \nfacts to create a strong inference that the Individual Defend‐\nants acted with an intent to deceive when soliciting participa‐\ntion in the Equity Conversion. Specifically, they contend that \nduring January and February 2012 the Individual Defendants \nall had significant equity interests in Infinium, knew that In‐\nfinium faced significant financial pressures, knew that pres‐\nsure on Infinium threatened their personal investments in it, \nand made knowingly false statements at the three town hall \nmeetings to secure an infusion of equity from Plaintiffs that \nwould permit the Individual Defendants to redeem a portion \nof their own investments. But Infinium and the Individual \nDefendants counter that the complaint merely shows that, af‐\nter several years of growth, Infinium presented an investment \nopportunity to its employees—sophisticated financial profes‐\nsionals—who chose to participate and then suffered the con‐\nsequences of unfavorable market conditions arising shortly \nthereafter. Because Plaintiffs’ fifth amended complaint failed \nto make adequately individualized allegations against each \nIndividual Defendant, however, we need not determine \nwhether the inference of scienter propounded by Plaintiffs is \ncogent and at least as compelling as the proposed alternative. \n 3. Plaintiﬀs Failed to Plead a Duty to Speak. \n As their final basis for reversal, Plaintiffs contend that the \ndistrict court erred in concluding that they failed to establish \nthat Infinium and the Individual Defendants had a duty to \ndisclose certain information to them. Plaintiffs contend that \nthe facts alleged support their assertion that the Individual \n\fNo. 17‐2583 21 \n\nDefendants had a “duty to speak” regarding Infinium’s finan‐\ncial condition. \n The district court’s decision dismissing the fifth amended \ncomplaint summarized Plaintiffs’ efforts to plead a duty to \nspeak. Compared to the fourth amended complaint, the fifth \namended complaint added two paragraphs alleging a duty to \nspeak: \n 65. By voluntarily disclosing material facts in connec‐\n tion with securities transactions, Defendants In‐\n finium, Whitman, Eickbush, Rose, and Johnson \n assumed a duty to speak fully and truthfully on \n those subjects. \n 66. A duty to disclose the true financial state of Infin‐\n ium arose because secret information rendered \n the public statements materially misleading. \nThe fifth amended complaint also alleged that each of the In‐\ndividual Defendants owed Plaintiﬀs “fiduciary duties … first \nto Plaintiﬀs as creditors of an insolvent corporation and then \nas shareholders after the conversion.” In dismissing the fifth \namended complaint, the district court observed that these al‐\nlegations did nothing to remedy the fourth amended com‐\nplaint’s failure to state with particularity how the alleged \nomissions rendered any aﬃrmative disclosure misleading. \n On appeal, Plaintiffs’ duty to speak argument cites no law \nand is largely undeveloped. Plaintiffs discuss Infinium’s line \nof credit as an example of an affirmative statement rendered \nmisleading by the omission of pertinent information. They \nnote that the fifth amended complaint alleges, on the one \nhand, that the Individual Defendants represented at the town \nhall meetings that Infinium had access to an untapped \n\f22 No. 17‐2583 \n\n$20 million line of credit and, on the other hand, that Plaintiff \nWallace saw documents during his April 2015 SEC deposition \nindicating that Infinium had already drawn down $6 million \non that line of credit by the time of the town hall meetings. \nAccording to Plaintiffs, they adequately pleaded facts sug‐\ngesting an omission by alleging this discrepancy between the \nrepresentations at the town hall meetings and the information \nthe Individual Defendants actually possessed at that time. \n Plaintiffs’ duty to speak argument falls short for at least \ntwo reasons. First, Plaintiffs’ allegations that the Individual \nDefendants “assumed a duty to speak” and “owed Plaintiffs \nfiduciary duties” are mere legal conclusions that the court \nneed not accept as true. Iqbal, 556 U.S. at 678 (“[T]he tenet that \na court must accept as true all of the allegations contained in \na complaint is inapplicable to legal conclusions.”). In their \nbriefing to this court, Plaintiffs have presented no legal argu‐\nment that the facts pled in the complaint gave rise to a legal \nduty to speak. \n Second, Plaintiffs’ factual allegations regarding purported \nomission suffer from the same absence of particularity that \nplagues the rest of their claims. Taking as an example the al‐\nlegations surrounding the $20 million line of credit, as Plain‐\ntiffs argue in their brief, nothing in the fifth amended com‐\nplaint associates particular knowledge with particular Indi‐\nvidual Defendants. As already discussed above, the allegation \npertaining to information learned during Plaintiff Wallace’s \nApril 2015 SEC deposition claims that Wallace saw “docu‐\nments authored, and/or received, by Whitman, Eickbush, \nRose, and Johnson” showing that they possessed several \npieces of information about Infinium’s financial position at \nthe time they made the town hall presentations. Nothing in \n\fNo. 17‐2583 23 \n\nthat allegation indicates which of the Individual Defendants \npossessed particular pieces of information that could have \nrendered his statements at the town hall meetings misleading. \nIn other words, Plaintiffs failed to link any of the alleged \nomissions to any of the statements made by the Individual \nDefendants. Consequently, the district court properly con‐\ncluded that the fifth amended complaint failed to allege with \nthe requisite particularity facts indicating that the Individual \nDefendants possessed knowledge rendering their affirmative \nrepresentations misleading at the town hall meetings. \nC. Failure to State a Claim for Breach of Fiduciary Duty and \nCommon Law Fraud \n The district court also dismissed Plaintiffs’ state law \nclaims for breach of fiduciary duty and fraud. Because Plain‐\ntiffs’ briefs did not challenge the district court’s dismissal of \nthese claims, Plaintiffs have forfeited any opportunity to do \nso. In any event, we find that the district court did not err in \ndismissing Plaintiffs’ breach of fiduciary duty and common \nlaw fraud claims. To state a claim for breach of fiduciary duty \nunder Delaware law, a plaintiff must allege that a fiduciary \nduty existed and that the defendant breached that duty. See \nStewart v. Wilmington Trust SP Servs., Inc., 112 A.3d 271, 297 \n(Del. Ch. 2015) (citation omitted). A plaintiff must plead the \nfollowing elements to state a common law fraud claim: “(1) a \nfalse representation, usually one of fact, made by the defend‐\nant; (2) the defendant’s knowledge or belief that the represen‐\ntation was false, or was made with reckless disregard of the \ntruth; (3) an intent to induce the plaintiff to act or to refrain \nfrom acting; (4) the plaintiff’s action or inaction taken in justi‐\nfiable reliance upon the representation; and (5) damage to the \nplaintiff as a result of such reliance.” Johnson v. Preferred Prof’l \n\f24 No. 17‐2583 \n\nIns. Co., 91 A.3d 994, 1017 (Del. Super. Ct. 2014) (citation omit‐\nted). Both claims are subject to Rule 9(b)’s heightened plead‐\ning requirements, as they are premised on allegations that the \ndefendants knowingly misled Plaintiffs. Plaintiffs’ claims for \nbreach of fiduciary duty and common law fraud fail for the \nsame reasons as their security fraud claim—Plaintiffs have \nneither pled the required elements of scienter nor alleged the \nfacts underlying these claims with the particularity required \nby Rule 9(b). The district court therefore correctly concluded \nthat Plaintiffs failed to state a claim for breach of fiduciary \nduty and common law fraud. \n III. Conclusion \n We agree with the district court that Plaintiffs failed to \nstate a claim upon which relief can be granted and find that \nthe district court did not abuse its discretion in denying leave \nto further amend the complaint, since such leave was never \nsought. Plaintiffs have not proposed how they might be able \nto amend their pleading to cure the deficiencies contained in \nthe fifth amended complaint. Under these circumstances, dis‐\nmissal with prejudice is appropriate. See Leavell v. Ill. Dep’t of \nNat. Res., 600 F.3d 798, 808 (7th Cir. 2010). \n For the foregoing reasons, the district court’s decision dis‐\nmissing the fifth amended complaint with prejudice is \nAFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367677/", "author_raw": "Chief District Judge"}]}	SYKES	BARRETT	GRIESBACH	1	{"SYKES": ", Circuit", "BARRETT": ", Circuit", "GRIESBACH": ", Chief District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590424/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,445		Kurt Cornielsen v. Infinium Capital Management	2019-02-13	17-2583	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.", "parties": "", "opinions": [{"author": "Chief District Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐2583 \nKURT V. CORNIELSEN, et al., \n Plaintiffs‐Appellants, \n \n\n v. \n\nINFINIUM CAPITAL \nMANAGEMENT, LLC, et al., \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 14‐cv‐00098 — Andrea R. Wood, Judge. \n ____________________ \n\n ARGUED FEBRUARY 13, 2018 — DECIDED FEBRUARY 13, 2019 \n ____________________ \n\n Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, \nChief District Judge.* \n\n\n\n\n \n * Of the Eastern District of Wisconsin, sitting by designation. \n\f2 No. 17‐2583 \n\n GRIESBACH, District Judge. Plaintiffs‐appellants, 39 former \nemployees of Infinium Capital Management, LLC, voluntar‐\nily converted loans they had made to their employer under \nthe company’s Employee Capital Pool program into equity in \nthe company. A year later their redemption rights were sus‐\npended, and six months after that, they were told their invest‐\nments were worthless. Plaintiffs filed suit against their em‐\nployer, the holding company that owned their employer, and \nseveral members of the senior management, asserting claims \nfor federal securities fraud and state law claims for breach of \nfiduciary duty and fraud. This appeal is from the district \ncourt’s order dismissing with prejudice their fifth amended \ncomplaint for failure to state a claim. For the reasons that fol‐\nlow, we affirm. \n I. Background \n Infinium is a diversified alternative asset and risk manage‐\nment firm with offices in Chicago, Houston, New York, and \nLondon. It trades exchange‐traded and centrally cleared fi‐\nnancial instruments offering fundamental arbitrage strate‐\ngies. Infinium Capital Holdings is a holding company that \nowned Infinium. To simplify and for clarity, we refer to both \nas Infinium. \n Prior to 2012, Infinium created the Employee Capital Pool, \nthrough which Plaintiffs collectively loaned the company just \nover $5 million. After a profitable year in 2011, Infinium in‐\nvited capital pool participants to convert their loans into eq‐\nuity as Class B‐2 shareholders in Infinium through an “Equity \nConversion” program. Capital pool participants received no‐\ntice of the Equity Conversion opportunity by e‐mail on Feb‐\nruary 14, 2012. Members of Infinium’s senior management—\nCharles Whitman, Gregory Eickbush, Brian Johnson, and \n\fNo. 17‐2583 3 \n\nScott Rose (collectively, the Individual Defendants)—subse‐\nquently conducted three “town hall” meetings about the pro‐\nposal. Those meetings occurred on February 16, 17, and 22, \n2012, and each Plaintiff attended at least one meeting. \n Plaintiffs claim that the Individual Defendants made sev‐\neral misrepresentations and omissions at the three town hall \nmeetings that induced them to participate in the Equity Con‐\nversion. Plaintiffs allege the Individual Defendants stated \nthere would be a single class of equity in Infinium and that all \ncurrent and future equity holders would receive equal treat‐\nment; whereas in fact, Infinium was seeking the infusion of \nnew funds from third‐party investors and offered those inves‐\ntors superior rights to all other equity holders in Infinium and \nguaranteed the equity of those investors from certain losses. \nPlaintiffs also allege the Individual Defendants stated that In‐\nfinium had access to an untapped $20 million line of credit \nthat it could use to pay down debt owed to George Hanley \nand Nathan Laurell, two members of Infinium’s advisory \nboard who were in the process of redeeming their equity in \nInfinium. Finally, the Individual Defendants allegedly also \ntold meeting attendees that those who participated in the Eq‐\nuity Conversion would receive two free months of profit for \nJanuary and February 2012, when in fact, Infinium had lost \n$4.3 million during that period and there was no profit for \nthose months as a result. In addition, in the course of soliciting \nthe conversion of their loans to equity, Infinium wrote to \nPlaintiffs and explained that Plaintiffs would be able to re‐\ndeem 50% any monies converted from debt to equity or oth‐\nerwise invested by Plaintiffs in the first year (2013) and 50% \nin the following year (2014), with the ability to withdraw all \nof their equity investments in just two years. \n\f4 No. 17‐2583 \n\n Participants in the capital pool also received a Private \nPlacement Memorandum (PPM) on February 14, 2012, detail‐\ning the risks of the Equity Conversion. The PPM made exten‐\nsive disclosures about the risks to Plaintiffs’ investments and \nthe nature of the interests in Infinium they would obtain if \nthey chose to participate in the Equity Conversion. It dis‐\nclosed that Equity Conversion participants would “not have \nvoting rights,” meaning their interests would not permit them \n“to elect or remove members of the Board” and they would \nnot “have any ability to affect the management of the com‐\npany.” The PPM also contradicted certain statements Plain‐\ntiffs allege the Individual Defendants made during the town \nhall meetings. For instance, with regard to Infinium’s debts, \nthe PPM disclosed that Plaintiffs’ equity interests would be \n“junior in right of payment” to Infinium’s “secured and unse‐\ncured debts, including commercial lines of credit” and “any \nother debt securities [Infinium] may issue in the future.” The \ndisclosures were particularly forthright about risks from a \n$53 million debt related to the redemption of equity interests \nin Infinium held by George Hanley and Nathan Laurell: “This \nwill cause a significant change in the capital structure of In‐\nfinium, and could constrain or even eliminate Infinium’s abil‐\nity to obtain financing for its business pursuits. The servicing \nof this debt will constrain Infinium’s available capital and \ncould have a material adverse effect on Infinium’s business.” \n Also disclosed in the PPM were limitations on the partici‐\npants’ redemption of capital, only 50% of which would be \navailable for redemption after one year, with the remainder \navailable after a second. The PPM explicitly stated that those \nredemption rights could be limited or suspended by the \nboard under certain circumstances, such as if redemption \n\fNo. 17‐2583 5 \n\nwould prevent the company from complying with regula‐\ntions requiring it to hold a particular amount of capital. In ad‐\ndition, the company would have “broad discretion in using \nthe proceeds” from the Equity Conversion and, indeed, might \n“not use them in a manner Investors would prefer.” \n The PPM also referred to the LLC Agreement for Infinium \nas well as a Subscription Agreement, both of which were at‐\ntached as exhibits. The LLC Agreement provided details \nabout the structure of Infinium, including information de‐\nscribed in the PPM, such as capital redemption rules and the \nnature of participants’ equity interests. The Subscription \nAgreement set forth several representations and warranties, \nincluding that the Equity Conversion participant could “bear \nthe economic risk of losing the … entire investment.” The \nAgreement confirmed that each Equity Conversion partici‐\npant was furnished with the LLC Agreement, the Joinder, the \nPPM, and other documents, materials, and information as he \nor she deemed necessary for evaluating whether to invest in \nthe company. The Subscription Agreement also contained a \nnon‐reliance clause which stated: “[I]n entering into this \ntransaction the undersigned is not relying upon any infor‐\nmation other than that contained in the LLC Agreement, the \nJoinder and the results of the undersigned’s own independent \ninvestigation.” All Equity Conversion participants were re‐\nquired to sign the Subscription Agreement. \n Plaintiffs allege they were told that, if they did not elect to \nparticipate in the Equity Conversion by March 2, 2012, then \ntheir loans would be repaid during 2012. Thereafter, Plaintiffs \nallege, those who opted against taking part in the Equity Con‐\nversion would no longer be able to participate in a permanent, \nstructured vehicle to share in the company’s growth. Prior to \n\f6 No. 17‐2583 \n\nthe March 2nd deadline, Plaintiffs allege that the Individual \nDefendants represented to some Plaintiffs that Infinium \nwould still have nearly $50 million in equity after Hanley and \nLaurell redeemed their own equity interests. Ultimately, \nevery Plaintiff elected to participate in the Equity Conversion \nand, collectively, converted more than $5 million from capital \npool loans into equity in Infinium. Some Plaintiffs chose to \ninvest additional funds in excess of loans already made \nthrough the capital pool. \n According to Plaintiffs, Infinium’s financial position was \nfar worse than represented to them when they agreed to par‐\nticipate in the Equity Conversion. During an April 2015 dep‐\nosition conducted by the Securities and Exchange Commis‐\nsion (SEC), Plaintiff Gordon Wallace allegedly saw certain \nconfidential documents authored or received by the Individ‐\nual Defendants pertaining to Infinium’s financial situation in \nthe weeks before the Equity Conversion. According to Plain‐\ntiffs, the documents showed that Infinium was insolvent and \non the verge of bankruptcy at that time and had already \ndrawn down $6 million on the $20 million line of credit men‐\ntioned at the town hall meetings. Infinium’s management \nteam thus feared that its lender would require immediate re‐\npayment of the line of credit, an impossibility due to the com‐\npany’s insolvency. Moreover, Plaintiffs allege that the docu‐\nments showed that Infinium had already incurred losses of \n$4.3 million during January and February 2012. The docu‐\nments also allegedly demonstrated that, before the Equity \nConversion, Infinium lacked the resources to repay the capital \npool loans, to allow Hanley and Laurell to redeem their eq‐\nuity, or even to sustain the trading activities necessary to gen‐\nerate profits. As further indication of Infinium’s poor finan‐\ncial circumstances during early 2012, Plaintiffs allege that in \n\fNo. 17‐2583 7 \n\nlate 2011 two of the Individual Defendants, Charles Whitman \nand Brian Johnson, privately made undisclosed redemptions \nof their own equity in Infinium. \n Infinium’s financial difficulties continued throughout \n2012, culminating in losses for the year in excess of $6.5 mil‐\nlion. On March 8, 2013, Infinium suspended Plaintiffs’ rights \nto redeem their capital on the ground that the company was \nin default of its debt service obligations to Hanley and Laurell. \nDuring an “investor call” with Plaintiffs on September 1, 2013, \nInfinium’s acting CEO revealed that the money invested by \nthe Equity Conversion participants had become “worthless,” \nwith a value of negative $18 million. At that time, Plaintiffs \nalso learned that, to prevent a hostile takeover by Hanley, In‐\nfinium had not only converted a portion of the debt owed to \nHanley and Laurell into equity but also agreed to eliminate \nPlaintiffs’ right to redeem their investments. Additionally, \nPlaintiffs learned during the call about a class of equity con‐\nsisting of money invested by third‐parties that was superior \nto Plaintiffs’ equity and protected from certain losses. Infin‐\nium sought additional outside investment during February \n2013. \n Plaintiffs filed this action in the Northern District of Illi‐\nnois in January 2014. Their complaint alleged claims for fed‐\neral securities fraud under Section 10(b) of the Securities Ex‐\nchange Act of 1934 and SEC Rule 10b‐5. See 15 U.S.C. § 78j; 17 \nC.F.R. § 240.10b‐5. The complaint also included common law \nclaims for fraud and breach of fiduciary duty. Essentially, \nPlaintiffs alleged that during the three February 2012 town \nhall meetings Infinium, through its management, made vari‐\nous misrepresentations and omissions regarding the Equity \nConversion proposal and Infinium’s financial condition that \n\f8 No. 17‐2583 \n\nhad a material effect on Plaintiffs’ decisions to convert their \nloans into equity. \n Although Plaintiffs amended their complaint several \ntimes (once as a matter of right and subsequently with leave \nof the court), the district court granted motions dismissing the \nsecond and fourth amended complaints. Both dismissals were \nwithout prejudice. After Plaintiffs filed a fifth amended com‐\nplaint, the district court issued an order in July 2017 granting \nyet another motion to dismiss, this time with prejudice. \n In dismissing the fifth amended complaint, the district \ncourt explained that Plaintiffs’ most recent amendments \nfailed to correct deficiencies that the court had previously \nidentified. The court noted that it dismissed the second and \nfourth amended complaints because Plaintiffs “insufficiently \npleaded scienter, failed to identify the speakers of the alleged \nmisrepresentations with particularity, and failed to plead a \nduty to speak with respect to the alleged material omissions.” \nYet the fifth amended complaint made no changes in the \npleading of scienter, made only conclusory allegations that \nthe defendants had a duty to speak with regard to the alleged \nomissions, and made only cosmetic rather than substantive \nchanges in an attempt to identify with particularity which In‐\ndividual Defendants made the alleged misrepresentations. \nPlaintiffs now appeal the dismissal with prejudice of the fifth \namended complaint. \n II. Analysis \n We review de novo a district court’s grant of a motion to \ndismiss for failure to state a claim. Calderon‐Ramirez v. McCa‐\nment, 877 F.3d 272, 275 (7th Cir. 2017). Before addressing the \narguments raised by Plaintiffs, we turn first to the argument \n\fNo. 17‐2583 9 \n\nby Infinium and the Individual Defendants that the non‐reli‐\nance clause in the Subscription Agreement requires dismissal \nregardless of whether the fifth amended complaint ade‐\nquately stated a claim for relief. \nA. The Non‐Reliance Clause \n In support of their motions to dismiss the second, fourth, \nand fifth amended complaints, Infinium and the Individual \nDefendants argued that, even if Plaintiffs stated a claim, the \nnon‐reliance clause contained in the Subscription Agreement \nrequires dismissal. The district court did not address this ar‐\ngument when dismissing any of the complaints. Citing Riss‐\nman v. Rissman, 213 F.3d 381 (7th Cir. 2000), the defendants \nargue that, as a matter of law, Plaintiffs’ claimed reliance on \noral statements made at the town hall meetings was unrea‐\nsonable in light of the Subscription Agreement’s non‐reliance \nclause, through which each Plaintiff indicated he or she was \nnot relying upon any information other than that contained in \nthe LLC Agreement, the Joinder, and the results of his or her \nown independent investigation. \n In Rissman, this court concluded that several non‐reliance \nclauses in a private stock sale agreement prevented a plaintiff \nfrom bringing a federal securities fraud claim alleging that he \nsold his shares in a family company based on his brother’s \ndeceitful assurances that he would never take the company \npublic or sell it to a third party. Id. at 382–83. The court held \nthat “non‐reliance clauses in written stock‐purchase agree‐\nments preclude any possibility of damages under the federal \nsecurities laws for prior oral statements.” Id. at 383–84 (first \nciting Jackvony v. RIHT Fin. Corp., 873 F.2d 411 (1st Cir. 1989) \n(Breyer, J.); then citing One‐O‐One Enters., Inc. v. Caruso, 848 \nF.2d 1282 (D.C. Cir. 1988) (Ginsburg, J.)). Emphasizing that \n\f10 No. 17‐2583 \n\nnon‐reliance clauses are the product of any bargain negoti‐\nated between the parties, the court observed that they “en‐\nsure[] that both the transaction and any subsequent litigation \nproceed on the basis of the parties’ writings, which are less \nsubject to the vagaries of memory and the risks of fabrica‐\ntion.” Id. at 384; see also Cerabio LLC v. Wright Med. Tech., Inc., \n410 F.3d 981, 992 (7th Cir. 2005) (noting that enforcement of a \nnon‐reliance clause was particularly appropriate because “the \nparties were sophisticated commercial entities assisted by \ncounsel”); Vigortone AG Prods., Inc. v. PM AG Prods., Inc., 316 \nF.3d 641, 644–45 (7th Cir. 2002) (“[P]arties to contracts who do \nwant to head off the possibility of a fraud suit will sometimes \ninsert a ‘no‐reliance’ clause into their contract, stating that nei‐\nther party has relied on any representations made by the \nother. Since reliance is an element of fraud, the clause, if up‐\nheld—and why should it not be upheld, at least when the con‐\ntract is between sophisticated commercial enterprises—pre‐\ncludes a fraud suit … .” (internal citations omitted)). \n Each Plaintiff in this case entered into a written agreement \nthat contained ample cautionary language about the risks as‐\nsociated with the investment. In particular, the Subscription \nAgreement recognizes that Infinium is a highly speculative \nventure involving a high degree of financial risk and, as a re‐\nsult, each Equity Conversion participant must be able to bear \nthe economic risk of losing his or her entire investment. Each \nPlaintiff signed the Subscription Agreement and represented \nthat he or she was “not relying upon any information other \nthan that contained in the LLC Agreement, the Joinder and \nthe results of the undersigned’s own independent investiga‐\ntion.” Plaintiffs had every opportunity to read the agreement \nand investigate the company as he or she deemed appropriate \nto evaluate the merits and risks of the investment. Based on \n\fNo. 17‐2583 11 \n\nthis court’s decision in Rissman, the written representations in \nthe Subscription Agreement preclude Plaintiffs from now \nclaiming that they chose to participate in the Equity Conver‐\nsion because they reasonably relied on the Individual Defend‐\nants’ oral statements made during the town hall meetings. \nAlthough the district court’s dismissal of the fifth amended \ncomplaint could be affirmed in large part on this basis alone, \nthe court will address Plaintiffs’ challenges to the merits of the \ndistrict court’s decision that the complaint failed to state a \nclaim for relief. \nB. Failure to State a Claim for Federal Securities Fraud \n “A motion under Rule 12(b)(6) tests whether the com‐\nplaint states a claim on which relief may be granted.” Richards \nv. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). “To survive a Rule \n12(b)(6) motion to dismiss, a complaint must (1) describe the \nclaim in sufficient detail to give the defendant fair notice of \nthe claim and grounds on which it rests, Dura Pharmaceuticals, \nInc. v. Broudo, 544 U.S. 336, 346 (2005), and (2) contain suffi‐\ncient factual matter, accepted as true, to ‘state a claim to relief \nthat is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 672 \n(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 \n(2007)). The complaint’s “[f]actual allegations must be enough \nto raise a right to relief above the speculative level.” Twombly, \n550 U.S. at 555. \n Heightened pleading requirements apply to complaints \nalleging fraud. Federal Rule of Civil Procedure 9(b) provides \nthat a party alleging fraud or mistake “must state with partic‐\nularity the circumstances constituting fraud or mistake,” alt‐\nhough “[m]alice, intent, knowledge, and other conditions of a \nperson’s mind may be alleged generally.” This generally \nmeans “describing the ‘who, what, when, where, and how’ of \n\f12 No. 17‐2583 \n\nthe fraud.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir \n2011). The purpose of this particularity requirement is “to dis‐\ncourage a ‘sue first, ask questions later’ philosophy.” Pirelli \nArmstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., \n631 F.3d 436, 441 (7th Cir. 2011). “Greater precomplaint inves‐\ntigation is warranted in fraud cases,” we have explained, “be‐\ncause public charges of fraud can do great harm to the repu‐\ntation of a business firm or other enterprise (or individual), … \nbecause fraud is frequently charged irresponsibly by people \nwho have suffered a loss and want to find someone to blame \nfor it, … and because charges of fraud (and also mistake, the \nother charge that Rule 9(b) requires be pleaded with particu‐\nlarity) frequently ask courts in effect to rewrite the parties’ \ncontract or otherwise disrupt established relationships.” \nAckerman v. Northwestern Mut. Life Ins. Co., 172 F.3d 467, 469 \n(7th Cir. 1999) (internal citations omitted). \n To state a claim for federal securities fraud, a complaint \nmust allege “(1) a material misrepresentation or omission by \nthe defendant; (2) scienter; (3) a connection between the mis‐\nrepresentation or omission and the purchase or sale of a secu‐\nrity; (4) reliance upon the misrepresentation or omission; (5) \neconomic loss; and (6) loss causation.” Pugh v. Tribune Co., 521 \nF.3d 686, 693 (7th Cir. 2008) (citing Stoneridge Inv. Partners, \nLLC v. Scientific–Atlanta, Inc., 552 U.S. 148, 157 (2008)). Even \nbefore the enactment of the Private Securities Litigation Re‐\nform Act of 1995 (PSLRA), this court had held that securities \nfraud claims must satisfy Rule 9(b)’s particularity standard. \nSee Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990). Sec‐\ntion 21D(b)(2) of the PSLRA added the requirement that com‐\nplaints alleging securities fraud “state with particularity facts \ngiving rise to a strong inference that the defendant acted with \nthe required state of mind.” 15 U.S.C. § 78u‐4(b)(2)(A). Any \n\fNo. 17‐2583 13 \n\ncomplaint alleging a material misstatement or omission must \nalso “specify each statement alleged to have been misleading” \nand the “reason or reasons why the statement is misleading.” \nId. § 78u‐4(b)(1). \n These are the standards the district court applied in find‐\ning Plaintiffs’ fifth amended complaint insufficient. Plaintiffs \ncontend that the district court erred in three respects by dis‐\nmissing their complaint with prejudice. First, they maintain \nthat they identified with adequate particularity the alleged \nfraudulent statements and omissions by the Individual De‐\nfendants. Second, they assert that the complaint creates a \nstrong inference that the Individual Defendants acted with \nthe required state of mind. Finally, they assert that the facts \nalleged in the complaint show that Infinium and the Individ‐\nual Defendants had a duty to disclose various pieces of infor‐\nmation to them. We will address each argument in turn. \n 1. Plaintiﬀs Failed to Identify the Speakers of Alleged \n Misrepresentations with Adequate Particularity. \n To satisfy Rule 9(b)’s particularity standard, a complaint \nmust “state ‘the identity of the person who made the misrep‐\nresentation, the time, place and content of the misrepresenta‐\ntion, and the method by which the misrepresentation was \ncommunicated to the plaintiff.’” Vicom, Inc. v. Harbridge \nMerch. Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994) (internal \nquotation marks omitted) (quoting Uni*Quality, Inc. v. Info‐\ntronx, Inc., 974 F.2d 918, 923 (7th Cir. 1992)). As a result, “[a] \ncomplaint that attributes misrepresentations to all defend‐\nants, lumped together for pleading purposes, generally is in‐\nsufficient.” Sears, 912 F.2d at 893 (quoting Design Inc. v. Syn‐\nthetic Diamond Tech., Inc., 674 F. Supp. 1564, 1569 (N.D. Ill. \n1987)). \n\f14 No. 17‐2583 \n\n The district court dismissed Plaintiffs’ second amended \ncomplaint in part because it set forth only general allegations \nthat “the Defendants” made various representations at the \ntown hall meetings. Those allegations failed to establish the \nidentity of the individuals who made the alleged representa‐\ntions and therefore clearly lacked Rule 9(b)’s required partic‐\nularity. Likewise, the district court dismissed the fourth \namended complaint because it merely replaced general alle‐\ngations against “the Defendants” or “Infinium” with lists of \nthe Individual Defendants’ names—“Whitman, Eickbush, \nRose, and Johnson”—and thus provided no greater detail re‐\ngarding which individuals made which representations. It \nwas against this backdrop that the district court determined \nthat the fifth amended complaint involved a change in form \nrather than substance by replacing three counts against “all \ndefendants” and “all Individual Defendants” with thirteen \ncounts that repeated the same general allegations against each \ndefendant individually, while at the same time conceding that \nthey did not know which Individual Defendant said what. \nPlaintiffs argue, however, that the “group pleading” doctrine \npermits them to make collective allegations here because the \nIndividual Defendants made three group presentations to \nPlaintiffs as potential investors. \n Prior to enactment of the PSLRA, some circuits adopted \nthe group pleading doctrine to “allow[] plaintiffs to link cer‐\ntain defendants to alleged misrepresentations simply by \npleading that the defendants were part of the ‘group’ that \nlikely put the challenged documents together.” Southland Sec. \nCorp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 363 (5th Cir. \n2004). The Ninth Circuit first formulated the doctrine in Wool \nv. Tandem Computers Inc.: \n\fNo. 17‐2583 15 \n\n In cases of corporate fraud where the false or mislead‐\n ing information is conveyed in prospectuses, registra‐\n tion statements, annual reports, press releases, or other \n “group‐published information,” it is reasonable to pre‐\n sume that these are the collective actions of the oﬃcers. \n Under such circumstances, a plaintiﬀ fulfills the partic‐\n ularity requirement of Rule 9(b) by pleading the mis‐\n representations with particularity and where possible \n the roles of the individual defendants in the misrepre‐\n sentations. \n818 F.2d 1433, 1440 (9th Cir. 1987) (citation omitted). Since the \nenactment of the PSLRA, however, some courts have deter‐\nmined that the judicially‐created group pleading doctrine \n“cannot withstand” the PSLRA’s clear statutory prerequisites \n“that the untrue statements or omissions be set forth with par‐\nticularity as to ‘the defendant’ and that scienter be pleaded \nwith regard to ‘each fact or omission’ sufficient to give ‘rise to \na strong inference that the defendant acted with the required \nstate of mind.’” Southland, 365 F.3d at 364 (citing 15 U.S.C. \n§ 78u‐4(b)). This court has embraced that reasoning and de‐\nclined to permit group pleading in this context. See Makor Is‐\nsues & Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588, 603 (7th Cir. \n2006), rev’d on other grounds, 551 U.S. 308 (2007) (Makor I). \n Plaintiffs argue that, although this court has expressly \nrejected the group pleading doctrine with regard to group‐\npublished documents, it has not gone so far as to preclude the \ninvocation of the group pleading doctrine to oral statements. \nBut nothing in the PSLRA indicates that its particularity \nrequirements distinguish between oral and written \nstatements. Indeed, extending the group pleading doctrine to \nencompass oral representations would be inconsistent with \n\f16 No. 17‐2583 \n\nthe reasoning that originally led some courts to create an \nexception to Rule 9(b). As the Ninth Circuit explained in Wool, \nthe court deemed it reasonable to presume that information \nin promulgated written documents reflected “the collective \nactions of the officers.” 818 F.2d at 1440. The doctrine sought \nto account for the opaque nature of modern business entities \nand “the fact that an individual’s actual role in drafting and \napproving particular documents and statements cannot, in \nmany cases, be reliably deduced from their title.” Southland, \n365 F.3d at 363 n.5. Oral statements, by contrast, involve no \nsuch ambiguity; they emanate from a single person against \nwhom purportedly defrauded listeners can bring a claim \ndirectly. See, e.g., In re Interactive Network, Inc. Sec. Litig., 948 \nF. Supp. 917, 922–23 (N.D. Cal. 1996) (“The purpose of the \ndoctrine is to relieve plaintiffs the burden of proving the \nauthorship of a writing. This problem of authorship does not \narise with oral statements.”); see also William O. Fisher, Don’t \nCall Me a Securities Law Groupie: The Rise and Possible Demise of \nthe “Group Pleading” Protocol in 10b‐5 Cases, 56 BUS. LAW. 991, \n1008 n.48 (2001) (discussing courts’ refusal to apply Wool to \noral statements). This court’s determination that the group \npleading doctrine is inconsistent with the PSLRA’s \nparticularity requirements thus applies with equal weight \nregardless of the form of the alleged misrepresentation or \nomission. \n Here, all Plaintiffs attended at least one town hall meeting, \nat which they allege that they each heard oral presentations \nabout the Equity Conversion from the Individual Defendants. \nPlaintiffs’ claims are premised upon their reliance on the oral \nstatements made at the town hall meetings, despite those \nstatements being clearly contrary to the written materials \nPlaintiffs received, and yet, Plaintiffs have no recollection of \n\fNo. 17‐2583 17 \n\nwho said what, even though each Plaintiff personally ob‐\nserved which representations Whitman, Eickbush, Rose, and \nJohnson made on particular days. Plaintiffs concede that they \ncannot sufficiently plead the relationship between the partic‐\nular representations made at the town hall meetings and the \nidentity of the Individual Defendant who spoke them without \ntaking discovery. Plaintiffs contend that they repeatedly re‐\nquested that the district court allow discovery to commence \nin order to obtain the transcripts of the town hall meetings, \nbut the district court denied their motions to lift the discovery \nstay that was put into effect pursuant to the requirements of \nthe PSLRA. \n The PSLRA imposes an automatic stay on discovery while \na motion to dismiss is pending, absent exceptional circum‐\nstances. 15 U.S.C. § 78u‐4(b)(3)(B). The purpose of the provi‐\nsion is to curtail abusive litigation—it allows the court to eval‐\nuate the plaintiffs’ claims before imposing any unreasonable \nburden on the defendant and it prevents a plaintiff from \nbringing an action without first possessing the information \nnecessary to satisfy the heightened pleading requirements of \nthe PSLRA and using discovery to obtain that information \nand resuscitate a complaint that would otherwise be dis‐\nmissed. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. \n308, 313 (2007); In re Comdisco Sec. Litig., 166 F. Supp. 2d 1260, \n1263 (N.D. Ill. 2001). Plaintiffs have not argued that the district \ncourt abused its discretion in denying its motions and have \nnot addressed the court’s reasons for so ruling. Those argu‐\nments are now waived as a result. See Hentosh v. Herman M. \nFinch Univ. of Health Sci./The Chi. Med. Sch., 167 F.3d 1170, 1173 \n(7th Cir. 1999). In short, the district court reasonably deter‐\nmined that the fifth amended complaint’s new gambit of al‐\n\f18 No. 17‐2583 \n\nleging in separate but identical counts that all Individual De‐\nfendants made all misrepresentations or omissions lacked the \nparticularity required by Rule 9(b) and the PSLRA. \n 2. Plaintiﬀs Failed to Adequately Plead Scienter. \n As noted above, a federal securities fraud complaint must \n“state with particularity facts giving rise to a strong inference \nthat the defendant acted with the required state of mind.” 15 \nU.S.C. § 78u‐4(b)(2)(A). The “required state of mind” refers to \nthe element of scienter, which means “an intent to deceive, \ndemonstrated by knowledge of the statement’s falsity or reck‐\nless disregard of a substantial risk that the statement is false.” \nHigginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 756 (7th Cir. \n2007). Under the PSLRA’s “strong inference” standard, “[a] \ncomplaint will survive … only if a reasonable person would \ndeem the inference of scienter cogent and at least as compel‐\nling as any opposing inference one could draw from the facts \nalleged.” Tellabs, 551 U.S. at 324. When determining whether \na complaint creates a strong inference of scienter, “the court \nmust take into account plausible opposing inferences.” Id. at \n323. \n This circuit’s rejection of the group pleading doctrine, dis‐\ncussed above, has particular relevance for the pleading of sci‐\nenter in securities fraud cases. The PSLRA requires that the \ncomplaint “state with particularity facts giving rise to a strong \ninference that the defendant acted with the required state of \nmind.” 15 U.S.C. § 78u‐4(b)(2)(A) (emphasis added). Agree‐\ning with the Fifth Circuit, this court has observed that \n“PSLRA references to ‘the defendant’ may only reasonably be \nunderstood to mean ‘each defendant’ in multiple defendant \ncases.” Makor I, 437 F.3d at 602 (quoting Southland, 365 F.3d at \n365–66). As a result, “plaintiffs must create a strong inference \n\fNo. 17‐2583 19 \n\nof scienter with respect to each individual defendant.” Pugh, 521 \nF.3d at 693–94 (emphasis added) (citing Makor Issues & Rights, \nLtd. v. Tellabs, Inc., 513 F.3d 702, 710 (7th Cir. 2008) (Makor II)). \n The fifth amended complaint’s shortcomings in stating its \nclaims with particularity as to each Individual Defendant \ncarry over into its pleading of scienter. As the district court \nnoted in dismissing both the fourth and fifth amended com‐\nplaints, the allegation that the Individual Defendants acted \nwith an intent to deceive hinged on a single paragraph detail‐\ning the information that Plaintiff Gordon Wallace allegedly \nobtained during his April 2015 deposition by the SEC. That \nparagraph alleges that attorneys for the SEC “showed him \ndocuments authored, and/or received, by Whitman, Eick‐\nbush, Rose, and Johnson” demonstrating that the Individual \nDefendants knew various pieces of information about Infin‐\nium’s true financial situation in January and February 2012. \n Nothing about that paragraph, however, associates \nknowledge of particular information about Infinium with any \nparticular Individual Defendant, making it impossible to as‐\nsess the statements any Individual Defendant made at the \ntown hall meetings against the information he allegedly pos‐\nsessed at the time he made them. Instead, it suggests that one \nplaintiff saw documents indicating that one or more Individ‐\nual Defendants may have possessed information that im‐\npugned the truth of the representations made at the town hall \nmeetings. This court has determined, however, that a com‐\nplaint fails to satisfy the PSLRA’s particularity requirements \nby making conclusory allegations of scienter derived from a \ndefendant’s mere access to information. See Pugh, 521 F.3d at \n694 (“[T]here is a big difference between knowing about … \nreports from [a subsidiary] and knowing that the reports are \n\f20 No. 17‐2583 \n\nfalse.” (third alteration in original) (quoting Higginbotham, 495 \nF.3d at 758)). \n Analogizing to Matrixx Initiatives, Inc. v. Siracusano, 563 \nU.S. 27 (2011), Plaintiffs argue that they have pleaded ample \nfacts to create a strong inference that the Individual Defend‐\nants acted with an intent to deceive when soliciting participa‐\ntion in the Equity Conversion. Specifically, they contend that \nduring January and February 2012 the Individual Defendants \nall had significant equity interests in Infinium, knew that In‐\nfinium faced significant financial pressures, knew that pres‐\nsure on Infinium threatened their personal investments in it, \nand made knowingly false statements at the three town hall \nmeetings to secure an infusion of equity from Plaintiffs that \nwould permit the Individual Defendants to redeem a portion \nof their own investments. But Infinium and the Individual \nDefendants counter that the complaint merely shows that, af‐\nter several years of growth, Infinium presented an investment \nopportunity to its employees—sophisticated financial profes‐\nsionals—who chose to participate and then suffered the con‐\nsequences of unfavorable market conditions arising shortly \nthereafter. Because Plaintiffs’ fifth amended complaint failed \nto make adequately individualized allegations against each \nIndividual Defendant, however, we need not determine \nwhether the inference of scienter propounded by Plaintiffs is \ncogent and at least as compelling as the proposed alternative. \n 3. Plaintiﬀs Failed to Plead a Duty to Speak. \n As their final basis for reversal, Plaintiffs contend that the \ndistrict court erred in concluding that they failed to establish \nthat Infinium and the Individual Defendants had a duty to \ndisclose certain information to them. Plaintiffs contend that \nthe facts alleged support their assertion that the Individual \n\fNo. 17‐2583 21 \n\nDefendants had a “duty to speak” regarding Infinium’s finan‐\ncial condition. \n The district court’s decision dismissing the fifth amended \ncomplaint summarized Plaintiffs’ efforts to plead a duty to \nspeak. Compared to the fourth amended complaint, the fifth \namended complaint added two paragraphs alleging a duty to \nspeak: \n 65. By voluntarily disclosing material facts in connec‐\n tion with securities transactions, Defendants In‐\n finium, Whitman, Eickbush, Rose, and Johnson \n assumed a duty to speak fully and truthfully on \n those subjects. \n 66. A duty to disclose the true financial state of Infin‐\n ium arose because secret information rendered \n the public statements materially misleading. \nThe fifth amended complaint also alleged that each of the In‐\ndividual Defendants owed Plaintiﬀs “fiduciary duties … first \nto Plaintiﬀs as creditors of an insolvent corporation and then \nas shareholders after the conversion.” In dismissing the fifth \namended complaint, the district court observed that these al‐\nlegations did nothing to remedy the fourth amended com‐\nplaint’s failure to state with particularity how the alleged \nomissions rendered any aﬃrmative disclosure misleading. \n On appeal, Plaintiffs’ duty to speak argument cites no law \nand is largely undeveloped. Plaintiffs discuss Infinium’s line \nof credit as an example of an affirmative statement rendered \nmisleading by the omission of pertinent information. They \nnote that the fifth amended complaint alleges, on the one \nhand, that the Individual Defendants represented at the town \nhall meetings that Infinium had access to an untapped \n\f22 No. 17‐2583 \n\n$20 million line of credit and, on the other hand, that Plaintiff \nWallace saw documents during his April 2015 SEC deposition \nindicating that Infinium had already drawn down $6 million \non that line of credit by the time of the town hall meetings. \nAccording to Plaintiffs, they adequately pleaded facts sug‐\ngesting an omission by alleging this discrepancy between the \nrepresentations at the town hall meetings and the information \nthe Individual Defendants actually possessed at that time. \n Plaintiffs’ duty to speak argument falls short for at least \ntwo reasons. First, Plaintiffs’ allegations that the Individual \nDefendants “assumed a duty to speak” and “owed Plaintiffs \nfiduciary duties” are mere legal conclusions that the court \nneed not accept as true. Iqbal, 556 U.S. at 678 (“[T]he tenet that \na court must accept as true all of the allegations contained in \na complaint is inapplicable to legal conclusions.”). In their \nbriefing to this court, Plaintiffs have presented no legal argu‐\nment that the facts pled in the complaint gave rise to a legal \nduty to speak. \n Second, Plaintiffs’ factual allegations regarding purported \nomission suffer from the same absence of particularity that \nplagues the rest of their claims. Taking as an example the al‐\nlegations surrounding the $20 million line of credit, as Plain‐\ntiffs argue in their brief, nothing in the fifth amended com‐\nplaint associates particular knowledge with particular Indi‐\nvidual Defendants. As already discussed above, the allegation \npertaining to information learned during Plaintiff Wallace’s \nApril 2015 SEC deposition claims that Wallace saw “docu‐\nments authored, and/or received, by Whitman, Eickbush, \nRose, and Johnson” showing that they possessed several \npieces of information about Infinium’s financial position at \nthe time they made the town hall presentations. Nothing in \n\fNo. 17‐2583 23 \n\nthat allegation indicates which of the Individual Defendants \npossessed particular pieces of information that could have \nrendered his statements at the town hall meetings misleading. \nIn other words, Plaintiffs failed to link any of the alleged \nomissions to any of the statements made by the Individual \nDefendants. Consequently, the district court properly con‐\ncluded that the fifth amended complaint failed to allege with \nthe requisite particularity facts indicating that the Individual \nDefendants possessed knowledge rendering their affirmative \nrepresentations misleading at the town hall meetings. \nC. Failure to State a Claim for Breach of Fiduciary Duty and \nCommon Law Fraud \n The district court also dismissed Plaintiffs’ state law \nclaims for breach of fiduciary duty and fraud. Because Plain‐\ntiffs’ briefs did not challenge the district court’s dismissal of \nthese claims, Plaintiffs have forfeited any opportunity to do \nso. In any event, we find that the district court did not err in \ndismissing Plaintiffs’ breach of fiduciary duty and common \nlaw fraud claims. To state a claim for breach of fiduciary duty \nunder Delaware law, a plaintiff must allege that a fiduciary \nduty existed and that the defendant breached that duty. See \nStewart v. Wilmington Trust SP Servs., Inc., 112 A.3d 271, 297 \n(Del. Ch. 2015) (citation omitted). A plaintiff must plead the \nfollowing elements to state a common law fraud claim: “(1) a \nfalse representation, usually one of fact, made by the defend‐\nant; (2) the defendant’s knowledge or belief that the represen‐\ntation was false, or was made with reckless disregard of the \ntruth; (3) an intent to induce the plaintiff to act or to refrain \nfrom acting; (4) the plaintiff’s action or inaction taken in justi‐\nfiable reliance upon the representation; and (5) damage to the \nplaintiff as a result of such reliance.” Johnson v. Preferred Prof’l \n\f24 No. 17‐2583 \n\nIns. Co., 91 A.3d 994, 1017 (Del. Super. Ct. 2014) (citation omit‐\nted). Both claims are subject to Rule 9(b)’s heightened plead‐\ning requirements, as they are premised on allegations that the \ndefendants knowingly misled Plaintiffs. Plaintiffs’ claims for \nbreach of fiduciary duty and common law fraud fail for the \nsame reasons as their security fraud claim—Plaintiffs have \nneither pled the required elements of scienter nor alleged the \nfacts underlying these claims with the particularity required \nby Rule 9(b). The district court therefore correctly concluded \nthat Plaintiffs failed to state a claim for breach of fiduciary \nduty and common law fraud. \n III. Conclusion \n We agree with the district court that Plaintiffs failed to \nstate a claim upon which relief can be granted and find that \nthe district court did not abuse its discretion in denying leave \nto further amend the complaint, since such leave was never \nsought. Plaintiffs have not proposed how they might be able \nto amend their pleading to cure the deficiencies contained in \nthe fifth amended complaint. Under these circumstances, dis‐\nmissal with prejudice is appropriate. See Leavell v. Ill. Dep’t of \nNat. Res., 600 F.3d 798, 808 (7th Cir. 2010). \n For the foregoing reasons, the district court’s decision dis‐\nmissing the fifth amended complaint with prejudice is \nAFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367698/", "author_raw": "Chief District Judge"}]}	SYKES	BARRETT	GRIESBACH	1	{"SYKES": ", Circuit", "BARRETT": ", Circuit", "GRIESBACH": ", Chief District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590445/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,893	Kurt V. CORNIELSEN v. INFINIUM CAPITAL MANAGEMENT, LLC	Cornielsen v. Infinium Capital Mgmt., LLC	2019-02-13	No. 17-2583	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Barrett, Griesbach, Sykes", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415323/", "author_raw": ""}]}	BARRETT	GRIESBACH	SYKES	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443893/	Published	0	1	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,635	CONSTRUCTION AND GENERAL LABORERS' UNION NO. 330, Et Al., Plaintiffs-Appellants, v. TOWN OF GRAND CHUTE, Defendant-Appellee.	Constr. & General Laborers' Union No. 330 v. Town of Grand Chute	2019-02-14	18-1739	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Easterbrook, Brennan", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1739\nCONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330, et al.,\n Plaintiffs-Appellants,\n v.\n\nTOWN OF GRAND CHUTE,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 14-C-455 — William C. Griesbach, Chief Judge.\n ____________________\n\n ARGUED SEPTEMBER 24, 2018 — DECIDED FEBRUARY 14, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and\nBRENNAN, Circuit Judges.\n WOOD, Chief Judge. Scabby the Rat has returned. Insofar as\nthis case is concerned, he first made his appearance in the\nTown of Grand Chute, Wisconsin, in connection with a labor\ndispute there. When the Union could not persuade the district\ncourt to enjoin a Town ordinance forbidding Scabby’s pres-\nence, it appealed to this court. We were concerned, however,\nthat the case might be moot, because the construction project\n\f2 No. 18-1739\n\nScabby had adorned was long since completed. Construction\nand General Laborers’ Local Union No. 330 v. Town of Grand\nChute, Wisconsin, 834 F.3d 745 (7th Cir. 2016) (Scabby I). We\ntherefore returned the case to the district court for further ex-\nploration of the original controversy and the significance, if\nany, of a replacement ordinance the Town enacted in 2015.\n The district court did as we asked. Construction and General\nLaborers’ Local Union No. 330 v. Town of Grand Chute, 297 F.\nSupp. 3d 850 (E.D. Wis. 2018) (Scabby II). It concluded that the\ncase was not moot, because the Union was seeking damages\nstemming from the 2014 events. On the merits, the court held\nthat the Town did not discriminate against the Union in vio-\nlation of the First Amendment when it banned Scabby under\nits 2014 Sign Ordinance, and that the 2015 Sign Ordinance also\npassed constitutional muster. The Union has appealed from\nthose rulings. We conclude that the district court correctly\nconcluded that the dispute over the 2014 Ordinance was not\nmoot, and that the Ordinance did not discriminate on the ba-\nsis of content in violation of the First Amendment. Whatever\ndispute may exist over the 2015 Ordinance is not ripe at this\ntime, however, and so we dismiss that part of the case without\nprejudice.\n I\n Scabby the Rat is a familiar sight in certain parts of the\ncountry when a dispute breaks out between a union and an\nemployer. He is notable both for his symbolic meaning and\nfor his size—he is a giant, inflatable balloon, available in sizes\nfrom 6 to 25 feet tall. See Union Rats—Rat Pack—Union Bal-\nloons, BIG SKY BALLOONS, http://www.bigskybal-\nloons.com/ratpack.html (last visited Feb. 13, 2019). Scabby\nmade his appearance in this case after Local 330 of the\n\fNo. 18-1739 3\n\nConstruction and General Laborers’ Union learned that a ma-\nsonry company working at Kolosso Toyota, in the Town of\nGrand Chute, was not paying area standard wages and bene-\nfits. The Union decided to engage in informational picketing\nat the site and to set up Scabby in the median directly across\nfrom the dealer, along the frontage road for West College Av-\nenue, a major local thoroughfare. (The Union also used a large\ninflatable “Fat Cat,” but there is nothing unusual about the\nCat that requires discussion.)\n The Union protest began on Monday, March 31, 2014. Un-\nion members installed a 12-foot version of Scabby by tethering\nthe huge inflatable rat to stakes that had been pounded into\nthe ground; whenever Union members were not there to at-\ntend him, they deflated him (a 54-second procedure). The pro-\ntest went smoothly on the first day, but trouble began to brew\non April 1. Eric Thiel, the Code Enforcement Officer for the\nTown, went to the protest site and told the Local’s president,\nKelly Buss, that the Union would have to deflate Scabby be-\ncause the rat violated § 535-108 of the Town’s Sign Ordinance.\nBuss was surprised, because he had discussed the Union’s\nprotest plans with the Grand Chute Police a few days before\nand they had voiced no objection.\n When all was said and done, the Union lost this round. See\ngenerally Scabby II, 297 F. Supp. 3d at 859–62. It was forced to\nremove Scabby from the scene and resort to other methods of\nprotest. That was when the Union filed this action in the dis-\ntrict court; it asserted that the Town’s 2014 Ordinance violated\nthe First Amendment because it distinguished among signs\non the basis of content. The district court denied its motion for\na preliminary injunction and later entered summary judg-\nment for the Town.\n\f4 No. 18-1739\n\n The Union appealed the summary judgment ruling to this\ncourt. We concluded that we needed more information before\nwe could reach the merits of the case, because we were con-\ncerned that the completion of the construction project that\nprompted the protest may have mooted the controversy.\nScabby I, 834 F.3d at 748. Neither of the two possible theories\nthat would avoid mootness—a live dispute over damages, or\na claim capable of repetition yet evading review, see Weinstein\nv. Bradford, 423 U.S. 147, 149 (1975)—had been explored\nenough for us to proceed. Moreover, we noted, the Town\namended its Code in 2015 and replaced the 2014 version of the\nSign Ordinance with a new one. Id.\n On remand, the district court first issued an order finding\nthat the case was not moot. The Union assured the court, and\nthe Town did not dispute, that the Union was seeking dam-\nages based on the fact that it had been forced to pay members\nto assist in the area-standards picketing at Kolosso and to\ndraw greater resources from its organizing affiliate to staff\nand maintain the protest. The court noted, however, that the\nlikelihood of recurrence theory was not available to the Union\nbecause of the amendment to the Ordinance. Order, Construc-\ntion and General Laborers’ Local Union No. 330 v. Town of Grand\nChute, No. 14-CV-455 (E.D. Wis. Feb. 3, 2017), ECF No. 64.\n The court then turned to the merits. In doing so, it assessed\nthe Union’s claims under both the 2014 Ordinance, which was\nin effect during the Kolosso picketing, and the 2015 Ordi-\nnance. The Union argues that both the past enforcement of the\n2014 Ordinance and any potential future enforcement of the\n2015 Ordinance against Scabby violates its First Amendment\nRights. As the posture of the case differs significantly under\nthe two Ordinances, we address them separately.\n\fNo. 18-1739 5\n\n II\n The lion’s share of the district court’s opinion focused on\nthe Union’s claim for damages based on the 2014 Ordinance,\nand so we begin with that. We may uphold a law that restricts\neven protected speech in a public forum if the restriction is\ncontent neutral, narrowly tailored to serve a significant\ngovernmental interest, and leaves open ample alternative\nways to communicate the desired message. See Ward v. Rock\nAgainst Racism, 491 U.S. 781, 791 (1989). As we acknowledged\nin our earlier opinion, there is no doubt that a union’s use of\nScabby to protest employer practices is a form of expression\nprotected by the First Amendment. Scabby I, 834 F.3d at 751.\nRats, as the manufacturer attests, “Get Attention.” Rats Bro-\nchure, BIG SKY BALLOONS, http://www.bigskyballoons.com/p\ndfs/RATS_pg.pdf (last visited Feb. 13, 2019).\n\f6 No. 18-1739\n\nId. We also noted, however, that a municipality is entitled to\nimplement a nondiscriminatory ban of all private signs from\nthe public roads and rights-of-way. Scabby I, 834 F.3d at 748\n(citing Members of City Council of Los Angeles v. Taxpayers for\nVincent, 466 U.S. 789 (1984)). Grand Chute said that it had\ndone no more than that. We agreed with the Town that its\n2014 Ordinance was “comprehensive and content-neutral.”\nId. at 749. But that is not the end of the story. We pointed out\nthat even a neutral ordinance can violate the First\nAmendment if it is enforced selectively, “permitting messages\nof which [the Town] approves while enforcing the ordinance\nagainst unions and other unpopular speakers.” Id.\n The Union argued that just such selective enforcement\nwas going on in connection with the Kolosso protest. It\noffered two paths toward that conclusion. First, it contended\nthat the 2014 Ordinance placed no meaningful limits on the\nCode Enforcement Officer’s discretion, and so the Town’s\nenforcement was necessarily selective. It relied for that\nproposition on Smith v. Executive Director of Indiana War\nMemorials Commission, 742 F.3d 282 (7th Cir. 2014), which\nholds that “[t]o qualify as content-neutral, a permit policy\ncannot invest ‘unbridled discretion’ in the person who\ndecides whether a permit will issue because excessive\ndiscretion can lead to discriminatory enforcement.” Id. at 289.\nIt also argued that Officer Thiel was allowing certain signs\nthat were incompatible with the Town’s Ordinance to remain\nundisturbed, while at the same time he was insisting that\nScabby had to go. The district court rejected both theories.\nScabby II, 297 F. Supp. 3d at 857–58.\n We take up the complaint about Officer Thiel first, because\nhis actions influence both of the arguments the Union is\n\fNo. 18-1739 7\n\npresenting. In short, the findings of fact that the district court\nmade on remand do not indicate either actual favoritism on\nThiel’s part or so much discretion that discriminatory\nenforcement was inevitable.\n Shortly after the Union’s protest began, the Town’s\nchairman notified Thiel that someone had complained about\nthe rat. Thiel assumed that Kolosso was the complainant, but\nhe did nothing to verify that fact. The evidence showed that\nThiel had the primary responsibility for enforcing the Sign\nOrdinance, although the police department occasionally\nhelped out on weekends or after hours. (A one-person\nenforcement staff might seem rather small, but it is worth\nbearing in mind that in 2014 Grand Chute had a population\nof 21,583, covering approximately 23 square miles. See\nGRAND CHUTE FIRE DEPARTMENT, 2014 ANNUAL REPORT 5, ht\ntp://www.grandchute.net/i/d/gcfd_2014_annual_report.pdf.\nThe fact that Thiel worked alone is thus not too surprising.)\n Thiel explained that his job as Code Enforcement Officer\nincluded ensuring compliance with the Town’s zoning\nordinances, of which the Sign Ordinance was one. Zoning in\ngeneral accounted for about 25% of his workload. The district\ncourt described Thiel’s testimony about the Sign Ordinance\nas follows:\n [Thiel] testified that he finds the majority of his sign\n ordinance violations while driving around the Town;\n however, he does occasionally investigate a complaint\n about a sign that he receives from either a citizen or a\n member of his staff. Thiel testified that when he\n receives a citizen complaint about a sign, the\n complainant normally does not indicate why he or she\n is complaining about a given sign and Thiel does not\n\f8 No. 18-1739\n\n ask. Furthermore, he testified that his standard\n practice to enforce the Town’s sign ordinance after a\n complaint was to go to the site and investigate in\n person. If he deemed a sign in violation of an\n ordinance, he would either remove the sign\n immediately or talk to the property owner and inform\n the owner that he or she needs to remove the sign.\nScabby II, 297 F. Supp. 3d at 861.\n Initially, there was some confusion about which Town\nofficial had the final word about Scabby’s presence on West\nCollege Avenue. On April 1, Thiel told Local president Buss\nthat the rat violated section 535-108 of the 2014 Ordinance and\nthat it thus had to be deflated and removed. Buss then sought\na second opinion from Police Officer Reifsteck, who told him\nto the contrary that Scabby could stay because the Ordinance\naddressed only commercial signs, and the Union was using\nhim for a non-commercial purpose. Confusing matters\nfurther, Thiel admitted at trial that he had cited the wrong\nsection of the Ordinance in support of his order to remove the\nrat. He should have pointed to section 535-106C, which covers\nthe public right-of-way.\n In any event, based on Reifsteck’s advice, the Union used\nScabby all day on April 2 without incident. On April 3, the\nUnion’s representatives were approached by a different code\nenforcement officer from neighboring Appleton, Wisconsin.\nThe Appleton officer thought that Scabby had strayed over\nthe line between Grand Chute and Appleton and that he\nviolated Appleton’s laws. The Union obeyed that order and\nmoved Scabby over to the Grand Chute side of the boundary.\nScabby remained inflated for the rest of the day on April 2.\nThe Union did not use him on April 4, 5, and 6.\n\fNo. 18-1739 9\n\n Thiel was aware of Scabby’s re-inflation on April 2, but he\ntook no action until he could clarify whether Scabby was a\n“sign” within the meaning of Grand Chute’s ordinance, and\nwhether the way the Union was using him amounted to a\nviolation. During a meeting on April 3, Thiel and other town\nofficials agreed that Scabby was indeed a “sign,” and that the\nfact that he was tethered to the ground by means of the stakes\nmeant that he was not permitted under the Ordinance. The\nUnion tried inflating Scabby again on April 7, but Officer\nReifsteck ordered immediate removal and made a comment\nabout the publicity Scabby was attracting. The district court\ncredited Reifsteck’s testimony that the reason he instructed\nthe Union to stop using the rat was because it violated section\n535-106C, not because of the newspaper coverage.\n The Union tried to show that the Grand Chute officials—\nespecially Thiel—were discriminating against the message\nScabby was conveying so effectively. Union officials\nphotographed other signs within the Town that allegedly did\nnot comply with the Ordinance. But Thiel testified that he had\ninvestigated every one of the signs identified by the Union\nand had taken action where he found a violation. Of the 60\nalleged violations Union official Linsmeier presented, Thiel\nfound only five on the public right-of-way. The remainder\nwere either no longer present or were located on private\nproperty. Local president Buss photographed another 30\nalleged violations, but Thiel reviewed all of them and found\nthat only nine were on the public right-of-way. For those nine,\nhe either removed them or instructed the owner to remove\nthem.\n The Union also complained that the Grand Chute Fire\nDepartment had been allowed to use a sign on the public\n\f10 No. 18-1739\n\nright-of-way in connection with its “Fill the Boot” campaign\nfor the Muscular Dystrophy Association. But, as Thiel\nexplained, the Fire Department’s sign rested on a folding\neasel and so did not violate the ordinance, which covered only\nsigns that were affixed to the ground.\n Thiel frankly admitted that he may not have ferreted out\nevery non-compliant sign on a public right-of-way in the\nTown. But he testified that he has never seen a violation and\nfailed to enforce the Ordinance against it. He estimated that\nhe had removed approximately 150 signs a year from 2013 to\n2015, and that he has never given a sign owner more than 24\nto 48 hours to remove a non-compliant sign.\n As we noted earlier, in Scabby II the district court credited\nThiel’s testimony in all these respects. It accordingly found\nthat the Town did not discriminate on the basis of content\nwhen it ordered Scabby and the Fat Cat removed. It also\nconcluded that the fact that Thiel took the time to investigate\nthe scope of the Ordinance was not proof of content-based\naction. Nor, it said, did Thiel’s handling of the 90 cases\nrepresented in the Union’s photographs show anything but\neven-handed enforcement on Thiel’s part. The court found\nirrelevant the fact that Thiel had not always been consistent\nwith respect to signs on private property. (Thiel did not regard\nholiday inflatables such as Santa Claus and Frosty the\nSnowman as “signs” covered by the Ordinance.) The part of\nthe Ordinance relevant to the Union addressed only public\nproperty, and as far as this record shows, the Union had\nneither sought nor been denied a permit to place Scabby on\nprivate property.\n Based on this evidence, the district court held that the 2014\nOrdinance was content neutral and that the Town’s rule was\n\fNo. 18-1739 11\n\nnarrowly tailored to meet its stated purpose—the banning of\nanything on the public right-of-way that might obstruct\nvision or distract passing drivers—noting that the Town did\nnot have any obligation to find the least restrictive means\npossible. Scabby II, 297 F. Supp. 3d at 865 (citing Ward, 491 U.S.\nat 798). Finally, consistent with what this court had observed\nin Scabby I, the district court underscored that the Union had\nenough alternate means of communicating its message. Id. at\n866.\n The Union gives us no reason to doubt the district court’s\nfindings of fact, which we can disturb only if we find them to\nbe clearly erroneous. FED. R. CIV. P. 52(a). Thiel’s testimony\nalso suffices to show that the Town’s Ordinance was not so\nopen-ended and vague as to leave Thiel with no guidance\nwhatsoever. It defined the term “sign” well enough to\ndistinguish between something on an easel and something\nheld by posts in the ground. Thiel also testified that he\nunderstood there to be a difference between a holiday\ninflatable decoration and a sign. Whether he was correct on\nthat point does not matter for present purposes. He was\nobserving a testable line, not using unbridled discretion.\nIndeed, no evidence indicated that Thiel was anything but\nsystematic in his enforcement of the 2014 Ordinance.\n We therefore affirm the district court’s judgment insofar\nas it rejects the Union’s claims based on the 2014 Ordinance.\n III\n As we noted earlier, the district court also issued a deci-\nsion on the merits with respect to the 2015 Ordinance. The\nUnion alleged that, had it not been for that law, it would have\nused Scabby again on a public right-of-way in several\n\f12 No. 18-1739\n\nadditional instances unrelated to the Kolosso protest. But it\nrefrained from doing so, it asserted, because the Town told it\nthat the new Ordinance prohibited the use of inflatables in\nthose settings.\n There are some important differences between the 2014\n§and the 2015 Ordinances. For example, the 2015 Ordinance\ndoes not impose a blanket prohibition against signs on the\npublic right-of-way. Instead, it says that “No part of a sign\nmay be located in public road right-of-way [sic] unless allowed\nby Town Board approval because of unique circumstances or un-\nusual hardship.” 2015 Ordinance, § 535-106D(5) (emphasis\nadded). The 2015 Ordinance also has a section dedicated to\ninflatables, which reads as follows:\n Inflatable signs. Inflatable signs are permitted only on\n lots in the Community Center sign district. All inflata-\n ble signs must be placed a minimum of 10 feet from\n any property line, and must be directly anchored to the\n ground with a tether having a maximum length of 5\n feet. Inflatable signs require a permit and may be in use\n for a maximum of 5 days in any consecutive 6-month\n period.\nId., § 535-106F(5).\n Nothing in this section limits its application to the public\nright-of-way, and so it squarely raises the question whether\nPumpkin, Santa Claus, Frosty, or Spiderman inflatables that\nwere permitted on private property under the 2014 Ordinance\nare now subject to the new blanket restrictions. Thiel’s testi-\nmony at trial revealed that he was enforcing an unwritten hol-\niday decoration exception to the 2015 Ordinance. He admitted\nto allowing inflatables he considered holiday decorations on\n\fNo. 18-1739 13\n\nprivate property, and he suggested that Scabby might qualify\nfor this exception if he donned a Santa hat. The litigation over\nScabby, however, had prompted Thiel to re-evaluate this pol-\nicy and consider whether he needed to adopt a more even-\nhanded prohibition of all signs—festive or no. Indeed, if Santa\nis sending a message about celebrating the Christmas holiday,\nor Spiderman is some form of commercial speech touting a\nnew movie release, the Town might have a hard time explain-\ning why they are permissible and Scabby is not.\n Interesting as those questions are, we conclude that they\nare for another day and that the district court should not have\naddressed the 2015 Ordinance at all. The Union’s allegations\nabout protests it might have conducted are too speculative to\ncreate a concrete dispute. See Susan B. Anthony List v. Driehaus,\n573 U.S. 149, 167 (2014). Should such a dispute arise, it would\nprovide necessary context: Would Scabby (or any other inflat-\nable) be on private or public property? How (if at all) would\nthe Code Enforcement Officer distinguish among different in-\nflatables? What would the record show about the consistency\nof the Town’s policies? The answers to these and similar ques-\ntions are potentially important, but as the record now stands\nthey elude us entirely. This part of the case should have been\ndismissed for failure to present a ripe Article III case or con-\ntroversy.\n ***\n We therefore AFFIRM the district court’s judgment with\nrespect to the 2014 Ordinance, and we VACATE its judgment\nand REMAND for dismissal without prejudice of the Union’s\ncase with respect to the 2015 Ordinance. Each side is to bear\nits own costs on appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367888/", "author_raw": "Diane Pamela Wood"}]}	WOOD	EASTERBROOK	BRENNAN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590635/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,779		Construction and General Labor v. Town of Grand Chute	2019-02-14	18-1739	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1739\nCONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330, et al.,\n Plaintiffs-Appellants,\n v.\n\nTOWN OF GRAND CHUTE,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 14-C-455 — William C. Griesbach, Chief Judge.\n ____________________\n\n ARGUED SEPTEMBER 24, 2018 — DECIDED FEBRUARY 14, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and\nBRENNAN, Circuit Judges.\n WOOD, Chief Judge. Scabby the Rat has returned. Insofar as\nthis case is concerned, he first made his appearance in the\nTown of Grand Chute, Wisconsin, in connection with a labor\ndispute there. When the Union could not persuade the district\ncourt to enjoin a Town ordinance forbidding Scabby’s pres-\nence, it appealed to this court. We were concerned, however,\nthat the case might be moot, because the construction project\n\f2 No. 18-1739\n\nScabby had adorned was long since completed. Construction\nand General Laborers’ Local Union No. 330 v. Town of Grand\nChute, Wisconsin, 834 F.3d 745 (7th Cir. 2016) (Scabby I). We\ntherefore returned the case to the district court for further ex-\nploration of the original controversy and the significance, if\nany, of a replacement ordinance the Town enacted in 2015.\n The district court did as we asked. Construction and General\nLaborers’ Local Union No. 330 v. Town of Grand Chute, 297 F.\nSupp. 3d 850 (E.D. Wis. 2018) (Scabby II). It concluded that the\ncase was not moot, because the Union was seeking damages\nstemming from the 2014 events. On the merits, the court held\nthat the Town did not discriminate against the Union in vio-\nlation of the First Amendment when it banned Scabby under\nits 2014 Sign Ordinance, and that the 2015 Sign Ordinance also\npassed constitutional muster. The Union has appealed from\nthose rulings. We conclude that the district court correctly\nconcluded that the dispute over the 2014 Ordinance was not\nmoot, and that the Ordinance did not discriminate on the ba-\nsis of content in violation of the First Amendment. Whatever\ndispute may exist over the 2015 Ordinance is not ripe at this\ntime, however, and so we dismiss that part of the case without\nprejudice.\n I\n Scabby the Rat is a familiar sight in certain parts of the\ncountry when a dispute breaks out between a union and an\nemployer. He is notable both for his symbolic meaning and\nfor his size—he is a giant, inflatable balloon, available in sizes\nfrom 6 to 25 feet tall. See Union Rats—Rat Pack—Union Bal-\nloons, BIG SKY BALLOONS, http://www.bigskybal-\nloons.com/ratpack.html (last visited Feb. 13, 2019). Scabby\nmade his appearance in this case after Local 330 of the\n\fNo. 18-1739 3\n\nConstruction and General Laborers’ Union learned that a ma-\nsonry company working at Kolosso Toyota, in the Town of\nGrand Chute, was not paying area standard wages and bene-\nfits. The Union decided to engage in informational picketing\nat the site and to set up Scabby in the median directly across\nfrom the dealer, along the frontage road for West College Av-\nenue, a major local thoroughfare. (The Union also used a large\ninflatable “Fat Cat,” but there is nothing unusual about the\nCat that requires discussion.)\n The Union protest began on Monday, March 31, 2014. Un-\nion members installed a 12-foot version of Scabby by tethering\nthe huge inflatable rat to stakes that had been pounded into\nthe ground; whenever Union members were not there to at-\ntend him, they deflated him (a 54-second procedure). The pro-\ntest went smoothly on the first day, but trouble began to brew\non April 1. Eric Thiel, the Code Enforcement Officer for the\nTown, went to the protest site and told the Local’s president,\nKelly Buss, that the Union would have to deflate Scabby be-\ncause the rat violated § 535-108 of the Town’s Sign Ordinance.\nBuss was surprised, because he had discussed the Union’s\nprotest plans with the Grand Chute Police a few days before\nand they had voiced no objection.\n When all was said and done, the Union lost this round. See\ngenerally Scabby II, 297 F. Supp. 3d at 859–62. It was forced to\nremove Scabby from the scene and resort to other methods of\nprotest. That was when the Union filed this action in the dis-\ntrict court; it asserted that the Town’s 2014 Ordinance violated\nthe First Amendment because it distinguished among signs\non the basis of content. The district court denied its motion for\na preliminary injunction and later entered summary judg-\nment for the Town.\n\f4 No. 18-1739\n\n The Union appealed the summary judgment ruling to this\ncourt. We concluded that we needed more information before\nwe could reach the merits of the case, because we were con-\ncerned that the completion of the construction project that\nprompted the protest may have mooted the controversy.\nScabby I, 834 F.3d at 748. Neither of the two possible theories\nthat would avoid mootness—a live dispute over damages, or\na claim capable of repetition yet evading review, see Weinstein\nv. Bradford, 423 U.S. 147, 149 (1975)—had been explored\nenough for us to proceed. Moreover, we noted, the Town\namended its Code in 2015 and replaced the 2014 version of the\nSign Ordinance with a new one. Id.\n On remand, the district court first issued an order finding\nthat the case was not moot. The Union assured the court, and\nthe Town did not dispute, that the Union was seeking dam-\nages based on the fact that it had been forced to pay members\nto assist in the area-standards picketing at Kolosso and to\ndraw greater resources from its organizing affiliate to staff\nand maintain the protest. The court noted, however, that the\nlikelihood of recurrence theory was not available to the Union\nbecause of the amendment to the Ordinance. Order, Construc-\ntion and General Laborers’ Local Union No. 330 v. Town of Grand\nChute, No. 14-CV-455 (E.D. Wis. Feb. 3, 2017), ECF No. 64.\n The court then turned to the merits. In doing so, it assessed\nthe Union’s claims under both the 2014 Ordinance, which was\nin effect during the Kolosso picketing, and the 2015 Ordi-\nnance. The Union argues that both the past enforcement of the\n2014 Ordinance and any potential future enforcement of the\n2015 Ordinance against Scabby violates its First Amendment\nRights. As the posture of the case differs significantly under\nthe two Ordinances, we address them separately.\n\fNo. 18-1739 5\n\n II\n The lion’s share of the district court’s opinion focused on\nthe Union’s claim for damages based on the 2014 Ordinance,\nand so we begin with that. We may uphold a law that restricts\neven protected speech in a public forum if the restriction is\ncontent neutral, narrowly tailored to serve a significant\ngovernmental interest, and leaves open ample alternative\nways to communicate the desired message. See Ward v. Rock\nAgainst Racism, 491 U.S. 781, 791 (1989). As we acknowledged\nin our earlier opinion, there is no doubt that a union’s use of\nScabby to protest employer practices is a form of expression\nprotected by the First Amendment. Scabby I, 834 F.3d at 751.\nRats, as the manufacturer attests, “Get Attention.” Rats Bro-\nchure, BIG SKY BALLOONS, http://www.bigskyballoons.com/p\ndfs/RATS_pg.pdf (last visited Feb. 13, 2019).\n\f6 No. 18-1739\n\nId. We also noted, however, that a municipality is entitled to\nimplement a nondiscriminatory ban of all private signs from\nthe public roads and rights-of-way. Scabby I, 834 F.3d at 748\n(citing Members of City Council of Los Angeles v. Taxpayers for\nVincent, 466 U.S. 789 (1984)). Grand Chute said that it had\ndone no more than that. We agreed with the Town that its\n2014 Ordinance was “comprehensive and content-neutral.”\nId. at 749. But that is not the end of the story. We pointed out\nthat even a neutral ordinance can violate the First\nAmendment if it is enforced selectively, “permitting messages\nof which [the Town] approves while enforcing the ordinance\nagainst unions and other unpopular speakers.” Id.\n The Union argued that just such selective enforcement\nwas going on in connection with the Kolosso protest. It\noffered two paths toward that conclusion. First, it contended\nthat the 2014 Ordinance placed no meaningful limits on the\nCode Enforcement Officer’s discretion, and so the Town’s\nenforcement was necessarily selective. It relied for that\nproposition on Smith v. Executive Director of Indiana War\nMemorials Commission, 742 F.3d 282 (7th Cir. 2014), which\nholds that “[t]o qualify as content-neutral, a permit policy\ncannot invest ‘unbridled discretion’ in the person who\ndecides whether a permit will issue because excessive\ndiscretion can lead to discriminatory enforcement.” Id. at 289.\nIt also argued that Officer Thiel was allowing certain signs\nthat were incompatible with the Town’s Ordinance to remain\nundisturbed, while at the same time he was insisting that\nScabby had to go. The district court rejected both theories.\nScabby II, 297 F. Supp. 3d at 857–58.\n We take up the complaint about Officer Thiel first, because\nhis actions influence both of the arguments the Union is\n\fNo. 18-1739 7\n\npresenting. In short, the findings of fact that the district court\nmade on remand do not indicate either actual favoritism on\nThiel’s part or so much discretion that discriminatory\nenforcement was inevitable.\n Shortly after the Union’s protest began, the Town’s\nchairman notified Thiel that someone had complained about\nthe rat. Thiel assumed that Kolosso was the complainant, but\nhe did nothing to verify that fact. The evidence showed that\nThiel had the primary responsibility for enforcing the Sign\nOrdinance, although the police department occasionally\nhelped out on weekends or after hours. (A one-person\nenforcement staff might seem rather small, but it is worth\nbearing in mind that in 2014 Grand Chute had a population\nof 21,583, covering approximately 23 square miles. See\nGRAND CHUTE FIRE DEPARTMENT, 2014 ANNUAL REPORT 5, ht\ntp://www.grandchute.net/i/d/gcfd_2014_annual_report.pdf.\nThe fact that Thiel worked alone is thus not too surprising.)\n Thiel explained that his job as Code Enforcement Officer\nincluded ensuring compliance with the Town’s zoning\nordinances, of which the Sign Ordinance was one. Zoning in\ngeneral accounted for about 25% of his workload. The district\ncourt described Thiel’s testimony about the Sign Ordinance\nas follows:\n [Thiel] testified that he finds the majority of his sign\n ordinance violations while driving around the Town;\n however, he does occasionally investigate a complaint\n about a sign that he receives from either a citizen or a\n member of his staff. Thiel testified that when he\n receives a citizen complaint about a sign, the\n complainant normally does not indicate why he or she\n is complaining about a given sign and Thiel does not\n\f8 No. 18-1739\n\n ask. Furthermore, he testified that his standard\n practice to enforce the Town’s sign ordinance after a\n complaint was to go to the site and investigate in\n person. If he deemed a sign in violation of an\n ordinance, he would either remove the sign\n immediately or talk to the property owner and inform\n the owner that he or she needs to remove the sign.\nScabby II, 297 F. Supp. 3d at 861.\n Initially, there was some confusion about which Town\nofficial had the final word about Scabby’s presence on West\nCollege Avenue. On April 1, Thiel told Local president Buss\nthat the rat violated section 535-108 of the 2014 Ordinance and\nthat it thus had to be deflated and removed. Buss then sought\na second opinion from Police Officer Reifsteck, who told him\nto the contrary that Scabby could stay because the Ordinance\naddressed only commercial signs, and the Union was using\nhim for a non-commercial purpose. Confusing matters\nfurther, Thiel admitted at trial that he had cited the wrong\nsection of the Ordinance in support of his order to remove the\nrat. He should have pointed to section 535-106C, which covers\nthe public right-of-way.\n In any event, based on Reifsteck’s advice, the Union used\nScabby all day on April 2 without incident. On April 3, the\nUnion’s representatives were approached by a different code\nenforcement officer from neighboring Appleton, Wisconsin.\nThe Appleton officer thought that Scabby had strayed over\nthe line between Grand Chute and Appleton and that he\nviolated Appleton’s laws. The Union obeyed that order and\nmoved Scabby over to the Grand Chute side of the boundary.\nScabby remained inflated for the rest of the day on April 2.\nThe Union did not use him on April 4, 5, and 6.\n\fNo. 18-1739 9\n\n Thiel was aware of Scabby’s re-inflation on April 2, but he\ntook no action until he could clarify whether Scabby was a\n“sign” within the meaning of Grand Chute’s ordinance, and\nwhether the way the Union was using him amounted to a\nviolation. During a meeting on April 3, Thiel and other town\nofficials agreed that Scabby was indeed a “sign,” and that the\nfact that he was tethered to the ground by means of the stakes\nmeant that he was not permitted under the Ordinance. The\nUnion tried inflating Scabby again on April 7, but Officer\nReifsteck ordered immediate removal and made a comment\nabout the publicity Scabby was attracting. The district court\ncredited Reifsteck’s testimony that the reason he instructed\nthe Union to stop using the rat was because it violated section\n535-106C, not because of the newspaper coverage.\n The Union tried to show that the Grand Chute officials—\nespecially Thiel—were discriminating against the message\nScabby was conveying so effectively. Union officials\nphotographed other signs within the Town that allegedly did\nnot comply with the Ordinance. But Thiel testified that he had\ninvestigated every one of the signs identified by the Union\nand had taken action where he found a violation. Of the 60\nalleged violations Union official Linsmeier presented, Thiel\nfound only five on the public right-of-way. The remainder\nwere either no longer present or were located on private\nproperty. Local president Buss photographed another 30\nalleged violations, but Thiel reviewed all of them and found\nthat only nine were on the public right-of-way. For those nine,\nhe either removed them or instructed the owner to remove\nthem.\n The Union also complained that the Grand Chute Fire\nDepartment had been allowed to use a sign on the public\n\f10 No. 18-1739\n\nright-of-way in connection with its “Fill the Boot” campaign\nfor the Muscular Dystrophy Association. But, as Thiel\nexplained, the Fire Department’s sign rested on a folding\neasel and so did not violate the ordinance, which covered only\nsigns that were affixed to the ground.\n Thiel frankly admitted that he may not have ferreted out\nevery non-compliant sign on a public right-of-way in the\nTown. But he testified that he has never seen a violation and\nfailed to enforce the Ordinance against it. He estimated that\nhe had removed approximately 150 signs a year from 2013 to\n2015, and that he has never given a sign owner more than 24\nto 48 hours to remove a non-compliant sign.\n As we noted earlier, in Scabby II the district court credited\nThiel’s testimony in all these respects. It accordingly found\nthat the Town did not discriminate on the basis of content\nwhen it ordered Scabby and the Fat Cat removed. It also\nconcluded that the fact that Thiel took the time to investigate\nthe scope of the Ordinance was not proof of content-based\naction. Nor, it said, did Thiel’s handling of the 90 cases\nrepresented in the Union’s photographs show anything but\neven-handed enforcement on Thiel’s part. The court found\nirrelevant the fact that Thiel had not always been consistent\nwith respect to signs on private property. (Thiel did not regard\nholiday inflatables such as Santa Claus and Frosty the\nSnowman as “signs” covered by the Ordinance.) The part of\nthe Ordinance relevant to the Union addressed only public\nproperty, and as far as this record shows, the Union had\nneither sought nor been denied a permit to place Scabby on\nprivate property.\n Based on this evidence, the district court held that the 2014\nOrdinance was content neutral and that the Town’s rule was\n\fNo. 18-1739 11\n\nnarrowly tailored to meet its stated purpose—the banning of\nanything on the public right-of-way that might obstruct\nvision or distract passing drivers—noting that the Town did\nnot have any obligation to find the least restrictive means\npossible. Scabby II, 297 F. Supp. 3d at 865 (citing Ward, 491 U.S.\nat 798). Finally, consistent with what this court had observed\nin Scabby I, the district court underscored that the Union had\nenough alternate means of communicating its message. Id. at\n866.\n The Union gives us no reason to doubt the district court’s\nfindings of fact, which we can disturb only if we find them to\nbe clearly erroneous. FED. R. CIV. P. 52(a). Thiel’s testimony\nalso suffices to show that the Town’s Ordinance was not so\nopen-ended and vague as to leave Thiel with no guidance\nwhatsoever. It defined the term “sign” well enough to\ndistinguish between something on an easel and something\nheld by posts in the ground. Thiel also testified that he\nunderstood there to be a difference between a holiday\ninflatable decoration and a sign. Whether he was correct on\nthat point does not matter for present purposes. He was\nobserving a testable line, not using unbridled discretion.\nIndeed, no evidence indicated that Thiel was anything but\nsystematic in his enforcement of the 2014 Ordinance.\n We therefore affirm the district court’s judgment insofar\nas it rejects the Union’s claims based on the 2014 Ordinance.\n III\n As we noted earlier, the district court also issued a deci-\nsion on the merits with respect to the 2015 Ordinance. The\nUnion alleged that, had it not been for that law, it would have\nused Scabby again on a public right-of-way in several\n\f12 No. 18-1739\n\nadditional instances unrelated to the Kolosso protest. But it\nrefrained from doing so, it asserted, because the Town told it\nthat the new Ordinance prohibited the use of inflatables in\nthose settings.\n There are some important differences between the 2014\n§and the 2015 Ordinances. For example, the 2015 Ordinance\ndoes not impose a blanket prohibition against signs on the\npublic right-of-way. Instead, it says that “No part of a sign\nmay be located in public road right-of-way [sic] unless allowed\nby Town Board approval because of unique circumstances or un-\nusual hardship.” 2015 Ordinance, § 535-106D(5) (emphasis\nadded). The 2015 Ordinance also has a section dedicated to\ninflatables, which reads as follows:\n Inflatable signs. Inflatable signs are permitted only on\n lots in the Community Center sign district. All inflata-\n ble signs must be placed a minimum of 10 feet from\n any property line, and must be directly anchored to the\n ground with a tether having a maximum length of 5\n feet. Inflatable signs require a permit and may be in use\n for a maximum of 5 days in any consecutive 6-month\n period.\nId., § 535-106F(5).\n Nothing in this section limits its application to the public\nright-of-way, and so it squarely raises the question whether\nPumpkin, Santa Claus, Frosty, or Spiderman inflatables that\nwere permitted on private property under the 2014 Ordinance\nare now subject to the new blanket restrictions. Thiel’s testi-\nmony at trial revealed that he was enforcing an unwritten hol-\niday decoration exception to the 2015 Ordinance. He admitted\nto allowing inflatables he considered holiday decorations on\n\fNo. 18-1739 13\n\nprivate property, and he suggested that Scabby might qualify\nfor this exception if he donned a Santa hat. The litigation over\nScabby, however, had prompted Thiel to re-evaluate this pol-\nicy and consider whether he needed to adopt a more even-\nhanded prohibition of all signs—festive or no. Indeed, if Santa\nis sending a message about celebrating the Christmas holiday,\nor Spiderman is some form of commercial speech touting a\nnew movie release, the Town might have a hard time explain-\ning why they are permissible and Scabby is not.\n Interesting as those questions are, we conclude that they\nare for another day and that the district court should not have\naddressed the 2015 Ordinance at all. The Union’s allegations\nabout protests it might have conducted are too speculative to\ncreate a concrete dispute. See Susan B. Anthony List v. Driehaus,\n573 U.S. 149, 167 (2014). Should such a dispute arise, it would\nprovide necessary context: Would Scabby (or any other inflat-\nable) be on private or public property? How (if at all) would\nthe Code Enforcement Officer distinguish among different in-\nflatables? What would the record show about the consistency\nof the Town’s policies? The answers to these and similar ques-\ntions are potentially important, but as the record now stands\nthey elude us entirely. This part of the case should have been\ndismissed for failure to present a ripe Article III case or con-\ntroversy.\n ***\n We therefore AFFIRM the district court’s judgment with\nrespect to the 2014 Ordinance, and we VACATE its judgment\nand REMAND for dismissal without prejudice of the Union’s\ncase with respect to the 2015 Ordinance. Each side is to bear\nits own costs on appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368032/", "author_raw": "Diane Pamela Wood"}]}	WOOD	EASTERBROOK	BRENNAN	1	{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "BRENNAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590779/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,780	ARC WELDING SUPPLY CO, INC., Et Al., Plaintiffs-Appellants, v. AMERICAN WELDING & GAS, INC., Defendant-Appellee.	ARC Welding Supply, Co. Inc. v. American Welding & Gas, Inc.	2019-02-14	18-1546	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Easterbrook, Rovner, Eve", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1546\nARC WELDING SUPPLY CO, INC., et al.,\n Plaintiffs-Appellants,\n v.\n\nAMERICAN WELDING & GAS, INC.,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Evansville Division.\n No. 3:16-cv-00173-RLY-MPB — Richard L. Young, Judge.\n ____________________\n\n ARGUED SEPTEMBER 26, 2018 — DECIDED FEBRUARY 14, 2019\n ____________________\n\n Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.\n ROVNER, Circuit Judge. This case arises from an Asset Pur-\nchase Agreement (the “Agreement”) entered into in October\n2014 between the plaintiffs, ARC Welding Supply Co. and its\nowner Charles McCormick (collectively “ARC”), and the de-\nfendant American Welding & Gas, Inc. (“American”). ARC\nwas a distributor of compressed gases and welding supplies\nin Vincennes, Indiana, and sold substantially all of its assets\nto American including its stock of asset cylinders. ARC filed\n\f2 No. 18-1546\n\na complaint alleging that American breached the terms of the\nAgreement for the purchase of the asset cylinders, and Amer-\nican filed a counterclaim for breach of contract. Following a\nbench trial, the district court entered judgment in favor of\nAmerican and awarded damages in the amount of $33,765.52\nplus interest, and ARC now appeals.\n We take the facts in this case directly from the finding of\nfacts set forth by the district court following the bench trial.\nAs part of the Agreement, American paid ARC $1,534,796.06\nfor ARC’s assets, of which the primary assets were its asset\ncylinders. Asset cylinders could vary in type and cost. For in-\nstance, some cylinders are designed to hold compressed gas,\nand others hold compressed liquids, and the cost can vary\nfrom as low as $30 per cylinder to as high as $1,200 per cylin-\nder. Businesses can profit from cylinders such as these by\nrenting them to businesses in need of compressed gas for use\nin their operations, including restaurants or convenience\nstores which rent carbon dioxide cylinders for soda fountains\nthat must then be refilled on a regular basis. As a result, a crit-\nical factor in determining the appropriate price for the sale of\nARC’s assets was the number of asset cylinders that could be\ntransferred. The sales price was based in part on McCormick’s\nrepresentation that there would be approximately 6,500 cyl-\ninders. The parties could not ascertain a precise count of the\ncylinders that would be transferred because many cylinders\nwere “out in the field” with customers, and therefore the\nAgreement provided that American would hold back\n$150,000—known as the Cylinder Deferred Payment—for 180\ndays to protect against a marginal shortage of up to 1,200 cyl-\ninders, at a valuation of $125 per cylinder. In American’s ex-\nperience, a 1,200-cylinder cushion was more than sufficient to\n\fNo. 18-1546 3\n\nprotect against any shortage that might occur, and ARC did\nnothing to dissuade American from that belief.\n The contract required American to engage in an audit to\ncount and verify the number of asset cylinders in the posses-\nsion of ARC and its customers that would be transferred un-\nder the contract. American conducted the audit between De-\ncember 2014 and May 22, 2015. The audit started with a per-\nsonal physical count of the “dock stock,” encompassing the\ncylinders on-site at the Vincennes facility, which yielded\n1,553. American then audited the cylinders in the field with\nthe 1,233 customers whose accounts were transferred from\nARC to American. To audit those remote accounts, American\nfirst reviewed each customer’s payment history, and if the\nrecords revealed that the customer consistently paid rent on a\ncertain number of cylinders and did not include a large num-\nber of exchanges, then American provided full credit for that\nnumber of cylinders and would generally not visit that cus-\ntomer to confirm the count. Where the records indicated a\nlarge number of cylinder exchanges or abnormalities in the\nrecords provided by ARC, American would perform a physi-\ncal audit where an American representative would visit the\ncustomer’s location, meet with the customer, locate the cylin-\nders, record the number on cylinder reconciliation forms, and\nobtain the customer’s signature confirming that information.\n The audit also included cylinders that were in the field\npursuant to 99-year leases with customers. For those ac-\ncounts, American would send a letter to customers seeking\nverification of the count listed in the records, and if the cus-\ntomer verified that count, then American provided full credit\nto ARC. If there was a discrepancy in the count, or if the cus-\ntomer failed to respond, American would follow up and often\n\f4 No. 18-1546\n\nconduct an in-person audit. One further adjustment to the cyl-\ninder amount was required. Following its acquisition of the\nasset cylinders, American began sending monthly cylinder\nrent bills to the customers it acquired from ARC. It subse-\nquently learned that a significant percentage of ARC’s cus-\ntomers were no-rent customers, who paid only to have cylin-\nders refilled but did not pay rent to ARC on the ARC-owned\ncylinders they were using. Such no-rent cylinders were not\nconsidered asset cylinders under the Agreement unless re-\ntrieved.\n According to the Agreement, settlement of the Cylinder\nDeferred Payment was to occur on or before April 15, 2015.\nRon Adkins, American’s President and Chief Executive Of-\nficer, informed McCormick that the audit was taking longer\nthan anticipated, that the count was coming up shorter than\nanticipated, and that it wanted to continue counting in order\nto find every available cylinder. The continuation of the audit\nwas mutually beneficial, in that the more cylinders included\nin the final count, the more American could earn and the\nsmaller ARC’s shortfall would be. The district court found\nthat McCormick extended the deadline and therefore that\nAmerican, in finishing the audit on May 22, 2015, did not miss\nthe contractual deadline for completing the audit and propos-\ning a “settlement” of the Cylinder Deferred Payment. The re-\nsults of the audit revealed that ARC owned and transferred\n4,663 asset cylinders to American, 1,837 cylinders short of the\n6,500 promised in the Agreement. Following that audit, ARC\nclaimed that 16 uncounted cylinders were discovered at\nLandree Mine, and American stipulated to provide a 16-cyl-\ninder credit to ARC. Beyond that number, ARC has provided\nno affirmative proof that the cylinder count as to any of the\ncustomers was flawed.\n\fNo. 18-1546 5\n\n ARC argued to the district court that American breached\nthe contract because it did not complete the audit within the\n180-day period, and that American as a result owed the\n$150,000 amount allocated as a holdback for the Cylinder De-\nferred Payment. The district court rejected that argument on\ntwo independent grounds. First, the court held that American\ndid not miss the deadline for proposing a settlement, because\nMcCormick extended that deadline through at least May 28,\n2015, at which point American had completed its audit and\nproposed the settlement of the Cylinder Deferred Payment.\nSecond, the court held that the deadline ensured that, if ARC\ndelivered enough cylinders to warrant recovery of some or all\nof the Cylinder Deferred Payment, ARC would receive pay-\nment by that deadline. The court held that if less than 5,300\ncylinders were delivered, they would not be entitled to any of\nthe $150,000 payment. Because only 4,663 cylinders were de-\nlivered, the court held that regardless of the deadline, the fail-\nure to deliver more than 5,300 cylinders meant that they were\nnever entitled to receive any portion of the $150,000 Cylinder\nDeferred Payment. The court therefore rejected ARC’s claim\nfor damages for breach of contract.\n Based on that same reasoning, the court granted Ameri-\ncan’s counterclaim for breach of contract. Because the audit\nreflected that ARC owned only 4,663 cylinders, and because\nAmerican stipulated to count the cylinders at Landree Mine,\nthe court held that American was entitled to retain the entire\n$150,000 Cylinder Deferred Payment and to recover $125 for\neach cylinder it failed to receive under the threshold of 5,300\ncovered by that Cylinder Deferred Payment contingency for\na total of $77,625. From that amount, the district court sub-\ntracted the $43,859.48 that American admitted it owed in con-\n\f6 No. 18-1546\n\nnection with the settlement of the accounts receivable and en-\ntered judgment in favor of American in the amount of\n$33,765.52 plus interest.\n ARC now appeals the court’s decision. In an appeal from\na bench trial, we review the district court’s findings of fact for\nclear error, and its conclusions of law de novo. Rain v. Rolls-\nRoyce Corp., 626 F.3d 372, 379 (7th Cir. 2010). “Under Indiana\nstate law, the court’s goal in interpreting a contract is to ‘give\neffect to the parties’ intent as reasonably manifested by the\nlanguage of the agreement.’” Id., quoting Reuille v. E.E. Bran-\ndenberger Constr., Inc., 888 N.E.2d 770, 771 (Ind. 2008). Unless\nterms of a contract are ambiguous, the court will give the\nterms their ordinary and plain meaning. Id. The district court\nmet that standard in this case, interpreting the contract con-\nsistent with the plain and ordinary meaning of the words.\n ARC argues that the district court erred in determining\nthat McCormick extended the deadline for the completion of\nthe audit. According to ARC, the Agreement could not be ex-\ntended by McCormick because it was fundamentally a con-\ntract for the sale of goods and the Uniform Commercial Code\n(UCC) prohibits the oral modification of such contracts, and\nbecause the parol evidence rule forbids oral modification of\ncontracts such as the Agreement that are totally integrated\nand expressly prohibit oral modifications. It further argues\nthat American breached the contract by failing to tender a ver-\nified count within the required time period.\n American contests both the applicability of the UCC to the\nAgreement, and the argument that an oral modification was\nprohibited. But we need not address those issues at all. The\ndistrict court based its judgment on two separate grounds.\n\fNo. 18-1546 7\n\nThe first related to whether the deadline for the audit was ex-\ntended by McCormick on behalf of ARC. The second basis,\nhowever, was independent of whether the deadline was ex-\ntended. Recognizing the structure of the contract, the court\nheld that the purpose of the deadline was to ensure timely\npayment to ARC if more than 5,300 cylinders were delivered,\nbut because the audit at no time revealed more than 5,300 cyl-\ninders, the court held that ARC was entitled to no recovery\nand the Cylinder Deferred Payment provisions were not\nowed.\n ARC does little to contest the latter basis for the district\ncourt’s judgment, and it is controlling here. The contract pro-\nvisions at issue, Article 2, § 2.1(f) of the Agreement, provides\nin relevant part:\n Asset Cylinders. The Asset Cylinders in the pos-\n session of Seller and in possession of customers\n shall be counted and verified as part of the in-\n ventory under Section 2.1(e) above. The base\n number of Asset Cylinders is 6,500 units. The\n parties agree that the Asset Cylinders will not\n be verified to the satisfaction of the Purchaser\n prior to Closing, therefore, $150,000.00 of the\n Purchase Price shall be deferred for 180 days\n (the “Cylinder Deferred Payment”). After the\n 180 [-day] cylinder reconciliation period, any\n shortage of Asset Cylinders shall be charged at\n the rate of $125.00 per unit against the Cylinder\n Deferred Payment, and any excess of Asset Cyl-\n inders will be added at the rate of $125.00 per\n unit to the Cylinder Deferred Payment. The bal-\n ance of the Cylinder Deferred Payment, if any,\n\f8 No. 18-1546\n\n shall be paid to the Seller plus interest at 4% per\n annum from the Effective Date to date of settle-\n ment. Settlement of the Cylinder Deferred Pay-\n ment shall take place not more than fifteen (15)\n days following the end of the cylinder reconcil-\n iation period. …\n First, ARC asserts that the language of that provision re-\nquires the audit to be completed within 180 days, and that the\nentire $150,000 Cylinder Deferred Payment is owed to it if\nAmerican fails to complete the audit by that deadline. That\nreads language into the provision that is not there. The provi-\nsion sets forth the 180-day period for the audit, but it never\ncontemplates as a consequence for exceeding that time pe-\nriod, forfeiture of the entire $150,000 Cylinder Deferred Pay-\nment. The damage to ARC for the failure to complete the au-\ndit in the 180 days is the delay in its receipt of any funds owed\nto it of that $150,000 Cylinder Deferred Payment. Therefore,\nif the ultimate audit had yielded an asset cylinder count that\nexceeded 5,300, then ARC could claim that American owed it\ndamages for the delay beyond that 180 days in paying it the\namount owed, likely in the form of interest. See Checkers Eight\nLtd. P'ship v. Hawkins, 241 F.3d 558, 562 (7th Cir. 2001)\n(“[a]bsent exceptional circumstances, actual damages caused\nby monetary payments being late are not difficult to measure\nbecause interest rates can be used to estimate the time value\nof money.”); Farah, LLC v. Architura, Corp., 952 N.E. 2d 328,\n337 (Ind. Ct. App. 2011) (“A party’s recovery for breach of\ncontract is limited to the loss actually suffered, and the party\nmay not be placed in a better position than he or she would\nhave enjoyed if the breach had not occurred.”). Nothing in\nthat provision, however, indicates that the failure to comply\nwill result in a forfeiture of the entire $150,000 amount.\n\fNo. 18-1546 9\n\n Throughout the provision, the $150,000 amount is charac-\nterized as a deferred payment for the total number of cylin-\nders produced. It does not purport to be a liquidated damages\nprovision for failure to comply with the timeliness require-\nment of the audit, although ARC would have the court treat\nit as such. “Liquidated damages refers to ’a specific sum of\nmoney that has been expressly stipulated by the parties to a\ncontract as the amount of damages to be recovered by one\nparty for a breach of the agreement by the other, whether it\nexceeds or falls short of actual damages.” Officer v. Chase Ins.\nLife & Annuity Co., 541 F.3d 713, 716 (7th Cir. 2008), quoting\nTime Warner Entm’t Co. v. Whiteman, 802 N.E.2d 886, 893 (Ind.\n2004). Typically, a liquidated damages clause provides for the\nforfeiture of a specified sum of money upon breach without\nproof of damages. Time Warner, 802 N.E.2d at 893. The lan-\nguage in the contract in this case does not allocate any amount\nto be forfeited for the failure to complete the audit in the spec-\nified time. ARC has pointed to no evidence to call into ques-\ntion the court’s conclusion that “the purpose of the deadline\nwas to ensure that if Plaintiffs delivered enough cylinders to\nwarrant recovery of some or all of the Cylinder Deferred Pay-\nment, they would receive payment by that deadline,” and that\nif they produced fewer than 5,300 cylinders, they would not\nbe entitled to any of the $150,000 deferred payment. The audit\nreflected a significant shortfall in the 6,500-cylinder amount\nenvisioned in the Agreement, and the 4,663 cylinders ac-\ncounted for was far below the 5,300 threshold that would trig-\nger the Cylinder Deferred Payment. Because ARC was not en-\ntitled to any of the Cylinder Deferred Payment in that it pro-\nvided less than the 5,300 cylinders, it could not have been\ndamaged by the delay in completing the audit. When zero\n\f10 No. 18-1546\n\ndollars are owed, the failure to pay it earlier is without conse-\nquence.\n ARC asserts that reading the provision as entitling it only\nto damages related to the delay would allow American to\nreap a windfall, because it could choose to never complete the\naudit and would not have to pay the $150,000 Cylinder De-\nferred Payment. That argument is meritless. The issue as to\nthe appropriate damages if American entirely failed to con-\nduct the audit at all is distinct from the issue of the damages\nthat would be appropriate if there was merely a delay in com-\npleting the audit, and nothing in the contract remotely sug-\ngests that American could choose to forego the audit entirely\nand retain the $150,000 amount. There is no argument here\nthat American did not act in good faith in its adherence to the\naudit requirement of the contract.\n ARC maintains, however, that the audit requirement of\nthe contract was not met because American never physically\ninspected and counted each asset cylinder. ARC insists that\nabsent such physical inspection of each of the approximately\n6,500 alleged asset cylinders, American failed to complete the\naudit mandated by the contract. But nothing in the contract\npurports to limit the audit to physical inspections. The con-\ntract requires only that the “[t]he Asset Cylinders in the pos-\nsession of Seller and in possession of customers shall be\ncounted and verified as part of the inventory under Section\n2.1(e).” The manner in which those asset cylinders shall be\ncounted and verified is not specified, and no requirement of\nphysical verification is included. The means of counting the\nasset cylinders set forth by the district court reflected a rea-\nsonable means of ascertaining a trustworthy count entirely\n\fNo. 18-1546 11\n\nconsistent with the “count and verify” requirement. For in-\nstance, American physically counted the asset cylinders at the\nVincennes site, and credited ARC with the full amount of as-\nset cylinders it claimed for each customer in the field where\nthe pattern of payments and exchanges corroborated those\nnumbers. Where a large number of exchanges or record ab-\nnormalities raised questions as to the proper count, physical\nverification of the asset cylinders was conducted. American,\nthen, credited the records provided by ARC, and confirmed\nthe numbers where the validity of those records was ques-\ntionable. Nothing in the contract precludes that approach as a\nmeans of counting and verifying the asset cylinders in the\npossession of the Seller and the customers, and in fact, the re-\nliance on and acceptance of ARC’s records would presumably\nbenefit ARC. Other than the 16 cylinders in the mine, which\nAmerican credited, ARC has identified no instance in which\nthe numbers reached were inaccurate. The court’s finding that\nthe audit was completed on May 22, 2015, was consistent with\nthe record and certainly was not clearly erroneous.\n Even given the court’s determination that the audit was\nvalid, ARC argues that the court erred in awarding damages\nto American. First, ARC asserts that the damage award is im-\nproper because ARC never promised to deliver a certain num-\nber of cylinders but rather pledged only to transfer all of the\ncylinders in its possession which was expected to total ap-\nproximately 6,500. Under this reasoning, a shortfall, no matter\nhow substantial between that 6,500 number and the actual\nnumber transferred, would not entitle American to any com-\npensation. The language of the contract, however, supports\nthe district court’s contrary interpretation. The contract pro-\nvides for payments to be made based on the degree to which\nthe asset cylinder count deviated from 6,500 providing that\n\f12 No. 18-1546\n\n“any shortage of Asset Cylinders shall be charged at the rate\nof $125.00 per unit against the Cylinder Deferred Payment,\nand any excess of Asset Cylinders will be added at the rate of\n$125.00 per unit to the Cylinder Deferred Payment.” The\nshortfall in this case was so substantial that it exceeded the\n$150,000 held in reserve as a Cylinder Deferred Payment. The\ndistrict court did not err in holding that the contract contem-\nplated the payment of $125 to American for each asset cylin-\nder below that 6,500 number, first in the form of a credit to the\nCylinder Deferred Payment and then, when that source was\ndepleted, in the form of damages payable from ARC to Amer-\nican. Nor is there any support for ARC’s bald contention that\nthe $150,000 Cylinder Deferred Payment was a liquidated\ndamages provision which limited American’s recovery to re-\ntention of that $150,000 amount. Nothing in the contractual\nlanguage supports that argument. See Officer, 541 F.3d at 716.\n Finally, ARC claims that the district court erred in basing\nits damage award on a $125 valuation for the cylinders. ARC\nasserts that the valuation cannot be proper because if all 6,500\nasset cylinders were valued at $125, the total of $812,500\nwould greatly exceed the contract price for all of ARC’s fixed\nassets and asset cylinders of $603,905. As ARC recognizes,\nhowever, asset cylinders can vary in value from $30 to $1,200\neach, and therefore the value of the asset cylinders which\nARC failed to provide would depend on the cylinder type.\nThe parties to the contract determined that the cylinders\nshould be valued at $125, with that amount deducted from\nthe Cylinder Deferred Payment for a shortfall or added to the\nCylinder Deferred Payment if the asset cylinder number ex-\nceeded 6,500. The court did not err in using the valuation for\nthe cylinders that the parties themselves deemed the proper\nnumber.\n\fNo. 18-1546 13\n\n The decision of the district court is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368033/", "author_raw": "Ilana Kara Diamond Rovner"}]}	EASTERBROOK	ROVNER		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590780/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,846	UNITED STATES of America, Plaintiff-Appellee, v. Lawrence D. ADKINSON, Defendant-Appellant.	United States v. Lawrence D. Adkinson	2019-02-14	17-3381	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and KANNE, and ST. EVE, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3381\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nLAWRENCE D. ADKINSON,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, New Albany Division.\n No. 4:14-cr-00025-2 — Tanya Walton Pratt, Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 14, 2019\n ____________________\n Before WOOD, Chief Judge, and KANNE, and ST. EVE, Cir-\ncuit Judges.\n PER CURIAM. Lawrence Adkinson, Jeﬀrey Kemp, Paul\nGrissom, and Justin Martin (all of whom are appellants in this\nconsolidated appeal) were prosecuted for robbing T-Mobile\nand other cellphone stores. Adkinson, who is African-Ameri-\ncan, challenges two of the district court’s pretrial rulings. The\nﬁrst ruling denied his motion to transfer the case to a venue\nwhere he potentially would have had more African-American\n\f2 No. 17-3381\n\njurors on the venire. The second ruling denied his motion to\nsuppress information that T-Mobile gave to law enforcement\nabout the approximate location of his cellphone during the\nrobberies. Because the district court did not abuse its discre-\ntion in denying Adkinson’s motion to transfer venue, nor vi-\nolate his Fourth Amendment rights by admitting certain\ncell-site location information, we aﬃrm the judgment against\nAdkinson. We address the other defendants’ appeals in a sep-\narate order.\n I. Background\n Adkinson and others, in July 2015, robbed a T-Mobile\nphone store in Clarksville, Indiana, and then a Verizon store\nin Kentucky the next day. With handguns drawn, they stole\napproximately 100 cell phones and other items. They later\nrobbed nine additional stores, including three more T-Mobile\nstores.\n T-Mobile investigated the first robberies. As part of its in-\nvestigation, T-Mobile conducted “tower dumps”: it pulled\ndata from cell sites near the first two victim stores to identify\nwhich phones had connected to them—and thus were close to\nthe crimes. From these dumps, T-Mobile determined that only\none T-Mobile phone was near both robberies and that Adkin-\nson was an authorized user on that phone’s account. Each\ntime a phone connects to any cell site, it also generates a time-\nstamped record known as cell-site location information. From\nits records, T-Mobile determined where Adkinson’s phone\ntraveled. It went from Chicago to the Indiana-Kentucky bor-\nder, approached the Verizon store the day it was robbed, and\nreturned to Chicago that evening. T-Mobile voluntarily gave\n\fNo. 17-3381 3\n\nthis data to the FBI. The record does not reflect whether T-Mo-\nbile did so on its own or at the FBI’s request. T-Mobile deliv-\nered similar data after two more of its stores were robbed.\n T-Mobile’s privacy policy allowed T-Mobile to disclose in-\nformation about its phones’ users. It may do so “[t]o satisfy\nany applicable … legal process or enforceable governmental\nrequest” or “[t]o protect [its] rights or interests, property or\nsafety or that of others.” Law enforcement used the infor-\nmation from T-Mobile to obtain a court order under the\nStored Communications Act, 18 U.S.C. § 2703, granting the\nFBI access to additional cell-site data.\n The government charged Adkinson in the Southern Dis-\ntrict of Indiana, New Albany Division (which encompasses\nClarksville). Before his trial, Adkinson brought two motions\nrelevant to this appeal. First, he moved to suppress “any and\nall evidence obtained through cellphone records and/or trian-\ngulation of cellphone numbers” because, he argued, the gov-\nernment obtained it without a warrant, in violation of the\nFourth Amendment. The district court denied the motion. It\nruled that T-Mobile was not the government’s agent when it\ntransmitted Adkinson’s location data, and Adkinson had con-\nsented to T-Mobile’s cooperation with the government, so no\nFourth Amendment violation had occurred.\n The second motion concerned venue. The district court set\na pretrial motion deadline to file change of venue motions.\nAdkinson did not timely file such a motion. Instead, on the\nmorning of trial, after observing that only one African-Amer-\nican prospective juror was on the jury venire, Adkinson\nmoved during voir dire to transfer the case to a venue with “a\nbetter pool of African Americans,” like Indianapolis. See FED.\n\f4 No. 17-3381\n\nR. CRIM. P. 12(b)(3)(A)(i), 21. Although the court was sympa-\nthetic to the basis for the motion, the court observed that Ad-\nkinson’s morning-of-trial motion was “extremely untimely”\n(it was due a month earlier), and denied it. The court further\nnoted that Adkinson could have obtained the racial composi-\ntion of the judicial division—about one percent African\nAmerican—well in advance of trial. The government added\nthat the population in the Indianapolis Division of the South-\nern District of Indiana was only four-percent African Ameri-\ncan, and the court agreed, adding that many of the counties\nin that division had “very sparse” African-American popula-\ntions. Indeed, Adkinson acknowledged during oral argument\nthat there “is not a significantly larger minority population”\nin the Indianapolis Division than there is in the New Albany\nDivision.\n A jury convicted Adkinson of conspiracy to commit rob-\nbery, 18 U.S.C. § 1951(a), conspiracy to brandish a firearm to\nfurther a crime of violence, id. § 924(o), robbery, id. § 1951(a),\nand brandishing a firearm to further a crime of violence,\nid. § 924(c). The district court sentenced him to 346 months in\nprison.\n II. Discussion\n A. Motion to Change Venue\n On appeal, Adkinson first challenges the district court’s\ndenial of his motion to change venue. He argues that the\nnearly all-white jury pool subjected him to “the substantial\nrisk of implicit racial bias.” We review the district court’s rul-\ning for an abuse of discretion. United States v. Jordan, 223 F.3d\n676, 685–86 (7th Cir. 2000).\n\fNo. 17-3381 5\n\n The district court did not abuse its discretion in denying\nAdkinson’s motion because, regardless of his arguments re-\ngarding the emerging science on implicit bias, the Constitu-\ntion does not entitle a defendant to a venire of any particular\nracial makeup. See Taylor v. Louisiana, 419 U.S. 522, 538 (1975);\nsee also United States v. Stephens, 514 F.3d 703, 709 (7th Cir.\n2008) (“[A] defendant has no right to a ‘petit jury composed\nin whole or in part of persons of [the defendant’s] own race.’”)\n(quoting Powers v. Ohio, 499 U.S. 400, 404 (1999) (alteration in\noriginal)). Adkinson’s attempt to create a presumption of im-\nplicit racial bias based on the racial composition of the jury\nvenire fails. To the extent Adkinson subjectively worried\nabout implicit bias, voir dire was the appropriate vehicle to\naddress it.\n Furthermore, federal law authorized the government to\nprosecute Adkinson in any district where he offended. 18\nU.S.C. § 3237(a); FED. R. CRIM. P. 18. Adkinson committed the\nfirst robbery in Clarksville, Indiana, and the government\nprosecuted him in the corresponding division. Once there, the\nSixth Amendment entitled Adkinson to a venire that was a\nfair cross section of the community and from which the gov-\nernment did not intentionally exclude anyone based on race.\nSee Taylor, 419 U.S. at 538. Adkinson does not dispute that he\nreceived this. In fact, the African-American who was in the\nvenire served on the jury.\n Adkinson had the opportunity to tease out any potential\njuror bias during voir dire, see United States v. Nettles, 476 F.3d\n508, 514 (7th Cir. 2007), and he has never asserted that any of\nthe jurors in his case actually exhibited bias or that he was\nprejudiced in any way. In United States v. Fox, 878 F.3d 574,\n578 (7th Cir. 2017), and United States v. Sinclair, 770 F.3d 1148,\n\f6 No. 17-3381\n\n1155–56 (7th Cir. 2014), we affirmed the denial of the defend-\nants’ eve-of-trial motions to change counsel, reasoning that\nthe cost and inconvenience to the jurors and witnesses out-\nweighed the “pure conjecture” that the defendants would\nsuccessfully retain new representation. Like the defendants in\nFox and Sinclair, Adkinson only speculates that he would\nhave had a more diverse jury pool in the Indianapolis Divi-\nsion.\n Finally, Adkinson’s motion came too late because Adkin-\nson did not abide by the court’s schedule and offered no rea-\nson for his tardiness or failure to comply with the district\ncourt’s pretrial scheduling order. See FED. R. CRIM. P. 12(c)(3);\nUnited States v. Suggs, 703 Fed. Appx. 425, 426 (7th Cir. 2017)\n(holding that district court did not abuse its discretion in de-\nclining to consider an untimely motion).\n B. Motion to Suppress Cell-Site Data\n Adkinson next argues that the district court erroneously\ndenied his motion to suppress the cell-site data that T-Mobile\ncollected. The district court denied the motion to suppress be-\ncause T-Mobile was not acting as a government agent when it\ncollected and shared the data with law enforcement, and be-\ncause Adkinson did not have a reasonable expectation of pri-\nvacy in his location. At oral argument, Adkinson clarified that\nhe is principally challenging the court’s ruling regarding the\ndata collected from the tower dumps, rather than the cell-site\nlocation information because the government obtained the\ncell-site information pursuant to a court order. His argument\nrelies heavily on the Supreme Court’s recent decision in Car-\npenter v. United States, 138 S. Ct. 2206 (2018). In Carpenter, the\nSupreme Court held that the government may not, without a\n\fNo. 17-3381 7\n\nwarrant supported by probable cause, compel a cellular ser-\nvice company to search for and supply the data that its cell\nsites reveal about a user’s past movements. Id. at 2221. Adkin-\nson asserts that, even though the record does not show that\nthe government compelled T-Mobile to provide its data, as a\n“public utility replacement,” T-Mobile is a “de facto govern-\nment agent.” Therefore, he concludes, its collection of this\ndata without a warrant violated the Fourth Amendment.\n The government responds that the Fourth Amendment\nwas not violated, and we agree for three primary reasons.\nFirst, T-Mobile is a private party, and Adkinson has not\nshown that it was the government’s agent. “A search or sei-\nzure by a private party does not implicate the Fourth Amend-\nment” unless the private party “is acting as an instrument or\nagent of the government.” United States v. Shahid, 117 F.3d 322,\n325 (7th Cir. 1997) (internal quotation omitted). To demon-\nstrate agency, Adkinson must establish either that T-Mobile\nagreed to act on the government’s behalf and to be subject to\nits control or that the government ratified T-Mobile’s conduct\nas its own. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir.\n2011) (citing RESTATEMENT (THIRD) OF AGENCY §§ 1.01, 4.01\n(2006)). T-Mobile, however, acted in its own interest to pre-\nvent more robberies of its stores and recover its property\nwhen the company furnished data to the government; there is\nno evidence that it expected to receive any benefit from the\ngovernment. Providing that data did not transform T-Mobile\ninto an agent of the state. See Shahid, 117 F.3d at 326. Nor is\nT-Mobile, as a carrier of cellular service, a government agent\nsimply because it is part of that industry. See United States v.\nKoenig, 856 F.2d 843, 847–48 (7th Cir. 1988). And the govern-\nment’s mere receipt of T-Mobile’s data is not a ratification of\n\f8 No. 17-3381\n\nT-Mobile’s conduct. See Coolidge v. New Hampshire, 403 U.S.\n443, 489–90 (1971); Aldridge, 642 F.3d at 541–52.\n Second, regardless of agency, Adkinson’s Fourth Amend-\nment rights were still not violated because Adkinson con-\nsented to T-Mobile collecting and sharing his cell-site infor-\nmation. A defendant can voluntarily consent in advance to a\nsearch as a condition of receiving contracted services.\nSee Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 872\n(7th Cir. 2013). As a condition of using a phone serviced by\nT-Mobile, Adkinson agreed to T-Mobile’s policy that T-Mo-\nbile could disclose information when reasonably necessary to\nprotect its rights, interests, property, or safety, or that of oth-\ners. And T-Mobile, in accordance with its policy, shared infor-\nmation with law enforcement after one of its stores was\nrobbed at gunpoint.\n Third, Carpenter itself does not help Adkinson. The case\ndid not invalidate warrantless tower dumps (which identified\nphones near one location (the victim stores) at one time (during\nthe robberies)) because the Supreme Court declined to rule\nthat these dumps were searches requiring warrants. 138 S. Ct.\nat 2220. Adkinson also relies on policy guidance from the De-\npartment of Justice about cell-site data. But that policy guid-\nance, by its own terms, “is not intended to and does not create\nany right, benefit, trust, or responsibility.”\n Finally, even if Adkinson sought to challenge the cell-site\nlocation data that the government later collected through the\norder it obtained under the Stored Communications Act, the\nchallenge would be meritless. Adkinson did not challenge the\nadmission of such data below and cannot do so now. As in\nThomas, “though the Supreme Court’s Carpenter decision in-\ndicates a potential Fourth Amendment problem with the cell-\n\fNo. 17-3381 9\n\nsite data used here, [Adkinson] cannot raise this argument\nnow, after failing to raise it in the district court.” United States\nv. Thomas, 897 F.3d 807, 815 (7th Cir. 2018). He has not at-\ntempted to show good cause and Thomas suggests the inter-\nvening Carpenter decision would not constitute good cause. In\nany event, the good-faith exception to the exclusionary rule\nwould apply. See United States v. Curtis, 901 F.3d 846, 849 (7th\nCir. 2018). Law enforcement reasonably relied on settled law\nthat the information from T-Mobile was proper, and the Su-\npreme Court had not yet decided Carpenter when the govern-\nment received the information.\n III. Conclusion\n The judgment of the district court is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368099/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Cir cuit", "ST EVE": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590846/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,847		United States v. Dimitris Terry	2019-02-14	18-1305	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and SYKES and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐1305 \nUNITED STATES OF AMERICA, \n Plaintiff‐Appellee, \n v. \n\nDIMITRIS TERRY, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 11 CR 887‐3 — Ronald A. Guzmán, Judge. \n ____________________ \n\n ARGUED OCTOBER 30, 2018 — DECIDED FEBRUARY 14, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and SYKES and BARRETT, Circuit \nJudges. \n BARRETT, Circuit Judge. Is it reasonable for officers to as‐\nsume that a woman who answers the door in a bathrobe has \nauthority to consent to a search of a male suspect’s residence? \nWe hold that the answer is no. The officers could reasonably \nassume that the woman had spent the night at the apartment, \nbut that’s about as far as a bathrobe could take them. Without \n\f2 No. 18‐1305 \n\nmore, it was unreasonable for them to conclude that she and \nthe suspect shared access to or control over the property. \n I. \n In February 2012, a team of agents from the Drug Enforce‐\nment Agency (DEA) executed an arrest warrant for Dimitris \nTerry related to his role in a conspiracy to possess and distrib‐\nute heroin. The agents didn’t want others to know that Terry \nhad been arrested because they hoped to secure his coopera‐\ntion in the broader investigation; thus, they planned a quick \nand quiet arrest. They waited for him to return home from \ntaking his son to school one morning, arrested him when he \ngot out of his car, and took him to the DEA’s Chicago field \ndivision for questioning. \n A few agents remained behind. Two of them knocked on \nthe door of Terry’s apartment, and a woman answered, wear‐\ning a bathrobe and looking sleepy. The agents identified \nthemselves, explained that they had just arrested Terry, and \nasked to come inside. They didn’t ask the woman who she \nwas, how she was related to Terry, or whether she lived at the \napartment. \n Without hesitation, the woman let the agents in, and they \nimmediately presented her with a consent‐to‐search form. Af‐\nter she both read the form and had it read aloud to her, she \nsigned it, and the search began. Only then, after the search \nwas underway, did the agents ask the woman who she was. \nShe identified herself as Ena Carson, the mother of Terry’s \nson. She explained that her son lived at Terry’s apartment, but \nshe did not. Nevertheless, the agents continued the search for \nroughly the next hour. They recovered letters addressed to \n\fNo. 18‐1305 3\n\nTerry showing proof of residence, four cell phones, and a sus‐\npected drug ledger. \n Meanwhile, two DEA agents conducted a post‐arrest in‐\nterview of Terry back at the field office. Before asking any \nquestions, the agents read Terry his Miranda rights, which \nwere also spelled out on an advice‐of‐rights form. The agents \nsigned the form, but Terry refused to do so. When asked if he \nunderstood his rights, Terry explained that “he was not going \nto sign the form or initial it; that, you know, this wasn’t his \nfirst go‐around with law enforcement … but he was willing \nto talk.” The agents understood Terry’s statement to mean \nthat he had prior experience with law enforcement, under‐\nstood his rights, and was knowingly and voluntarily waiving \nthem by agreeing to talk with the agents. So they wrote “Ver‐\nbal Only” on the advice‐of‐rights form, indicating that Terry \n“gave verbal consent that he understood the form.” Terry \nthen answered the agents’ questions about the case and made \nincriminating statements about his role in the conspiracy to \ndistribute heroin. \n Terry was charged with possession, distribution, and con‐\nspiracy to possess and distribute heroin in violation of 21 \nU.S.C. §§ 841(a) and 846. He moved to suppress both the evi‐\ndence recovered from the search and his post‐arrest state‐\nments to the agents. First, Terry argued that the search was \nunlawful because Carson had neither actual nor apparent au‐\nthority to consent to it—all the agents knew at the time of con‐\nsent was that she answered the door at Terry’s apartment \nwearing a bathrobe. Had the agents simply inquired, Terry \nsaid, they would have discovered that Carson did not live at \nthe apartment. Second, Terry claimed that he had not under‐\nstood that he was waiving his Miranda rights when he \n\f4 No. 18‐1305 \n\nanswered the agents’ questions. Thus, he argued, the waiver \nwas invalid and his post‐arrest statements should be sup‐\npressed. \n After an evidentiary hearing at which the agents and Terry \ntestified, the district court denied both motions. As to the first, \nthe court determined that it was reasonable for the agents to \nassume that Carson lived at the residence and had authority \nto consent to the search because (1) she was permitted to be \nhome when Terry was not; (2) her son resided at the apart‐\nment; (3) the bathrobe “indicated she was more than a mere \ntemporary guest”; and (4) she consented to the search without \nhesitation. \n On the second motion, the court found Terry’s testimony \nthat he did not know that his statements could be used against \nhim “simply not credible” given his many encounters with \nlaw enforcement—he has been arrested at least seventeen \ntimes since he turned eighteen—as well as his level of educa‐\ntion and success in business. The court thought that this was \nstrong evidence that Terry understood his rights. And be‐\ncause he understood his rights, the court concluded that \nTerry’s answers to the agents’ questions provided “a clear \nand unequivocal waiver of his right to remain silent.” \n After a bench trial, the district court found Terry guilty \nand sentenced him to 168 months’ imprisonment. Terry asks \nus to vacate his conviction on the ground that the district \ncourt erroneously denied his motions to suppress. \n II. \n In reviewing a district court’s denial of a motion to sup‐\npress, we review the district court’s legal conclusions de novo \nand its underlying factual determinations for clear error. \n\fNo. 18‐1305 5\n\nUnited States v. Richards, 741 F.3d 843, 847 (7th Cir. 2014). We \ngive “special deference to the district court’s credibility deter‐\nminations because the resolution of a motion to suppress is \nalmost always a fact‐specific inquiry, and it is the district \ncourt which heard the testimony and observed the witnesses \nat the suppression hearing.” United States v. Burnside, 588 F.3d \n511, 517 (7th Cir. 2009). \n A. \n As a rule, the Fourth Amendment requires the govern‐\nment to get a warrant before searching someone’s property. \nU.S. CONST. amend. IV; see also United States v. Basinski, 226 \nF.3d 829, 833 (7th Cir. 2000). But the warrant requirement is \nsubject to several “carefully defined” exceptions. See Coolidge \nv. New Hampshire, 403 U.S. 443, 474 (1971). One is consent from \na person with actual or apparent authority to give it. Basinski, \n226 F.3d at 833–34. When a person allows a third party to ex‐\nercise authority over his property, he “assume[s] the risk that \nthe third party might permit access to others, including gov‐\nernment agents.” Id. at 834 (citing United States v. Matlock, 415 \nU.S. 164, 171 n.7 (1974)). \n The government does not claim that Carson had actual au‐\nthority to consent to the search of Terry’s apartment. The dis‐\npute is about whether she had apparent authority, which ex‐\nists when “the facts available to the officer at the moment … \n‘warrant a man of reasonable caution in the belief’ that the \nconsenting party had authority over the premises,” even if the \nperson actually had no such authority. Illinois v. Rodriguez, 497 \nU.S. 177, 188 (1990) (alteration in original) (citation omitted). \nAn officer might reasonably believe that a third party has au‐\nthority over certain property if the third party appears to have \n“joint access or control for most purposes.” United States v. \n\f6 No. 18‐1305 \n\nRyerson, 545 F.3d 483, 487 (7th Cir. 2008) (quoting Matlock, 415 \nU.S. at 171 n.7). \n To determine whether the officers’ belief was reasonable, \nwe consider “what the officers knew at the time they sought con‐\nsent, not facts that came to light after the search began.” United \nStates v. Alexander, 573 F.3d 465, 474 (7th Cir. 2009) (emphasis \nadded). If the officers did not know enough to reasonably \nconclude that the third party had authority over the premises, \nthey had “a duty to inquire further” before they could rely on \nher consent to the search. United States v. Goins, 437 F.3d 644, \n648 (7th Cir. 2006). As one treatise puts it: “sometimes the \nfacts known by the police cry out for further inquiry, and \nwhen this is the case it is not reasonable for the police to pro‐\nceed on the theory that ‘ignorance is bliss.’” 4 WAYNE R. \nLAFAVE, SEARCH AND SEIZURE § 8.3(g) (5th ed. 2018). \n When the search began, the agents had four facts: Terry \nleft Carson alone in the apartment for about forty‐five \nminutes, Carson was wearing a bathrobe, she appeared \nsleepy, and she consented to the search without hesitation. \nThey did not know who she was, what her relationship to \nTerry was, why she was in the apartment, how long she had \nbeen in the apartment, or whether she lived there. At that \npoint, the agents did not know that Carson was the mother of \nTerry’s child—so it was wrong for the district court to rely on \nthat fact in evaluating Carson’s apparent authority. See Alex‐\nander, 573 F.3d at 474 (explaining that facts that come to light \nafter a search begins cannot support apparent authority to \nconsent). \n The facts that the agents had made it reasonable for them \nto conclude that Carson had spent the night at Terry’s apart‐\nment. That might have been an indication that she lived with \n\fNo. 18‐1305 7\n\nhim, but there are multiple other possibilities. She could have \nbeen a one‐time guest, a periodic guest, a friend or relative \nvisiting for a couple of days—or she may have had some other \nrelationship to Terry. And the existence of so many other \nequally plausible possibilities should have prompted the \nagents to “inquire further.” See Goins, 437 F.3d at 648. \n But they did not. Instead, they thought that it was safe to \nassume that Carson had spent the night in the apartment, \ntherefore lived in the apartment, therefore had joint access to \nor control over the apartment for most purposes, and there‐\nfore had the authority to consent to the search. This kind of \ninferential pileup falls short of the reasonableness required by \nthe Fourth Amendment. See Rodriguez, 497 U.S. at 188–89. A \nbathrobe alone does not clothe someone with apparent au‐\nthority over a residence, even at 10:00 in the morning. \n Because the government has failed to demonstrate that an \nexception to the warrant requirement applies, the evidence \ndiscovered as a result of the search must be suppressed. See \nBasinski, 226 F.3d at 834. \n B. \n Terry also argues that the statements that he made in his \npost‐arrest interview should be suppressed because he did \nnot knowingly waive his Miranda rights by choosing to speak \nwith the agents. A defendant’s “statement during a custodial \ninterrogation is inadmissible at trial unless the prosecution \ncan establish that the accused ‘in fact knowingly and volun‐\ntarily waived Miranda rights’ when making the statement.” \nBerghuis v. Thompkins, 560 U.S. 370, 382 (2010) (citation and \nalteration omitted). Knowing waiver requires “a full aware‐\nness of both the nature of the right being abandoned and the \n\f8 No. 18‐1305 \n\nconsequences of the decision to abandon it.” Id. (citation omit‐\nted). Terry notes that he never explicitly waived his right to \nremain silent and points to his refusal to sign the advice‐of‐\nrights form as evidence that he did not knowingly waive his \nMiranda rights. But this argument is squarely foreclosed by \nSupreme Court precedent. \n In Berghuis v. Thompkins, the defendant refused to sign a \nform acknowledging his Miranda rights. He remained largely \nsilent during questioning that lasted about three hours, but he \nultimately confessed to the crime. Id. at 375–76. The Supreme \nCourt rejected his Fifth Amendment challenge. It explained \nthat a knowing waiver can be express or implied, id. at 384, \nand that “[a]s a general proposition, the law can presume that \nan individual who, with a full understanding of his or her \nrights, acts in a manner inconsistent with their exercise has \nmade a deliberate choice to relinquish the protection those \nrights afford,” id. at 385. Consistent with that principle, it con‐\ncluded that the defendant knowingly waived his rights be‐\ncause (1) his understanding of English was sufficient evidence \nthat he understood the rights that had been presented, id. at \n385–86, and (2) the fact that he answered the detective’s ques‐\ntions was a sufficient “course of conduct indicating waiver,” \nid. at 386 (citation omitted). \n We agree with the district court that Terry’s education, so‐\nphistication, and familiarity with the criminal justice system \nprovides sufficient evidence that he understood his rights \nwhen the agents read them to him. See id. at 385–86; see also \nBurnside, 588 F.3d at 517. And as in Berghuis, Terry’s willing‐\nness to speak with the agents was a “course of conduct indi‐\ncating waiver,” notwithstanding his refusal to sign the ad‐\nvice‐of‐rights form. 560 U.S. at 386 (citation omitted). Thus, \n\fNo. 18‐1305 9\n\nthe district court correctly concluded that Terry knowingly \nwaived his right to remain silent and properly denied his mo‐\ntion to suppress. \n * * * \n The evidence discovered in Terry’s apartment was the \nfruit of an unconstitutional search, so the district court should \nhave granted his motion to suppress it. But the district court \nproperly denied Terry’s motion to suppress his post‐arrest \nstatements. We therefore REVERSE in part, VACATE the con‐\nviction, and REMAND for proceedings consistent with this \nopinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368100/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	SYKES	BARRETT	1	{"WOOD": ", Chief", "SYKES": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590847/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,848		Marshall Spiegel v. Corrine McClintic	2019-02-14	18-1070	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, KANNE, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Michael Stephen Kanne", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐1070 \nMARSHALL SPIEGEL, \n Plaintiff‐Appellant, \n v. \n\nCORRINE MCCLINTIC and VILLAGE OF WILMETTE, \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 16 C 9357 — Sara L. Ellis, Judge. \n ____________________ \n\n ARGUED DECEMBER 4, 2018 — DECIDED FEBRUARY 14, 2019 \n ____________________ \n\n Before BAUER, KANNE, and BRENNAN, Circuit Judges. \n KANNE, Circuit Judge. Matthew Spiegel believes that Cor‐\nrine McClintic (and her husband William) have been violating \ncondominium association rules since the McClintics pur‐\nchased a unit in the building where he lives. To document \ntheir perceived violations, Spiegel took to photographing and \nfilming the McClintics. In response to his less‐than‐subtle sur‐\nveillance, Corrine McClintic began filing police reports. Spie‐\ngel was not arrested. But members of the Village of Wilmette \n\f2 No. 18‐1070 \n\nPolice Department threatened him with arrest for disorderly \nconduct if he persists in photographing and videotaping the \nMcClintics. Spiegel subsequently sued Corrine and the Vil‐\nlage of Wilmette. In his second amended complaint—the dis‐\nmissal of which Spiegel now appeals—he argues that Wil‐\nmette and McClintic conspired together to violate his consti‐\ntutional rights. He further claims that Corrine intruded upon \nhis seclusion, in violation of Illinois law, by photographing \nthe interior of his condominium. Because Spiegel has not \nidentified a constitutional violation or shown that he suﬀered \ndamages from the alleged intrusion upon his seclusion, we \naﬃrm the dismissal. \n I. BACKGROUND \n We take the well‐pleaded allegations from Spiegel’s sec‐\nond amended complaint as true.1 Marshall Spiegel has lived \nin a condominium building in Wilmette, Illinois for 22 years. \nIn 2015, Corinne and William McClintic bought a unit in the \nbuilding. Despite condominium association rules which pro‐\nhibit renting out units, the McClintics did so. They do not live \nin the building but use the building pool almost daily. \n 1. Spiegel’s Surveillance of Corrine McClintic \n Spiegel explains that, “to protect himself from false allega‐\ntions,” he began “documenting violations of the Association’s \n\n\n \n1 For reasons explained below, Spiegel’s motion for leave to file a third \n\namended complaint was untimely. Accordingly, the few additional fac‐\ntual allegations Spiegel advances in that proposed complaint are not rele‐\nvant to our analysis. Spiegel also makes several new factual assertions in \nhis brief. Those facts would not change our analysis even if Spiegel had \nincluded them in his complaint. \n\fNo. 18‐1070 3 \n\nrules by the McClintics.” Specifically, he began photo‐\ngraphing and videotaping the couple. His second amended \ncomplaint is interspersed with pictures of the McClintics \naround the building. In most of the photos, the person pic‐\ntured is looking directly at the camera. \n The tensions between Spiegel and the McClintics quickly \nescalated. Corrine filed numerous police reports between \nJune and October 2016. In one report—in June 2016—Corrine \ntold oﬃcers that Spiegel jumped in front of her car and pho‐\ntographed her. In response, Wilmette police oﬃcers warned \nSpiegel against causing further problems. Spiegel told the of‐\nficers that the report contained false allegations and argued \nthat his conduct did not violate the disorderly conduct ordi‐\nnance, but the oﬃcers “insisted that Spiegel had broken the \nlaw.” On September 20, 2016, Spiegel videotaped Corrine, \nWilliam, and another unit owner talking near the pool. Cor‐\nrine reported to the Wilmette police that Spiegel was vide‐\notaping her in her bathing suit (an allegation he denies) and \nasked that they arrest him for disorderly conduct. On October \n7, 2016, Spiegel documented Corrine McClintic attempting to \nevade a process server in front of the condominium building. \nCorrine McClintic informed Spiegel that the Wilmette police \nhad promised to arrest him if he videotaped her again. She \nreported the incident. \n Spiegel also videotaped Corrine McClintic at a later, un‐\nspecified Association meeting. Once again, she threatened \nSpiegel with arrest if he continued videotaping her. The sec‐\nond amended complaint does not clarify whether McClintic \nfiled a police report. \n\f4 No. 18‐1070 \n\n 2. Corrine McClintic’s Surveillance of Spiegel \n Spiegel alleges that Corrine McClintic, not he, is the one \nengaged in illegal surveillance. He contends that, between \nMay 29 and June 4, 2016, she attempted to peer into Spiegel’s \nunit on three occasions. He suspects she took pictures. Spiegel \nalso caught Corrine McClintic “spying” on him by the pool \nand near the elevator. Spiegel does not specifically allege that \nhe reported these incidents to the Wilmette police. \n He does assert, however, that “Wilmette police have re‐\nfused to act on Spiegel’s claims against residents and others.” \nThe only specific example he gives in the second amended \ncomplaint involves an altercation at a “recent Association \nmeeting” where “a resident’s son‐in‐law battered Spiegel in \nfront of roughly ten people until security guards pulled him \noﬀ.” Spiegel reported the incident to Wilmette police, but they \ndeclined to charge the man. \n 3. Procedural History \n Spiegel filed suit against Corrine McClintic, alleging state \nlaw defamation and requesting a declaration that the First \nAmendment protected his public videotaping. Two days \nlater, he filed a first amended complaint which added the Vil‐\nlage of Wilmette as a defendant. The district court dismissed \nthe first amended complaint for lack of subject matter juris‐\ndiction but granted Spiegel leave to file a second amended \ncomplaint. In that complaint, Spiegel sought relief against \nCorrine McClintic and the Village of Wilmette under 42 U.S.C. \n§ 1983 and against Corrine McClintic for intrusion upon se‐\nclusion under Illinois law. On November 29, 2016, Spiegel \nfiled a motion for a temporary restraining order or prelimi‐\nnary injunction, and the defendants moved to dismiss. \n\fNo. 18‐1070 5 \n\n On September 27, 2017, the district court dismissed Spie‐\ngel’s claims against McClintic and denied Spiegel’s motion for \na preliminary injunction. On November 7, 2017, after supple‐\nmental briefing, the district court dismissed Spiegel’s claim \nagainst Wilmette and entered final judgment. \n Approximately one month later, Spiegel filed a combined \nmotion to vacate the judgment and to file a third amended \ncomplaint. In a text‐only order, the district court denied the \nmotion to vacate because it presented arguments already con‐\nsidered and rejected and denied the motion to amend for the \nsame reasons articulated in the November 7, 2017, order. Spie‐\ngel’s proposed third amended complaint was largely identical \nto his second amended complaint, but it oﬀered several addi‐\ntional factual allegations and named three Wilmette oﬃcers \nas defendants. This appeal followed. \n II. ANALYSIS \n Spiegel frames his suit as one meant to vindicate his con‐\nstitutional right to photograph and videotape in public. He \nessentially argues that the defendants violated his First \nAmendment rights by conspiring to prosecute him for lawful \nconduct. We need not reach the question of whether Spiegel \nhas, in fact, identified a constitutional violation because his \nclaims suﬀer from threshold deficiencies. \n We review a district court’s dismissal under Rule 12(b)(6) \nde novo. LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, \n941 (7th Cir. 2010). Like the district court, we construe the sec‐\nond amended complaint in a light most favorable to Spiegel. \nId. \n\f6 No. 18‐1070 \n\n 1. Spiegel Has Not Stated a § 1983 Claim Against McClintic \n The district court properly dismissed Spiegel’s § 1983 \nclaim against Corrine McClintic because she is a private citi‐\nzen. “To state a claim for relief in an action brought under \n§ 1983, respondents must establish … that the alleged depri‐\nvation was committed under color of state law.” Am. Mfrs. \nMut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). The under‐\ncolor‐of‐state‐law element means that § 1983 does not permit \nsuits based on private conduct, “no matter how discrimina‐\ntory or wrongful.” Id. at 50 (citation omitted). But a private \ncitizen can act under color of law if there is “evidence of a con‐\ncerted eﬀort between a state actor and that individual.” Fries v. \nHelsper, 146 F.3d 452, 457 (7th Cir. 1998). We call this the “con‐\nspiracy theory” of § 1983 liability. \n Spiegel argues that he can hold Corrine McClintic liable \nunder § 1983 merely by alleging aid to or encouragement of \nstate action by McClintic, not an actual conspiracy. That’s in‐\nconsistent with the clear holding in Fries. “To establish § 1983 \nliability through a conspiracy theory, a plaintiﬀ must demon‐\nstrate that: (1) a state oﬃcial and private individual(s) reached \nan understanding to deprive the plaintiﬀ of his constitutional \nrights, and (2) those individual(s) were willful participant[s] \nin joint activity with the State or its agents.” Id. (internal cita‐\ntions omitted). “[M]ere allegations of joint action or a conspir‐\nacy do not demonstrate that the defendants acted under color \nof state law and are not suﬃcient to survive a motion to dis‐\nmiss.” Id. at 458. \n Spiegel also argues that an “agreement among all the con‐\nspirators is not a necessary element of a civil conspiracy,” \nquoting Lenard v. Argento, 699 F.2d 874, 882 (7th Cir. 1983). But \n\fNo. 18‐1070 7 \n\nhe misquotes Lenard: the court actually stated that “[a]n ex‐\npress agreement” is not required. Id. (emphasis added). \n With the proper standard established, we attempt to find \na conspiracy within Spiegel’s allegations. Spiegel quotes lan‐\nguage in Gramenos v. Jewel Cos., asserting that “[i]f the police \npromise to arrest anyone the shopkeeper designates, then the \nshopkeeper is exercising the state’s function and is treated as \nif he were the state.” 797 F.2d 432, 435 (7th Cir. 1986). But Spie‐\ngel doesn’t allege that Wilmette police agreed to arrest Spiegel \nif directed to do so by McClintic. The oﬃcers clearly retained \nfull discretion, evidenced by their decision to not arrest Spie‐\ngel. \n We have repeatedly held that “the mere act of furnishing \ninformation to law enforcement oﬃcers” does not constitute \njoint activity in an unconstitutional arrest. Butler v. Goldblatt \nBros., 589 F.2d 323, 327 (7th Cir. 1978); see also Kelley v. Myler, \n149 F.3d 641, 649 (7th Cir. 1998) (“Bell called the police when \nKelley refused to leave the property after being asked to do so \nand then described the situation to the oﬃcers; he had no fur‐\nther communication with the oﬃcers. Such evidence does not \nsupport her charge that a conspiracy existed to arrest her in \nviolation of her civil rights.”); Gramenos, 797 F.2d at 435 (con‐\nfirming that “one who accuses someone else of a crime is [not] \nexercising the powers of the state”). In Brokaw v. Mercer Cty., \nwe distinguished Gramenos and Butler because “they did not \ninvolve an alleged agreement between the police and the pri‐\nvate citizens; rather, the private individuals acted inde‐\npendently from the government in making the police re‐\nports.” 235 F.3d 1000, 1016 (7th Cir. 2000). The diﬀerence in \nBrokaw was that two private citizens and a deputy sheriﬀ \nagreed to work together to remove a child from a home by \n\f8 No. 18‐1070 \n\nfiling false allegations of child neglect. Thus, the state actor \nintentionally set in motion the seizure of the child, knowing \nthat the removal was premised on false allegations. \n So the mere act of filing false police reports is not actiona‐\nble under § 1983. Spiegel never alleges that the oﬃcers were \naware that the reports were false, much less that they had pre‐\nviously agreed with McClintic to investigate such false re‐\nports. In fact, it’s unclear whether Corrine McClintic’s reports \ncontained falsehoods. He summarily alleges that the police re‐\nports involved false allegations, but never identifies them. Ra‐\nther, Spiegel emphasizes that the oﬃcers refused to listen to \nhis explanations for why his conduct was lawful. That’s not \nenough to establish a conspiracy. \n Because Spiegel has not plausibly alleged a conspiracy be‐\ntween McClintic and Wilmette to violate his constitutional \nrights, he failed to state a § 1983 claim against McClintic. \n 2. Spiegel Has Not Stated a Monell Claim Against Wilmette \n The district court properly dismissed Spiegel’s claim \nagainst Wilmette because “a municipality cannot be held lia‐\nble solely because it employs a tortfeasor.” Monell v. Depʹt of \nSoc. Servs. of City of New York, 436 U.S. 658, 691 (1978). Rather, \na municipality can be liable under § 1983 only “when execu‐\ntion of a government’s policy or custom, whether made by its \nlawmakers or by those whose edicts or acts may fairly be said \nto represent oﬃcial policy, inflicts the injury.” Id. at 694. \n We interpret that language as creating three bases for mu‐\nnicipal liability: “(1) an express policy that causes a constitu‐\ntional deprivation when enforced; (2) a widespread practice \nthat is so permanent and well‐settled that it constitutes a cus‐\n\fNo. 18‐1070 9 \n\ntom or practice; or (3) an allegation that the constitutional in‐\njury was caused by a person with final policymaking author‐\nity.” Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509, \n515 (7th Cir. 2007) (citation omitted). \n Spiegel argues that Wilmette’s disorderly conduct ordi‐\nnance constitutes the express policy of the City. The ordinance \ndoes not expressly criminalize public videography or photog‐\nraphy. Wilmette, IL., Code ch. 12‐4.1 (2017) (making it “un‐\nlawful for any person to knowingly do any act in such unrea‐\nsonable manner as to alarm or disturb another and to provoke \na breach of the peace in the village”). And, given the require‐\nment that the person act in an “unreasonable manner,” the \nordinance does not raise facial constitutional concerns. See \nGower v. Vercler, 377 F.3d 661, 670 (7th Cir. 2004) (explaining \nthat the materially identical Illinois disorderly conduct statute \ndoes not run afoul of the First Amendment); see also Am. Civil \nLiberties Union of Ill. v. Alvarez, 679 F.3d 583, 602 (7th Cir. 2012) \n(“[W]hen ‘speech’ and ‘nonspeech’ elements are combined, \nand the ‘nonspeech’ element (e.g., prostitution) triggers the \nlegal sanction, the incidental effect on speech rights will not \nnormally raise First Amendment concerns.”). Certainly, a per‐\nson can photograph and videotape in a sufficiently disruptive \nway that it would be not unconstitutional to arrest the indi‐\nvidual for disorderly conduct. \n Spiegel’s claim is thus about the enforcement of the stat‐\nute, not its facial constitutionality. “[A] written policy that is \nfacially constitutional, but fails to give detailed guidance that \nmight have averted a constitutional violation by an employee, \ndoes not itself give rise to municipal liability.” Szabla v. City of \nBrooklyn Park., 486 F.3d 385, 392 (8th Cir. 2007) (en banc). Spie‐\ngel does not allege that Wilmette anticipated or intended that \n\f10 No. 18‐1070 \n\nthe ordinance would be enforced to chill lawful, expressive \nconduct like photography. See Christensen v. Park City Mun. \nCorp., 554 F.3d 1271, 1280 (10th Cir. 2009) (explaining that en‐\nforcement of an ordinance can give rise to Monell liability if \nthe injury “was caused by a straightforward enforcement of \nthe ordinances, and not by any additional discretionary ac‐\ntions by the oﬃcers”). \n We do not think Spiegel has plausibly alleged an express \npolicy by Wilmette to enforce the disorderly conduct ordi‐\nnance unconstitutionally. He merely alleges that oﬃcers re‐\nceived reports of a disturbance, responded to the reports, and \nadvised an apparent provocateur to stop his surveillance. \nThat’s not enough. See Surplus Store & Exch., Inc. v. City of Del‐\nphi, 928 F.2d 788, 791 (7th Cir. 1991) (rejecting the argument \nthat a municipality was liable because it “ha[d] a ‘policy’ of \nallowing or instructing its police oﬃcers to enforce the chal‐\nlenged statutes”). \n As for the other bases for Monell liability, Spiegel wisely \ndeclines to argue that they exist. Two visits by oﬃcers do not \nconstitute a widespread policy or practice. And the complaint \nmakes no mention of any Wilmette oﬃcials who might have \npolicymaking authority. \n Spiegel also argues that Wilmette can be held liable be‐\ncause the Village “ratified” its oﬃcers’ actions. For a munici‐\npality to be liable on a ratification theory, the municipality \n“must approve both the employee’s conduct and the basis for \nthat conduct, i.e., the employee’s motivation.” Waters v. City of \nChicago, 580 F.3d 575, 584 (7th Cir. 2009). Spiegel relies upon \nbriefing in which Wilmette argued that the threats to arrest \nSpiegel did not violate the constitution. But contending that \n\fNo. 18‐1070 11 \n\nno constitutional violation occurred is far diﬀerent from as‐\nserting that the actions were appropriate even assuming the \noﬃcers intended to chill free speech. Spiegel did not state a \nMonell claim against Wilmette. \n 3. Spiegel Has Not Stated a Claim for Intrusion Upon Seclu‐\n sion \n Under Illinois law, a plaintiﬀ may sue for an intrusion \nupon seclusion. Lawlor v. N. Am. Corp. of Ill., 2012 IL 112530, ¶ \n34. The cause of actionʹs elements are: “(1) the defendant com‐\nmitted an unauthorized intrusion or prying into the plaintiﬀ’s \nseclusion; (2) the intrusion would be highly oﬀensive or ob‐\njectionable to a reasonable person; (3) the matter intruded on \nwas private; and (4) the intrusion caused the plaintiﬀ anguish \nand suﬀering.” Busse v. Motorola, Inc., 813 N.E.2d 1013, 1017 \n(Ill. App. Ct. 2004). The district court dismissed Spiegel’s \nclaim after finding that he did not allege damages from the \npurported intrusions. \n Spiegel argues, simply, that damages for intrusion upon \nseclusion are presumed. “Under Illinois law, a plaintiﬀ must \nprove actual injury in the form of, for example, medical care, \nan inability to sleep or work, or a loss of reputation and integ‐\nrity in the community in order to recover damages for torts \nsuch as intrusion upon seclusion. Injury is not presumed.” \nSchmidt v. Ameritech Ill., 768 N.E.2d 303, 316 (Ill. App. Ct. 2002) \n(citation omitted) (emphasis added); see also McGreal v. AT & \nT Corp., 892 F. Supp. 2d 996, 1015 (N.D. Ill. 2012) (collecting \ncases in which courts dismissed claims for intrusion upon se‐\nclusion for failure to allege damages specifically). Spiegel did \nnot allege facts to support a required element of his state law \nprivacy claim. \n\f12 No. 18‐1070 \n\n 4. Spiegel’s Remaining Motions \n Spiegel also appeals the district court’s denial of his mo‐\ntion for a preliminary injunction, motion to vacate the judg‐\nment, and motion for leave to file a third amended complaint. \nBecause the district court correctly found that Spiegel had not \nstated a claim against the defendants, the court properly de‐\nnied the motions for injunctive relief and to vacate the judg‐\nment. \n The proposed third amended complaint included claims \nagainst three oﬃcers. The district court denied the motion to \namend on futility grounds but did not address the addition of \nindividual oﬃcers as defendants. Despite that oversight, the \ncourt properly denied the motion to amend. “When there has \nbeen an entry of final judgment, a complaining party may \namend a complaint pursuant to Rule 15(a) only after that \nparty has successfully altered or amended the judgment pur‐\nsuant to Rule 59(e) or the judgment has been vacated pursu‐\nant to Rule 60(b).” Dubicz v. Commonwealth Edison Co., 377 F.3d \n787, 790 (7th Cir. 2004). Because the court entered final judg‐\nment and denied Spiegel’s motion to vacate the judgment, the \ncourt had no jurisdiction to consider the motion to amend. Id. \n III. CONCLUSION \n The district court correctly found that Spiegel did not state \nconstitutional or state law claims in his second amended com‐\nplaint. McClintic did not conspire with Wilmette, and Spiegel \nhas not identified an express policy by Wilmette that caused \na constitutional deprivation. As to his state law privacy claim, \nIllinois law requires that damages be specifically alleged. \n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368101/", "author_raw": "Michael Stephen Kanne"}]}	BAUER	KANNE	BRENNAN	1	{"BAUER": ", Circuit", "KANNE": ", Circuit", "BRENNAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590848/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,849		ARC Welding Supply, Co. Inc. v. American Welding & Gas, Inc.	2019-02-14	18-1546	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1546\nARC WELDING SUPPLY CO, INC., et al.,\n Plaintiffs-Appellants,\n v.\n\nAMERICAN WELDING & GAS, INC.,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Evansville Division.\n No. 3:16-cv-00173-RLY-MPB — Richard L. Young, Judge.\n ____________________\n\n ARGUED SEPTEMBER 26, 2018 — DECIDED FEBRUARY 14, 2019\n ____________________\n\n Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.\n ROVNER, Circuit Judge. This case arises from an Asset Pur-\nchase Agreement (the “Agreement”) entered into in October\n2014 between the plaintiffs, ARC Welding Supply Co. and its\nowner Charles McCormick (collectively “ARC”), and the de-\nfendant American Welding & Gas, Inc. (“American”). ARC\nwas a distributor of compressed gases and welding supplies\nin Vincennes, Indiana, and sold substantially all of its assets\nto American including its stock of asset cylinders. ARC filed\n\f2 No. 18-1546\n\na complaint alleging that American breached the terms of the\nAgreement for the purchase of the asset cylinders, and Amer-\nican filed a counterclaim for breach of contract. Following a\nbench trial, the district court entered judgment in favor of\nAmerican and awarded damages in the amount of $33,765.52\nplus interest, and ARC now appeals.\n We take the facts in this case directly from the finding of\nfacts set forth by the district court following the bench trial.\nAs part of the Agreement, American paid ARC $1,534,796.06\nfor ARC’s assets, of which the primary assets were its asset\ncylinders. Asset cylinders could vary in type and cost. For in-\nstance, some cylinders are designed to hold compressed gas,\nand others hold compressed liquids, and the cost can vary\nfrom as low as $30 per cylinder to as high as $1,200 per cylin-\nder. Businesses can profit from cylinders such as these by\nrenting them to businesses in need of compressed gas for use\nin their operations, including restaurants or convenience\nstores which rent carbon dioxide cylinders for soda fountains\nthat must then be refilled on a regular basis. As a result, a crit-\nical factor in determining the appropriate price for the sale of\nARC’s assets was the number of asset cylinders that could be\ntransferred. The sales price was based in part on McCormick’s\nrepresentation that there would be approximately 6,500 cyl-\ninders. The parties could not ascertain a precise count of the\ncylinders that would be transferred because many cylinders\nwere “out in the field” with customers, and therefore the\nAgreement provided that American would hold back\n$150,000—known as the Cylinder Deferred Payment—for 180\ndays to protect against a marginal shortage of up to 1,200 cyl-\ninders, at a valuation of $125 per cylinder. In American’s ex-\nperience, a 1,200-cylinder cushion was more than sufficient to\n\fNo. 18-1546 3\n\nprotect against any shortage that might occur, and ARC did\nnothing to dissuade American from that belief.\n The contract required American to engage in an audit to\ncount and verify the number of asset cylinders in the posses-\nsion of ARC and its customers that would be transferred un-\nder the contract. American conducted the audit between De-\ncember 2014 and May 22, 2015. The audit started with a per-\nsonal physical count of the “dock stock,” encompassing the\ncylinders on-site at the Vincennes facility, which yielded\n1,553. American then audited the cylinders in the field with\nthe 1,233 customers whose accounts were transferred from\nARC to American. To audit those remote accounts, American\nfirst reviewed each customer’s payment history, and if the\nrecords revealed that the customer consistently paid rent on a\ncertain number of cylinders and did not include a large num-\nber of exchanges, then American provided full credit for that\nnumber of cylinders and would generally not visit that cus-\ntomer to confirm the count. Where the records indicated a\nlarge number of cylinder exchanges or abnormalities in the\nrecords provided by ARC, American would perform a physi-\ncal audit where an American representative would visit the\ncustomer’s location, meet with the customer, locate the cylin-\nders, record the number on cylinder reconciliation forms, and\nobtain the customer’s signature confirming that information.\n The audit also included cylinders that were in the field\npursuant to 99-year leases with customers. For those ac-\ncounts, American would send a letter to customers seeking\nverification of the count listed in the records, and if the cus-\ntomer verified that count, then American provided full credit\nto ARC. If there was a discrepancy in the count, or if the cus-\ntomer failed to respond, American would follow up and often\n\f4 No. 18-1546\n\nconduct an in-person audit. One further adjustment to the cyl-\ninder amount was required. Following its acquisition of the\nasset cylinders, American began sending monthly cylinder\nrent bills to the customers it acquired from ARC. It subse-\nquently learned that a significant percentage of ARC’s cus-\ntomers were no-rent customers, who paid only to have cylin-\nders refilled but did not pay rent to ARC on the ARC-owned\ncylinders they were using. Such no-rent cylinders were not\nconsidered asset cylinders under the Agreement unless re-\ntrieved.\n According to the Agreement, settlement of the Cylinder\nDeferred Payment was to occur on or before April 15, 2015.\nRon Adkins, American’s President and Chief Executive Of-\nficer, informed McCormick that the audit was taking longer\nthan anticipated, that the count was coming up shorter than\nanticipated, and that it wanted to continue counting in order\nto find every available cylinder. The continuation of the audit\nwas mutually beneficial, in that the more cylinders included\nin the final count, the more American could earn and the\nsmaller ARC’s shortfall would be. The district court found\nthat McCormick extended the deadline and therefore that\nAmerican, in finishing the audit on May 22, 2015, did not miss\nthe contractual deadline for completing the audit and propos-\ning a “settlement” of the Cylinder Deferred Payment. The re-\nsults of the audit revealed that ARC owned and transferred\n4,663 asset cylinders to American, 1,837 cylinders short of the\n6,500 promised in the Agreement. Following that audit, ARC\nclaimed that 16 uncounted cylinders were discovered at\nLandree Mine, and American stipulated to provide a 16-cyl-\ninder credit to ARC. Beyond that number, ARC has provided\nno affirmative proof that the cylinder count as to any of the\ncustomers was flawed.\n\fNo. 18-1546 5\n\n ARC argued to the district court that American breached\nthe contract because it did not complete the audit within the\n180-day period, and that American as a result owed the\n$150,000 amount allocated as a holdback for the Cylinder De-\nferred Payment. The district court rejected that argument on\ntwo independent grounds. First, the court held that American\ndid not miss the deadline for proposing a settlement, because\nMcCormick extended that deadline through at least May 28,\n2015, at which point American had completed its audit and\nproposed the settlement of the Cylinder Deferred Payment.\nSecond, the court held that the deadline ensured that, if ARC\ndelivered enough cylinders to warrant recovery of some or all\nof the Cylinder Deferred Payment, ARC would receive pay-\nment by that deadline. The court held that if less than 5,300\ncylinders were delivered, they would not be entitled to any of\nthe $150,000 payment. Because only 4,663 cylinders were de-\nlivered, the court held that regardless of the deadline, the fail-\nure to deliver more than 5,300 cylinders meant that they were\nnever entitled to receive any portion of the $150,000 Cylinder\nDeferred Payment. The court therefore rejected ARC’s claim\nfor damages for breach of contract.\n Based on that same reasoning, the court granted Ameri-\ncan’s counterclaim for breach of contract. Because the audit\nreflected that ARC owned only 4,663 cylinders, and because\nAmerican stipulated to count the cylinders at Landree Mine,\nthe court held that American was entitled to retain the entire\n$150,000 Cylinder Deferred Payment and to recover $125 for\neach cylinder it failed to receive under the threshold of 5,300\ncovered by that Cylinder Deferred Payment contingency for\na total of $77,625. From that amount, the district court sub-\ntracted the $43,859.48 that American admitted it owed in con-\n\f6 No. 18-1546\n\nnection with the settlement of the accounts receivable and en-\ntered judgment in favor of American in the amount of\n$33,765.52 plus interest.\n ARC now appeals the court’s decision. In an appeal from\na bench trial, we review the district court’s findings of fact for\nclear error, and its conclusions of law de novo. Rain v. Rolls-\nRoyce Corp., 626 F.3d 372, 379 (7th Cir. 2010). “Under Indiana\nstate law, the court’s goal in interpreting a contract is to ‘give\neffect to the parties’ intent as reasonably manifested by the\nlanguage of the agreement.’” Id., quoting Reuille v. E.E. Bran-\ndenberger Constr., Inc., 888 N.E.2d 770, 771 (Ind. 2008). Unless\nterms of a contract are ambiguous, the court will give the\nterms their ordinary and plain meaning. Id. The district court\nmet that standard in this case, interpreting the contract con-\nsistent with the plain and ordinary meaning of the words.\n ARC argues that the district court erred in determining\nthat McCormick extended the deadline for the completion of\nthe audit. According to ARC, the Agreement could not be ex-\ntended by McCormick because it was fundamentally a con-\ntract for the sale of goods and the Uniform Commercial Code\n(UCC) prohibits the oral modification of such contracts, and\nbecause the parol evidence rule forbids oral modification of\ncontracts such as the Agreement that are totally integrated\nand expressly prohibit oral modifications. It further argues\nthat American breached the contract by failing to tender a ver-\nified count within the required time period.\n American contests both the applicability of the UCC to the\nAgreement, and the argument that an oral modification was\nprohibited. But we need not address those issues at all. The\ndistrict court based its judgment on two separate grounds.\n\fNo. 18-1546 7\n\nThe first related to whether the deadline for the audit was ex-\ntended by McCormick on behalf of ARC. The second basis,\nhowever, was independent of whether the deadline was ex-\ntended. Recognizing the structure of the contract, the court\nheld that the purpose of the deadline was to ensure timely\npayment to ARC if more than 5,300 cylinders were delivered,\nbut because the audit at no time revealed more than 5,300 cyl-\ninders, the court held that ARC was entitled to no recovery\nand the Cylinder Deferred Payment provisions were not\nowed.\n ARC does little to contest the latter basis for the district\ncourt’s judgment, and it is controlling here. The contract pro-\nvisions at issue, Article 2, § 2.1(f) of the Agreement, provides\nin relevant part:\n Asset Cylinders. The Asset Cylinders in the pos-\n session of Seller and in possession of customers\n shall be counted and verified as part of the in-\n ventory under Section 2.1(e) above. The base\n number of Asset Cylinders is 6,500 units. The\n parties agree that the Asset Cylinders will not\n be verified to the satisfaction of the Purchaser\n prior to Closing, therefore, $150,000.00 of the\n Purchase Price shall be deferred for 180 days\n (the “Cylinder Deferred Payment”). After the\n 180 [-day] cylinder reconciliation period, any\n shortage of Asset Cylinders shall be charged at\n the rate of $125.00 per unit against the Cylinder\n Deferred Payment, and any excess of Asset Cyl-\n inders will be added at the rate of $125.00 per\n unit to the Cylinder Deferred Payment. The bal-\n ance of the Cylinder Deferred Payment, if any,\n\f8 No. 18-1546\n\n shall be paid to the Seller plus interest at 4% per\n annum from the Effective Date to date of settle-\n ment. Settlement of the Cylinder Deferred Pay-\n ment shall take place not more than fifteen (15)\n days following the end of the cylinder reconcil-\n iation period. …\n First, ARC asserts that the language of that provision re-\nquires the audit to be completed within 180 days, and that the\nentire $150,000 Cylinder Deferred Payment is owed to it if\nAmerican fails to complete the audit by that deadline. That\nreads language into the provision that is not there. The provi-\nsion sets forth the 180-day period for the audit, but it never\ncontemplates as a consequence for exceeding that time pe-\nriod, forfeiture of the entire $150,000 Cylinder Deferred Pay-\nment. The damage to ARC for the failure to complete the au-\ndit in the 180 days is the delay in its receipt of any funds owed\nto it of that $150,000 Cylinder Deferred Payment. Therefore,\nif the ultimate audit had yielded an asset cylinder count that\nexceeded 5,300, then ARC could claim that American owed it\ndamages for the delay beyond that 180 days in paying it the\namount owed, likely in the form of interest. See Checkers Eight\nLtd. P'ship v. Hawkins, 241 F.3d 558, 562 (7th Cir. 2001)\n(“[a]bsent exceptional circumstances, actual damages caused\nby monetary payments being late are not difficult to measure\nbecause interest rates can be used to estimate the time value\nof money.”); Farah, LLC v. Architura, Corp., 952 N.E. 2d 328,\n337 (Ind. Ct. App. 2011) (“A party’s recovery for breach of\ncontract is limited to the loss actually suffered, and the party\nmay not be placed in a better position than he or she would\nhave enjoyed if the breach had not occurred.”). Nothing in\nthat provision, however, indicates that the failure to comply\nwill result in a forfeiture of the entire $150,000 amount.\n\fNo. 18-1546 9\n\n Throughout the provision, the $150,000 amount is charac-\nterized as a deferred payment for the total number of cylin-\nders produced. It does not purport to be a liquidated damages\nprovision for failure to comply with the timeliness require-\nment of the audit, although ARC would have the court treat\nit as such. “Liquidated damages refers to ’a specific sum of\nmoney that has been expressly stipulated by the parties to a\ncontract as the amount of damages to be recovered by one\nparty for a breach of the agreement by the other, whether it\nexceeds or falls short of actual damages.” Officer v. Chase Ins.\nLife & Annuity Co., 541 F.3d 713, 716 (7th Cir. 2008), quoting\nTime Warner Entm’t Co. v. Whiteman, 802 N.E.2d 886, 893 (Ind.\n2004). Typically, a liquidated damages clause provides for the\nforfeiture of a specified sum of money upon breach without\nproof of damages. Time Warner, 802 N.E.2d at 893. The lan-\nguage in the contract in this case does not allocate any amount\nto be forfeited for the failure to complete the audit in the spec-\nified time. ARC has pointed to no evidence to call into ques-\ntion the court’s conclusion that “the purpose of the deadline\nwas to ensure that if Plaintiffs delivered enough cylinders to\nwarrant recovery of some or all of the Cylinder Deferred Pay-\nment, they would receive payment by that deadline,” and that\nif they produced fewer than 5,300 cylinders, they would not\nbe entitled to any of the $150,000 deferred payment. The audit\nreflected a significant shortfall in the 6,500-cylinder amount\nenvisioned in the Agreement, and the 4,663 cylinders ac-\ncounted for was far below the 5,300 threshold that would trig-\nger the Cylinder Deferred Payment. Because ARC was not en-\ntitled to any of the Cylinder Deferred Payment in that it pro-\nvided less than the 5,300 cylinders, it could not have been\ndamaged by the delay in completing the audit. When zero\n\f10 No. 18-1546\n\ndollars are owed, the failure to pay it earlier is without conse-\nquence.\n ARC asserts that reading the provision as entitling it only\nto damages related to the delay would allow American to\nreap a windfall, because it could choose to never complete the\naudit and would not have to pay the $150,000 Cylinder De-\nferred Payment. That argument is meritless. The issue as to\nthe appropriate damages if American entirely failed to con-\nduct the audit at all is distinct from the issue of the damages\nthat would be appropriate if there was merely a delay in com-\npleting the audit, and nothing in the contract remotely sug-\ngests that American could choose to forego the audit entirely\nand retain the $150,000 amount. There is no argument here\nthat American did not act in good faith in its adherence to the\naudit requirement of the contract.\n ARC maintains, however, that the audit requirement of\nthe contract was not met because American never physically\ninspected and counted each asset cylinder. ARC insists that\nabsent such physical inspection of each of the approximately\n6,500 alleged asset cylinders, American failed to complete the\naudit mandated by the contract. But nothing in the contract\npurports to limit the audit to physical inspections. The con-\ntract requires only that the “[t]he Asset Cylinders in the pos-\nsession of Seller and in possession of customers shall be\ncounted and verified as part of the inventory under Section\n2.1(e).” The manner in which those asset cylinders shall be\ncounted and verified is not specified, and no requirement of\nphysical verification is included. The means of counting the\nasset cylinders set forth by the district court reflected a rea-\nsonable means of ascertaining a trustworthy count entirely\n\fNo. 18-1546 11\n\nconsistent with the “count and verify” requirement. For in-\nstance, American physically counted the asset cylinders at the\nVincennes site, and credited ARC with the full amount of as-\nset cylinders it claimed for each customer in the field where\nthe pattern of payments and exchanges corroborated those\nnumbers. Where a large number of exchanges or record ab-\nnormalities raised questions as to the proper count, physical\nverification of the asset cylinders was conducted. American,\nthen, credited the records provided by ARC, and confirmed\nthe numbers where the validity of those records was ques-\ntionable. Nothing in the contract precludes that approach as a\nmeans of counting and verifying the asset cylinders in the\npossession of the Seller and the customers, and in fact, the re-\nliance on and acceptance of ARC’s records would presumably\nbenefit ARC. Other than the 16 cylinders in the mine, which\nAmerican credited, ARC has identified no instance in which\nthe numbers reached were inaccurate. The court’s finding that\nthe audit was completed on May 22, 2015, was consistent with\nthe record and certainly was not clearly erroneous.\n Even given the court’s determination that the audit was\nvalid, ARC argues that the court erred in awarding damages\nto American. First, ARC asserts that the damage award is im-\nproper because ARC never promised to deliver a certain num-\nber of cylinders but rather pledged only to transfer all of the\ncylinders in its possession which was expected to total ap-\nproximately 6,500. Under this reasoning, a shortfall, no matter\nhow substantial between that 6,500 number and the actual\nnumber transferred, would not entitle American to any com-\npensation. The language of the contract, however, supports\nthe district court’s contrary interpretation. The contract pro-\nvides for payments to be made based on the degree to which\nthe asset cylinder count deviated from 6,500 providing that\n\f12 No. 18-1546\n\n“any shortage of Asset Cylinders shall be charged at the rate\nof $125.00 per unit against the Cylinder Deferred Payment,\nand any excess of Asset Cylinders will be added at the rate of\n$125.00 per unit to the Cylinder Deferred Payment.” The\nshortfall in this case was so substantial that it exceeded the\n$150,000 held in reserve as a Cylinder Deferred Payment. The\ndistrict court did not err in holding that the contract contem-\nplated the payment of $125 to American for each asset cylin-\nder below that 6,500 number, first in the form of a credit to the\nCylinder Deferred Payment and then, when that source was\ndepleted, in the form of damages payable from ARC to Amer-\nican. Nor is there any support for ARC’s bald contention that\nthe $150,000 Cylinder Deferred Payment was a liquidated\ndamages provision which limited American’s recovery to re-\ntention of that $150,000 amount. Nothing in the contractual\nlanguage supports that argument. See Officer, 541 F.3d at 716.\n Finally, ARC claims that the district court erred in basing\nits damage award on a $125 valuation for the cylinders. ARC\nasserts that the valuation cannot be proper because if all 6,500\nasset cylinders were valued at $125, the total of $812,500\nwould greatly exceed the contract price for all of ARC’s fixed\nassets and asset cylinders of $603,905. As ARC recognizes,\nhowever, asset cylinders can vary in value from $30 to $1,200\neach, and therefore the value of the asset cylinders which\nARC failed to provide would depend on the cylinder type.\nThe parties to the contract determined that the cylinders\nshould be valued at $125, with that amount deducted from\nthe Cylinder Deferred Payment for a shortfall or added to the\nCylinder Deferred Payment if the asset cylinder number ex-\nceeded 6,500. The court did not err in using the valuation for\nthe cylinders that the parties themselves deemed the proper\nnumber.\n\fNo. 18-1546 13\n\n The decision of the district court is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368102/", "author_raw": "Ilana Kara Diamond Rovner"}]}	EASTERBROOK	ROVNER	ST EVE	1	{"EASTERBROOK": ", Circuit", "ROVNER": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590849/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,854	UNITED STATES of America, Plaintiff-Appellee, v. Raymond L. HENDERSON, Defendant-Appellant.	United States v. Raymond Henderson	2019-02-14	17-3549	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Manion, Sykes, Hamilton", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888000/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888001/", "author_raw": ""}, {"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3549\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nRAYMOND L. HENDERSON,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court\n for the Central District of Illinois.\n No. 17-CR-30072 — Sue E. Myerscough, Judge.\n ____________________\n\n ARGUED FEBRUARY 28, 2018 — DECIDED FEBRUARY 14, 2019\n ____________________\n\n Before MANION, SYKES, and HAMILTON, Circuit Judges.\n SYKES, Circuit Judge. Raymond Henderson was arraigned\non drug and firearm charges while shackled with leg irons\nand handcuffs connected to a waist chain. His attorney\nasked the district judge to have the shackles removed. The\njudge denied the request, deferring to the United States\nMarshals Service’s policy of using full restraints on prisoners\nat every nonjury court appearance. Henderson appealed the\nruling, relying on the collateral-order doctrine to support\n\n2 No. 17-3549\n\ninterlocutory review. After oral argument we ordered sup-\nplemental briefing on the possibility of mandamus as an\nalternative means of review if Henderson’s argument about\nthe collateral-order doctrine failed. We also gave the judge\nan opportunity to respond as provided in Rule 21 of the\nFederal Rules of Appellate Procedure, which governs man-\ndamus procedure. She has done so. We now hold that the\ncollateral-order doctrine does not apply and decline to\nreframe the appeal as a petition for a writ of mandamus. We\ntherefore dismiss the appeal for lack of jurisdiction.\n I. Background\n A grand jury in the Central District of Illinois indicted\nHenderson for possession of crack cocaine with intent to\ndistribute and two related firearms offenses. In accordance\nwith the Marshals Service’s policy in the Springfield\nDivision, Henderson appeared in court for arraignment\nencircled by four security officers and shackled with leg\nirons and handcuffs connected to a waist chain. His attorney\nmoved to have him unshackled except for the leg irons for\nthe remainder of the arraignment and at all future pretrial\nhearings. Counsel argued that routine shackling in court\nviolates the accused’s right to due process and asked the\njudge to hold a hearing to determine whether Henderson\nposed an individualized risk to justify the use of full re-\nstraints.\n More specifically, counsel argued that a criminal accused\nhas a deeply rooted fundamental right not to be shackled in\ncourt proceedings absent an individualized showing of risk\nof flight or violence. The Supreme Court has held that the\nDue Process Clause forbids the routine use of shackles\nbefore the jury. Deck v. Missouri, 544 U.S. 622, 629 (2005).\n\nNo. 17-3549 3\n\nCounsel urged the judge to apply the same rule to pretrial\nproceedings and conduct an individualized risk assessment\nas Deck requires. Finally, counsel argued that the judge, not\nthe Marshals Service, is ultimately responsible for the deci-\nsion to use restraints in court, and a default position of\ndeference to security officials abdicates that judicial respon-\nsibility.\n The government responded with three points. First,\nDeck’s rule against restraints in court is expressly limited to\nthe use of shackles in the presence of a jury. Id. Second, the\nreasons underlying the Deck rule have little, if any, applica-\nbility to nonjury proceedings like an arraignment and other\npretrial hearings. Third, Deck relied in large part on the\ncommon-law rule against shackles, which is limited to jury\ntrials and does not extend to arraignment or “like proceed-\nings before the judge.” Id. at 626. The government urged the\ncourt to apply the standard in Bell v. Wolfish, 441 U.S. 520\n(1979), which governs conditions of confinement for pretrial\ndetainees. Under that standard, the government argued, the\nuse of shackles in pretrial proceedings is not a form of\npunishment and thus is constitutionally permissible.\n In an oral ruling, the judge denied Henderson’s motion,\ndeclaring that “court security is up to our Court Security and\nMarshals” and later saying that she was “concerned that\n[Henderson] might take off.” The judge issued a follow-up\nwritten order that same day, noting that because of “the\nreasons stated in the [g]overnment’s response,” she would\n“continue to defer to the expertise of the United States\nMarshals Service” without making “an individualized\ndetermination that shackling is necessary.”\n\n4 No. 17-3549\n\n Henderson appealed the judge’s order, invoking the\ncollateral-order doctrine and arguing that he has a due-\nprocess right to appear before the court unshackled and that\nthis right applies in nonjury proceedings. At oral argument\nwe asked whether mandamus is available as an alternative\nbasis for interlocutory review should Henderson’s invoca-\ntion of the collateral-order doctrine fail. Because the parties\nhad not formally addressed that question, we ordered\nsupplemental briefing on the availability of supervisory or\nadvisory mandamus and gave the district judge an oppor-\ntunity to respond as if Henderson’s appeal were construed\nas a petition for a writ of mandamus. See FED. R. APP.\nP. 21(b)(4) (describing mandamus procedure and stating that\n“[t]he court of appeals may invite or order the trial-court\njudge to address the petition or may invite an amicus curiae\nto do so”).\n The judge accepted our invitation. She explained that\nmandamus is inappropriate because Deck’s requirement of\nan individualized risk assessment applies only when shack-\nles are used at a jury trial and thus Henderson had not\nshown that he has a “clear and indisputable” right to the\nwrit. J.H. Cohn & Co. v. Am. Appraisal Assocs., Inc., 628 F.2d\n994, 997 (7th Cir. 1980). The government agreed with the\njudge and added that mandamus is not warranted because\nHenderson has other adequate means to pursue his due-\nprocess claim and because this is not an “exceptional”\ncircumstance that would justify issuance of the writ.\n Henderson argued that either supervisory or advisory\nmandamus is appropriate because the issue presented is\nimportant, novel, recurring, and would otherwise evade\neffective appellate review. See id.; United States v. Green,\n\nNo. 17-3549 5\n\n407 F.3d 434, 439 (1st Cir. 2005) (explaining advisory and\nsupervisory mandamus). He also reiterated his position that\nthe shackling order is immediately reviewable under the\ncollateral-order doctrine.\n II. Discussion\n We begin (and also end) with the question of appellate\njurisdiction. Our jurisdiction is limited to appeals from a\nfinal order of the district court. See 28 U.S.C. § 1291. The\njudge’s shackling ruling obviously is not a final order; the\ncase remains pending in the district court. Henderson argues\nthat the collateral-order doctrine supports interlocutory\nreview. That doctrine allows immediate appeal of interlocu-\ntory orders that “finally determine claims of right separable\nfrom, and collateral to, rights asserted in the action, too\nimportant to be denied review and too independent of the\ncause itself to require that appellate jurisdiction be deferred\nuntil the whole case is adjudicated.” Cohen v. Beneficial Indus.\nLoan Corp., 337 U.S. 541, 546 (1949).\n To qualify for immediate review under this exception, an\norder “must conclusively determine the disputed question,\nresolve an important issue completely separate from the\nmerits of the action, and be effectively unreviewable on\nappeal from a final judgment.” Coopers & Lybrand v. Livesay,\n437 U.S. 463, 468 (1978). The Supreme Court has emphasized\nthat the collateral-order doctrine is “a narrow exception to\nthe normal application of the final judgment rule,” and in\ncriminal cases its requirements are applied “with the utmost\nstrictness.” Midland Asphalt Corp. v. United States, 489 U.S.\n794, 798–99 (1989) (quoting Flanagan v. United States, 465 U.S.\n259, 265 (1984)).\n\n6 No. 17-3549\n\n This case turns on the third step of the Coopers & Lybrand\ntest, which asks whether the order in question is effectively\nunreviewable on appeal from a final judgment. The Supreme\nCourt’s seminal shackling case demonstrates that this re-\nquirement is not met here. In Deck the defendant objected to\nappearing before the jury in shackles during the penalty\nphase of his capital murder trial. 544 U.S. at 624–25. The\nSupreme Court reversed the defendant’s death sentence,\nholding that shackling him in front of the jury violated his\nright to due process. Id. at 635. Deck establishes that due-\nprocess shackling claims may be effectively reviewed on\nappeal from a final judgment. That alone forecloses interloc-\nutory review.\n On a broader level, in criminal cases the Court has identi-\nfied only four pretrial orders that qualify for immediate\nreview under the collateral-order doctrine: (1) an order\ndenying bail, Stack v. Boyle, 342 U.S. 1 (1951); (2) an order\ndenying dismissal based on double jeopardy, Abney v. United\nStates, 431 U.S. 651 (1977); (3) an order denying dismissal\nunder the Speech or Debate Clause, Helstoski v. Meanor,\n442 U.S. 500 (1979); and (4) an order for the administration of\npsychotropic medication to render a defendant competent\nfor trial, Sell v. United States, 539 U.S. 166 (2003). We recently\nnoted the distinguishing characteristics of orders of this\ntype: “Bail and involuntary medication are independent of\nthe merits and unreviewable on appeal from a conviction,\nwhile the other two situations exemplify rights not to be\ntried.” United States v. Schock, 891 F.3d 334, 339 (7th Cir.\n2018).\n On the other hand, the Court has held that a constitu-\ntional objection to an attorney-disqualification order is\n\nNo. 17-3549 7\n\neffectively reviewable on appeal from a final judgment.\nFlanagan, 465 U.S. at 269–70. The Court also has refused to\nextend the collateral-order doctrine to pretrial orders deny-\ning dismissal under the Speedy Trial Clause. United States v.\nMacDonald, 435 U.S. 850, 861–63 (1978). These cases present-\ned ordinary claims of constitutional procedural error for\nwhich appeal from a final judgment provides effective\nreview. Henderson’s shackling claim is in the same category.\n Schock is our most recent exploration of the collateral-\norder doctrine in a criminal case. A former congressman\nappealed an order denying his motion to dismiss an indict-\nment charging him with fraud and making false statements.\n891 F.3d at 336. He moved to dismiss based on the Speech or\nDebate Clause, U.S. CONST. art. 1, § 6, cl. 1 (immunizing\nmembers of Congress from liability for their speeches,\ndebates, and other parts of the legislative process), and the\nRulemaking Clause, id. art. I, § 5, cl. 2 (stating that each\nHouse of Congress may determine its own rules and punish\nits members). The district court denied the motion, and the\ndefendant immediately appealed; we affirmed in part and\ndismissed in part. The Speech or Debate Clause, we ex-\nplained, confers an immunity from litigation, so we ad-\ndressed the merits and affirmed the denial of the dismissal\nmotion on this ground. Schock, 891 F.3d at 336. We dismissed\nthe rest of the appeal for lack of jurisdiction, holding that an\norder refusing to dismiss an indictment under the Rulemak-\ning Clause does not qualify for immediate review under the\ncollateral-order doctrine. Id. at 338–39. The defendant’s\nclaim—a kind of separation-of-powers defense—could be\neffectively reviewed on appeal from a final judgment. Id.\n\n8 No. 17-3549\n\n The same is true here. As Deck shows, a due-process chal-\nlenge to a shackling order can be vindicated on appeal from\na final judgment. Henderson argues that the possibility of\nacquittal, from which he cannot appeal, entitles him to\nreview now. But acquittal is possible in every criminal case\nand so cannot justify application of the collateral-order\nexception.\n Turning now to the issue of mandamus, we begin by re-\niterating that Henderson did not petition for the writ. Ordi-\nnarily we will not construe an appeal as a petition for\nmandamus if the appellant “failed to apply for [the] writ in\naccordance with the requirements of Federal Rule of Appel-\nlate Procedure 21(a).” Geaney v. Carlson, 776 F.2d 140, 142\n(7th Cir. 1985).\n However, in a case involving a similar interlocutory ap-\npeal of a pretrial shackling order, the Ninth Circuit, sitting\nen banc, recast the notice of appeal as a petition for manda-\nmus and reached the merits of the defendants’ due-process\nclaim. United States v. Sanchez-Gomez, 859 F.3d 649, 657 (9th\nCir. 2017) (en banc). Although the underlying criminal\nproceedings were long since over, the en banc court declined\nto dismiss the case as moot. Id. at 657–59. Rather, after\nreframing the appeal as a mandamus petition, the court\nconstrued the defendants’ claim as a “functional class ac-\ntion,” id. at 658, and found a constitutional violation, id. at\n666.\n As we’ve explained, in light of Sanchez-Gomez, we issued\nan order for supplemental briefing asking the parties to\naddress the propriety of construing this appeal as a petition\nfor mandamus. They complied. We also invited the district\njudge to respond as provided in Rule 21(b)(4), and she took\n\nNo. 17-3549 9\n\nthe opportunity to do so. While we’ve had this case under\nadvisement, however, the Supreme Court vacated the Ninth\nCircuit’s judgment and remanded with instructions to\ndismiss the case as moot. United States v. Sanchez-Gomez,\n138 S. Ct. 1532, 1542 (2018).\n We do not have a mootness problem here; the underlying\ncriminal case remains pending. Still, we will not follow the\nNinth Circuit’s lead. The All Writs Act codifies the common-\nlaw writ of mandamus: “The Supreme Court and all courts\nestablished by Act of Congress may issue all writs necessary\nor appropriate in aid of their respective jurisdictions and\nagreeable to the usages and principles of law.” 28 U.S.C.\n§ 1651(a). Mandamus “is a drastic and extraordinary remedy\nreserved for really extraordinary causes.” Cheney v. U.S. Dist.\nCt. for D.C., 542 U.S. 367, 380 (2004) (internal quotation\nmarks omitted). “[O]nly exceptional circumstances amount-\ning to a judicial usurpation of power … or a clear abuse of\ndiscretion … will justify the invocation of this extraordinary\nremedy.” Id. (quotation marks and citations omitted).\n The mandamus writ “is one of the most potent weapons\nin the judicial arsenal” and may issue only if three condi-\ntions are satisfied. Id. (internal quotation marks omitted).\nFirst, the petitioner must establish that he has no other\nadequate remedy—“a condition designed to ensure that the\nwrit will not be used as a substitute for the regular appeals\nprocess.” Id. at 380–81. Second, the petitioner must show that\nhis right to the issuance of the writ “is clear and indisputa-\nble.” Id. at 381 (internal quotation marks omitted); see also\nJ.H. Cohn & Co., 628 F.2d at 997. Third, “the issuing court, in\nthe exercise of its discretion, must be satisfied that the writ is\n\n10 No. 17-3549\n\nappropriate under the circumstances.” Cheney, 542 U.S. at\n381.\n Henderson’s argument for reframing the appeal as a peti-\ntion for mandamus falters at the first step. As we’ve already\nexplained, a due-process challenge to the judge’s shackling\norder can be effectively reviewed as part of the “regular\nappeals process,” so Henderson does not lack an adequate\nremedy. Accordingly, we decline to construe the notice of\nappeal as a petition for mandamus.\n We’re left with an interlocutory appeal that does not fall\nwithin the collateral-order doctrine. We therefore DISMISS the\nappeal for lack of jurisdiction.\n\nNo. 17-3549 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368107/", "author_raw": "Diane S. Sykes"}, {"author": "HAMILTON, Circuit Judge, dissenting", "type": "dissent", "text": "HAMILTON, Circuit Judge, dissenting. The law governing\nthe use of physical restraints on the accused in the courtroom\ncan sometimes produce an uneasy compromise, between\nsafety on one hand and fairness, dignity, and decorum on the\nother. In this appeal, the district court has failed to comply\nwith two principles that shape that body of law. First, the\ncourt defers courtroom security issues to the United States\nMarshals Service and its preferred policy: for all detained de-\nfendants, wrists, ankles, and waists are chained together rou-\ntinely, for all in-court proceedings without a jury. Deferring\nthe decision to the Marshals Service is not consistent with the\nrole of the judge. Second, absent special risks, the use of full\nrestraints on a presumptively innocent defendant in the court-\nroom simply is not consistent with basic fairness, dignity, and\ndecorum in the courts of the United States.\n I therefore respectfully dissent from dismissal of this ap-\npeal. We should use our power to issue a supervisory writ of\nmandamus to require the district court to stop the routine use\nof such full restraints in pretrial hearings. On the merits of this\nappeal, I agree in essence with the Ninth Circuit’s en banc\nopinion in United States v. Sanchez-Gomez, 859 F.3d 649 (9th\nCir. 2017) (en banc), vacated as moot, 138 S. Ct. 1532 (2018),\nthough I would base a decision here on our supervisory\npower rather than decide whether the Constitution itself re-\nquires the relief.\n Before going further, I must make two points based on\nmore than twenty years as a federal judge, most in a district\ncourt with a full criminal docket. First, I have depended on\nthe courage, discipline, professionalism, and diplomacy of the\nmen and women of the United States Marshals Service. Like\nso many other judges, I have depended on marshals both to\n\n12 No. 17-3549\n\nmaintain safety in the courthouse and the courtroom and to\nmaintain the dignity, decorum, and respect for all that are es-\nsential to the rule of law.\n Second, in some exceptional cases, defendants and their\nassociates pose extraordinary risks that justify measures such\nas the full restraints, even in the courtroom. The courts of the\nUnited States of America take pride in trying fairly some of\nthe most dangerous people in the world, including terrorists,\nserial killers, organized crime leaders, and drug kingpins and\ntheir henchmen. When criminal associates can learn in ad-\nvance exactly when the defendant will be present outside a\njail or prison, in a federal courtroom, that can raise the risk of\na rare attempt at escape. As a district judge, I often benefited\nfrom the advice of the Marshals Service on appropriate secu-\nrity measures to deal with unusual risks. Yet in all but the rar-\nest cases, the marshals and I were satisfied with at most ankle\nrestraints that were kept out of sight.\n This appeal, however, is not about exceptional measures\nto deal with exceptional risks. It is about routine practices.\nPart I explains below the challenged practice. Part II lays out\nwhat might be called the law of courtroom restraints, empha-\nsizing two points. First, a trial judge may not delegate to oth-\ners, including the Marshals Service, the decision about re-\nstraints in the courtroom. Second, excessive restraints in the\ncourtroom matter even when no jury is present. The practice\nin this district court runs contrary to both of those principles.\nPart III explains why a supervisory writ of mandamus is the\nappropriate procedure to address the court’s practice.\n\nNo. 17-3549 13\n\nI. The Challenged Practice\n The practice in this district court in criminal cases is to\nkeep all detained defendants in “full” restraints in all pretrial\nproceedings. Full restraints link the defendant’s wrists and\nankles to a chain at his waist. A Marshals Service photograph\nof prisoners in such restraints is in the Appendix at A26. Steel\nhandcuffs are linked by a short chain to each other and linked\nby another short chain to yet another chain at the prisoner’s\nwaist. Steel ankle restraints are linked by a short steel chain to\neach other and by another short chain to the chain around the\nprisoner’s waist. The prisoner can barely move, of course.\nThat’s the idea. He cannot walk but can only shuffle slowly.\nWhile standing, he cannot lift his hands to his chin, nor can\nhe move his hands more than a few inches apart. Lawyers and\njudges who take for granted their ability to take notes during\ncourt proceedings should try to imagine how difficult it is for\nsuch a restrained defendant merely to take notes about points\nto discuss with his lawyer at the next recess.\n Consider how this practice works in a contested hearing,\nwhere the judge must evaluate credibility. In opposing a mo-\ntion to suppress, for example, the government witnesses ap-\npear in crisp police uniforms as the protectors of society. They\nexplain why the stop or search was justified. The defendant\nmust shuffle slowly to the witness stand, chained like a wild\nbeast, unable to gesture or even to scratch his head. He testi-\nfies to a very different version of the stop or search, one that\nwould render it unconstitutional. In deciding a close case of\ncredibility, how often will a judge be able to overcome the\nsubconscious effects of the witnesses’ appearances?\n\n14 No. 17-3549\n\n To be clear, defendant Henderson has no objection to the\nuse of only leg irons in the courtroom. He also does not chal-\nlenge any aspect of the Marshals Service management of pris-\noners outside the courtroom itself. Movements of prisoners\noutside the secure environments of jail or prison pose height-\nened risks, and they rarely implicate the considerations of\ndignity and fairness that are so important in the courtroom\nitself. The focus here is only on full restraints in the court-\nroom.\nII. The Law of Courtroom Restraints\n The presumption of innocence lies at the heart of our sys-\ntem of criminal justice. In a series of cases, the Supreme Court\nhas held that both constitutional principles of due process and\nnon-constitutional principles of fair administration of justice\nrequire courts not to impose excessive physical restraints on\nthe accused, who is still presumed innocent.\n In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Supreme\nCourt wrote that an accused could be tried while shackled\nand gagged, or even removed from the courtroom altogether,\nbut only as last resorts based on the accused’s repeated and\naggravated refusals to behave in court. Defendant Allen had\nearned such rare treatment in his jury trial by repeatedly dis-\nrupting the proceedings to the extent that an orderly trial was\nimpossible if he was present and able to speak and interrupt.\nIn Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986), the Court\nfound acceptable the presence of uniformed police in the front\nrow of the courtroom, finding that security measure was not\nan “inherently prejudicial” practice, like shackling, that\n“should be permitted only where justified by an essential\nstate interest specific to each trial.”\n\nNo. 17-3549 15\n\n In Deck v. Missouri, 544 U.S. 622, 626–29 (2005), the Su-\npreme Court made clear that during the guilt phase of a crim-\ninal trial, the due process clauses of the Fifth and Fourteenth\nAmendments forbid routine use of visible shackles. Drawing\non English sources older than the United States, Deck identi-\nfied the traditional common law rule that defendants “must\nbe brought to the bar without irons, or any manner of shackles\nor bonds; unless there be evident danger of an escape.” Id. at\n626, quoting 4 W. Blackstone, Commentaries on the Laws of Eng-\nland 317 (1769). Only in “extreme and exceptional cases,\nwhere the safe custody of the prisoner and the peace of the\ntribunal imperatively demand, the manacles may be re-\ntained.” Id. at 626–27, quoting 1 J. Bishop, New Criminal Proce-\ndure § 955, p. 573 (4th Ed. 1895). Deck then extended the con-\nstitutional limits on visible shackles to the sentencing phase\nof capital cases, even though the defendant is by that point no\nlonger presumed innocent. Id. at 633.\n We and other courts have often addressed similar issues\ninvolving both jury trials and other criminal proceedings.\nClosest to this case, the Ninth Circuit in Sanchez-Gomez disap-\nproved a district-wide practice like the district court’s here.\n859 F.3d at 659–65. While that decision was vacated as moot,\nit is persuasive on the merits, at least as a matter of sound ju-\ndicial administration. See also, e.g., United States v. Van Sach,\n458 F.3d 694, 699–700 (7th Cir. 2006) (affirming use of leg\nshackles during jury trial based on defendant’s extensive his-\ntory of belligerence and threatening behavior in court); United\nStates v. Fountain, 768 F.2d 790 (7th Cir. 1985) (same, based on\ndefendants’ violent history); United States v. Miller, 531 F.3d\n340, 345 (6th Cir. 2008) (trial judge abused discretion by defer-\nring without explanation to marshal’s recommendation that\n\n16 No. 17-3549\n\ndefendant wear stun-belt in jury trial); United States v.\nDurham, 287 F.3d 1297, 1304 (11th Cir. 2002) (same).\n The cases show two points critical for Henderson’s chal-\nlenge. First, decisions about such extraordinary restraints are\ndecisions for the judge. They are not to be delegated to security\nor correctional personnel, including the Marshals Service.\nSecond, the reasons for the limits on such extraordinary re-\nstraints apply to criminal hearings broadly; those reasons are\nnot limited to only what a jury might see.\n A. No Delegation of the Judicial Responsibility\n One central theme of the law of courtroom restraints is\nthat the trial judge is the person responsible for making the\ndecisions. The judge cannot simply delegate that responsibil-\nity to the Marshals Service or other correctional or security\nstaff.\n We have made this point repeatedly. E.g., Lopez v. Thurmer,\n573 F.3d 484, 493 n.2 (7th Cir. 2009) (“although a trial court’s\ndecisions about the required level of security during a trial are\nentitled to deference, those decisions must be made by the\ncourt itself; the trial judge ‘may not delegate his discretion to\nanother party’”), quoting United States v. Brooks, 125 F.3d 484,\n502 (7th Cir. 1997). “While the trial court may rely ‘heavily’ on\nthe marshals in evaluating the appropriate security measures\nto take with a given prisoner, the court bears the ultimate re-\nsponsibility for that determination and may not delegate the\ndecision to shackle an inmate to the marshals.” Woods v.\nThieret, 5 F.3d 244, 248 (7th Cir. 1993), quoting Lemons v. Skid-\nmore, 985 F.2d 354, 358 n.4 (7th Cir. 1993). Accord, e.g.,\nSanchez-Gomez, 859 F.3d at 661 (“Courts cannot delegate this\nconstitutional question to those who provide security, such as\n\nNo. 17-3549 17\n\nthe U.S. Marshals Service.”); United States v. Wardell, 591 F.3d\n1279, 1294–95 (10th Cir. 2009) (collecting cases and emphasiz-\ning that trial court has “legal duty to make a thorough and\nindependent determination” of need for device); Miller, 531\nF.3d at 345 (“a district court’s blind adherence to a corrections\nofficer’s recommendation, without making any individual-\nized determinations or specific findings, amounts to an abuse\nof discretion”); Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir.\n2003) (“The use of physical restraints is subject to close judi-\ncial, not law enforcement, scrutiny.”) (emphasis in original).\n This need for a decision by the judge runs through the Su-\npreme Court’s decisions on courtroom restraints, as well. See\nAllen, 397 U.S. at 343 (judge “must be given sufficient discre-\ntion to meet the circumstances of each case. No one formula\nfor maintaining the appropriate courtroom atmosphere will\nbe best in all situations.”); Deck, 544 U.S. at 629 (Fifth and\nFourteenth Amendment prohibit use of physical restraints\nvisible to the jury “absent a trial court determination, in the\nexercise of its discretion, that they are justified by a state in-\nterest specific to a particular trial”). 1\n\n\n\n 1 Our precedents also show a consistent preference for the least re-\nstrictive physical restraints needed for courtroom security. Stephenson v.\nWilson, 619 F.3d 664, 668 (7th Cir. 2010) (“placing any kind of visible re-\nstraint on a defendant’s movement during a criminal trial was permissible\n. . . only if less conspicuous security measures . . . would be insufficient”);\nBrooks, 125 F.3d at 502 (“a defendant is entitled to the minimum restraints\nnecessary and to the least obvious ones”); see also, Durham, 287 F.3d at\n1304 (courts must ask “whether less restrictive, less prejudicial methods\nof restraint were considered or could have been employed”), quoting\nElledge v. Dugger, 823 F.2d 1439, 1451 (11th Cir. 1987); United States v.\nMoore, 651 F.3d 30, 47 (D.C. Cir. 2011) (same).\n\n18 No. 17-3549\n\n B. It’s Not Just About the Jury\n The use of courtroom restraints has been litigated most of-\nten when the restraints are used during jury trials. That’s\nwhere the dangers of unfair prejudice are most severe, and\nwhere, if any restraints are to be used, the usual course is to\nensure they are never visible to the jury. Yet the reasons for\nthe limits on courtroom restraints apply more broadly. They\nweigh in favor of applying those limits to pretrial proceed-\nings. The Court laid out these reasons in Deck v. Missouri.\n First, of course, the criminal justice system presumes the\ndefendant is innocent unless and until proved guilty. 544 U.S.\nat 630. “Visible shackling undermines the presumption of in-\nnocence and the related fairness of the factfinding process.”\nId. By necessity, we trust judges to be less vulnerable than lay\njurors to this and other forms of unfair prejudice. Yet we defy\npsychological realities if we insist that the human beings who\nserve on the bench are immune to such subconscious and sub-\nliminal influence from seeing a human being in chains to pro-\ntect others from him.\n Second, Deck invoked the right to counsel because full\nshackles can interfere with the accused’s ability to communi-\ncate with his lawyer. 544 U.S. at 631, quoting Allen, 397 U.S. at\n344. Courts have long expressed concerns that shackles can be\nheavy and painful, distracting the accused from focusing on\nhis defense. E.g., Durham, 287 F.3d at 1304 (restraints “may\nconfuse the defendant, impair his ability to confer with coun-\nsel, and significantly affect the trial strategy he chooses to fol-\nlow”); People v. Harrington, 42 Cal. 165, 168 (1871), quoted in\nDeck, 544 U.S. at 631. These forms of interference do not de-\npend on whether a jury is present.\n\nNo. 17-3549 19\n\n Third, and most important here, “judges must seek to\nmaintain a judicial process that is a dignified process.” Deck,\n544 U.S. at 631. This dignity is for the good of the institution\nand the public. The Deck Court continued:\n The courtroom’s formal dignity, which includes\n the respectful treatment of defendants, reflects\n the importance of the matter at issue, guilt or in-\n nocence, and the gravity with which Americans\n consider any deprivation of an individual’s lib-\n erty through criminal punishment. And it re-\n flects a seriousness of purpose that helps to ex-\n plain the judicial system’s power to inspire the\n confidence and to affect the behavior of a gen-\n eral public whose demands for justice our\n courts seek to serve.\nId.\n In Allen, the Supreme Court acknowledged that the use of\nshackles and gags in court “is itself something of an affront to\nthe very dignity and decorum of judicial proceedings that the\njudge is seeking to uphold.” 397 U.S. at 344. Full restraints\nmake the prisoner look like a wild and dangerous beast, not\nfit for human society. “A presumptively innocent defendant\nhas the right to be treated with respect and dignity in a public\ncourtroom, not like a bear on a chain.” Sanchez-Gomez, 859\nF.3d at 661. “We must not exaggerate the distance between\n‘us,’ the lawful ones, the respectable ones, and the prison and\njail population; for such exaggeration will make it too easy for\nus to deny that population the rudiments of humane consid-\neration.” Johnson v. Phelan, 69 F.3d 144, 152 (7th Cir. 1995)\n(Posner, C.J., dissenting).\n\n20 No. 17-3549\n\n Such routine treatment is unfair to the defendant, and it\ndiminishes the courts:\n Courtrooms are palaces of justice, imbued with\n a majesty that reflects the gravity of proceedings\n designed to deprive a person of liberty or even\n life. A member of the public who wanders into\n a criminal courtroom must immediately per-\n ceive that it is a place where justice is adminis-\n tered with due regard to individuals whom the\n law presumes to be innocent. That perception\n cannot prevail if defendants are marched in like\n convicts on a chain gang. Both the defendant\n and the public have the right to a dignified, in-\n spiring and open court process. Thus, innocent\n defendants may not be shackled at any point in\n the courtroom unless there is an individualized\n showing of need.\nSanchez-Gomez, 859 F.3d at 662. The Ninth Circuit went on to\nemphasize that these institutional concerns are present\nwhether the hearing is before a jury or a judge:\n We must take seriously how we treat individu-\n als who come into contact with our criminal jus-\n tice system—from how our police interact with\n them on the street to how they appear in the\n courtroom. How the justice system treats people\n in these public settings matters for the public’s\n perception, including that of the defendant.\n Practices like routine shackling and “perp\n walks” are inconsistent with our constitutional\n presumption that people who have not been\n convicted of a crime are innocent until proven\n\nNo. 17-3549 21\n\n otherwise. That’s why we must examine these\n practices more skeptically than those deployed\n in an institutional setting like [Bell v. Wolfish, 441\n U.S. 520 (1979)]. See, e.g., Deck, 544 U.S. at 634\n (holding that a defendant’s Fifth Amendment\n rights were violated by visible shackling before\n a jury at capital sentencing proceedings); Lauro\n v. Charles, 219 F.3d 202, 212–13 (2d Cir. 2000)\n (holding that a defendant’s Fourth Amendment\n rights were violated by a staged and filmed\n perp walk done without a legitimate law en-\n forcement reason). We must treat people with\n respect and dignity even though they are sus-\n pected of a crime.\n859 F.3d at 665.\n C. The Dictum in Deck\n The government argues here that the limits on excessive\nrestraints simply do not apply at arraignments and other pre-\ntrial criminal proceedings where no jury is present. The gov-\nernment relies in part on this comment in Deck, in its review\nof the history of courtroom restraints:\n Blackstone and other English authorities recog-\n nized that the rule did not apply at “the time of\n arraignment,” or like proceedings before the\n judge. Blackstone, supra, at 317; see also Trial of\n Christopher Layer, 16 How. St. Tr. 94, 99\n (K.B.1722). It was meant to protect defendants\n appearing at trial before a jury. See King v. Waite,\n 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K.B.1743)\n\n22 No. 17-3549\n\n (“[B]eing put upon his trial, the Court immedi-\n ately ordered [the defendant’s] fetters to be\n knocked off”).\n544 U.S. at 626.\n As important as Deck is in this field of law, this passing\nobservation about arraignment was demonstrably wrong.\nThe Ninth Circuit’s opinion in Sanchez-Gomez reviewed the\nhistorical sources in detail and showed that the arraignment\ncomment in Deck was not supported by those sources. The\nNinth Circuit explored Blackstone and Layer at length, ex-\nplaining persuasively that Layer “applied the exception to\nBlackstone’s basic rule” against shackling, and that in general\n“shackling at arraignment was allowed after a showing of\nneed,” and not as a matter of routine. 859 F.3d at 664. That\nsort of individualized policy is all that Henderson seeks here.\nThough the opinion in Sanchez-Gomez was later vacated as\nmoot (the defendants there had already pled guilty), the Su-\npreme Court did not cast any doubt on this persuasive histor-\nical critique of the Deck comment or on the Ninth Circuit’s\nanalysis of the impact of routine shackling on the courtroom\nenvironment. See United States v. Sanchez-Gomez, 138 S. Ct.\n1532 (2018).\nIII. Appellate Jurisdiction\n The routine use of full restraints on pretrial defendants is\na subject on which we can and should use our supervisory\npower through a writ of mandamus, which is the only mean-\ningful route to appellate review of this practice. We should\nlimit the pretrial use of courtroom restraints to cases in which\nthe judge personally concludes they are necessary, based not\n\nNo. 17-3549 23\n\non the Marshals Service preference for full restraints on eve-\nryone, but on an assessment of the needs of the particular case\nand defendant.\n A. Collateral Order?\n The majority finds that the judge’s order to keep defend-\nant Henderson in full restraints during all pretrial hearings\ncannot be appealed under 28 U.S.C. § 1291 as a collateral or-\nder. This order was conclusive, separate from the merits, and\nin my opinion effectively unreviewable on appeal from a final\njudgment. There is room to argue that this order meets the\nstandards for collateral orders, but the majority here is correct\nthat the Supreme Court has identified only four pretrial or-\nders that qualify in criminal cases: denial of bail, denial of dis-\nmissal based on double jeopardy, denial of dismissal under\nthe Speech and Debate Clause of the Constitution, and com-\npulsory psychotropic medication to render defendant compe-\ntent to stand trial. Ante at 6. I don’t believe we can or should\nexpand the category of collateral orders to allow routine re-\nview of such pretrial decisions about physical restraints.\n The majority relies on Deck v. Missouri to conclude that ef-\nfective review is available on direct appeal from a conviction.\nThat conclusion is not warranted. Deck dealt with capital sen-\ntencing, and on this point it followed the teaching of Holbrook\nv. Flynn and Illinois v. Allen, which addressed security\nmeasures during jury trials and the prejudicial effects of visi-\nble restraints before juries. I do not share the majority’s confi-\ndence that the pretrial practice Henderson challenges could\never receive meaningful appellate review through 28 U.S.C.\n§ 1291 after conviction at trial. The effects of such pretrial\nshackling on the final judgment will be difficult to detect, to\nput it mildly.\n\n24 No. 17-3549\n\n B. Supervisory Writs of Mandamus\n Better suited to this issue is the relatively rare procedure\nof a supervisory writ of mandamus, similar to the Ninth Cir-\ncuit’s decision in Sanchez-Gomez, 859 F.3d at 649. To be clear, I\ndo not contend here that the use of full restraints on Hender-\nson violates his constitutional rights. We do not need to reach\nthe constitutional issue in this case. We can and should just\nexercise supervisory authority over the practices of district\ncourts within the circuit. And since Henderson has not yet\nbeen tried, this appeal is not moot.\n A supervisory writ of mandamus is an extraordinary rem-\nedy that may be used, in the sound discretion of the appellate\ncourt, to exert “supervisory control of the District Courts” un-\nder the All Writs Act to ensure “proper judicial administra-\ntion in the federal system.” La Buy v. Howes Leather Co., 352\nU.S. 249, 259–60 (1957); accord, 16 Wright, Miller, & Cooper,\nFederal Practice & Procedure § 3934; 28 U.S.C. § 1651. This is an\nappropriate occasion to exercise our discretion. The chal-\nlenged practice will evade meaningful review through ordi-\nnary appellate channels, and the practice is not consistent\nwith the dignity and reputation of the federal courts. A one-\ntime supervisory writ would allow us to address the issue\nwithout creating a new category of interlocutory criminal ap-\npeals as a matter of right.\n The Supreme Court and the federal courts of appeals often\nsay, as the majority does here, that the petitioner must show\nthat his right to the issuance of the writ is “clear and indisput-\nable.” Ante at 9, quoting Cheney v. U.S. District Court for Dis-\ntrict of Columbia, 542 U.S. 367, 381 (2004). Citing the Supreme\nCourt’s dictum in Deck to the effect that the common-law\n\nNo. 17-3549 25\n\npractice allowed shackles at arraignment, the government ar-\ngues that even if Henderson might be right on the merits, he\ncannot win a writ of mandamus under the “clear and indis-\nputable” standard. Also, no Supreme Court or Seventh Cir-\ncuit precedent or statute or rule of procedure squarely bars\nthe challenged practice of routine pretrial use of full re-\nstraints.\n There are two independent reasons to reject this argument\n(apart from the historical error in the Deck dictum). First, as\nshown above, one core principle in the law of courtroom re-\nstraints is the requirement that the trial judge herself exercise\njudgment and discretion that addresses the particulars of the\ncase and the defendant. The record shows here that the dis-\ntrict court refused to exercise that judgment and discretion.\nThe judge instead chose to defer to the Marshals Service’s\nblanket policy for all pretrial proceedings in all criminal cases.\nThat refusal by the judge violated a clear and indisputable\nright. A supervisory writ of mandamus is an exceptional step,\nbut it’s the appropriate remedy for this blanket refusal.\n Second, despite the frequent and prudent cautions against\ntoo-quick resort to writs of mandamus, the Ninth Circuit ex-\nplained in Sanchez-Gomez why, for supervisory use of a writ of\nmandamus, the asserted right need not always be “clear and\nindisputable.” 859 F.3d at 655–56. That much is evident, for\nexample, in Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964),\nwhere the Supreme Court reversed this court’s denial of a su-\npervisory writ of mandamus. The Supreme Court recognized\nthat the underlying issue—a district court’s power to order a\ndefendant to submit to physical and mental examinations—\nwas both “substantial” and one of “first impression,” yet the\nSupreme Court itself effectively issued the writ, providing the\n\n26 No. 17-3549\n\nguidance that was sought. Id. at 111. See also La Buy, 352 U.S.\nat 249 (affirming use of supervisory writ to stop district judge\nfrom repeated practice of referring antitrust cases to special\nmasters); Will v. United States, 389 U.S. 90 (1967) (vacating un-\nexplained supervisory writ of mandamus but leaving room\non remand for another writ with sufficient explanation). 2\n When it comes to the extraordinary remedy of a supervi-\nsory writ of mandamus, Professors Wright, Miller, and\nCooper provide a helpful explanation of the tension between\nthe cautious language of the Supreme Court and federal cir-\ncuits and our actual practices, which reflect more flexible\npragmatism. 16 Federal Practice & Procedure §§ 3934 & 3934.1.\n“Writ review that responds to occasional special needs pro-\nvides a valuable ad hoc relief valve for the pressures that are\nimperfectly contained by the statutes permitting appeals from\nfinal judgments and interlocutory orders.” § 3934.1 at 671.\n A good example is In re Boehringer Ingelheim Pharmaceuti-\ncals, Inc., 745 F.3d 216 (7th Cir. 2014), where we issued a writ\nof mandamus quashing a district court’s discovery sanction\nordering foreign defendants to bring certain witnesses to the\nUnited States for depositions. (I dissented in that case for rea-\nsons not relevant here.) The majority said the writ of manda-\nmus was permissible as a “safety valve” enabling appellate\nreview of a discovery order in an exceptional case. Id. at 219,\nciting Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 111\n(2009) (mandamus can provide “useful safety valve” for\n\n\n 2 Perhaps coincidentally, all three of these “formative” Supreme Court\n\ndecisions on supervisory writs of mandamus originated with this circuit.\nSee 16 Wright, Miller, & Cooper, Federal Practice and Procedure § 3934 at\n669.\n\nNo. 17-3549 27\n\npromptly correcting serious errors). That reasoning applies\nwith even more force here. Unlike the Boehringer defendants,\nwho could have violated an interlocutory order and appealed\na contempt sanction, for Henderson it is either mandamus or\nnothing.\n Before concluding, I should acknowledge the district\njudge’s references to experiences that she and a lawyer she\nknows have had with sudden courtroom violence. In Deck,\nthe Supreme Court said it was “mindful of the tragedy that\ncan result if judges are not able to protect themselves and their\ncourtrooms.” 544 U.S. at 632. I hope I am, as well. That’s why\nappellate courts give trial courts considerable discretion in\nhandling these issues of courtroom security. Judge My-\nerscough’s distinguished career on federal and state benches\nshows her deep devotion to the rule of law and her commit-\nment to treating all parties fairly and with dignity. With re-\nspect, however, given the tension between security and fair-\nness, dignity, and decorum, a blanket practice of using maxi-\nmum security measures for all detained defendants is not the\ncorrect answer to this difficult problem. See United States v.\nBaker, 432 F.3d 1189, 1245 (11th Cir. 2005), abrogated on other\ngrounds by Davis v. Washington, 547 U.S. 813, 821 (2006) (find-\ning it was “improper for the district court to shackle the de-\nfendants based upon what happened in other, unrelated trials\ninvolving different defendants and different charges”), citing\nDeck, 544 U.S. at 633.\n Accordingly, we should not dismiss this appeal. We\nshould issue a supervisory writ of mandamus to require indi-\nvidualized decision-making before a district court may im-\npose full restraints in the courtroom on pretrial defendants\nwho are still presumed innocent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368107/", "author_raw": "HAMILTON, Circuit Judge, dissenting"}]}	MANION	SYKES	HAMILTON	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4590854/	Published	1	1	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,856		United States v. Lawrence D. Adkinson	2019-02-14	17-3381	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and KANNE, and ST. EVE, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3381\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nLAWRENCE D. ADKINSON,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, New Albany Division.\n No. 4:14-cr-00025-2 — Tanya Walton Pratt, Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 14, 2019\n ____________________\n Before WOOD, Chief Judge, and KANNE, and ST. EVE, Cir-\ncuit Judges.\n PER CURIAM. Lawrence Adkinson, Jeﬀrey Kemp, Paul\nGrissom, and Justin Martin (all of whom are appellants in this\nconsolidated appeal) were prosecuted for robbing T-Mobile\nand other cellphone stores. Adkinson, who is African-Ameri-\ncan, challenges two of the district court’s pretrial rulings. The\nﬁrst ruling denied his motion to transfer the case to a venue\nwhere he potentially would have had more African-American\n\f2 No. 17-3381\n\njurors on the venire. The second ruling denied his motion to\nsuppress information that T-Mobile gave to law enforcement\nabout the approximate location of his cellphone during the\nrobberies. Because the district court did not abuse its discre-\ntion in denying Adkinson’s motion to transfer venue, nor vi-\nolate his Fourth Amendment rights by admitting certain\ncell-site location information, we aﬃrm the judgment against\nAdkinson. We address the other defendants’ appeals in a sep-\narate order.\n I. Background\n Adkinson and others, in July 2015, robbed a T-Mobile\nphone store in Clarksville, Indiana, and then a Verizon store\nin Kentucky the next day. With handguns drawn, they stole\napproximately 100 cell phones and other items. They later\nrobbed nine additional stores, including three more T-Mobile\nstores.\n T-Mobile investigated the first robberies. As part of its in-\nvestigation, T-Mobile conducted “tower dumps”: it pulled\ndata from cell sites near the first two victim stores to identify\nwhich phones had connected to them—and thus were close to\nthe crimes. From these dumps, T-Mobile determined that only\none T-Mobile phone was near both robberies and that Adkin-\nson was an authorized user on that phone’s account. Each\ntime a phone connects to any cell site, it also generates a time-\nstamped record known as cell-site location information. From\nits records, T-Mobile determined where Adkinson’s phone\ntraveled. It went from Chicago to the Indiana-Kentucky bor-\nder, approached the Verizon store the day it was robbed, and\nreturned to Chicago that evening. T-Mobile voluntarily gave\n\fNo. 17-3381 3\n\nthis data to the FBI. The record does not reflect whether T-Mo-\nbile did so on its own or at the FBI’s request. T-Mobile deliv-\nered similar data after two more of its stores were robbed.\n T-Mobile’s privacy policy allowed T-Mobile to disclose in-\nformation about its phones’ users. It may do so “[t]o satisfy\nany applicable … legal process or enforceable governmental\nrequest” or “[t]o protect [its] rights or interests, property or\nsafety or that of others.” Law enforcement used the infor-\nmation from T-Mobile to obtain a court order under the\nStored Communications Act, 18 U.S.C. § 2703, granting the\nFBI access to additional cell-site data.\n The government charged Adkinson in the Southern Dis-\ntrict of Indiana, New Albany Division (which encompasses\nClarksville). Before his trial, Adkinson brought two motions\nrelevant to this appeal. First, he moved to suppress “any and\nall evidence obtained through cellphone records and/or trian-\ngulation of cellphone numbers” because, he argued, the gov-\nernment obtained it without a warrant, in violation of the\nFourth Amendment. The district court denied the motion. It\nruled that T-Mobile was not the government’s agent when it\ntransmitted Adkinson’s location data, and Adkinson had con-\nsented to T-Mobile’s cooperation with the government, so no\nFourth Amendment violation had occurred.\n The second motion concerned venue. The district court set\na pretrial motion deadline to file change of venue motions.\nAdkinson did not timely file such a motion. Instead, on the\nmorning of trial, after observing that only one African-Amer-\nican prospective juror was on the jury venire, Adkinson\nmoved during voir dire to transfer the case to a venue with “a\nbetter pool of African Americans,” like Indianapolis. See FED.\n\f4 No. 17-3381\n\nR. CRIM. P. 12(b)(3)(A)(i), 21. Although the court was sympa-\nthetic to the basis for the motion, the court observed that Ad-\nkinson’s morning-of-trial motion was “extremely untimely”\n(it was due a month earlier), and denied it. The court further\nnoted that Adkinson could have obtained the racial composi-\ntion of the judicial division—about one percent African\nAmerican—well in advance of trial. The government added\nthat the population in the Indianapolis Division of the South-\nern District of Indiana was only four-percent African Ameri-\ncan, and the court agreed, adding that many of the counties\nin that division had “very sparse” African-American popula-\ntions. Indeed, Adkinson acknowledged during oral argument\nthat there “is not a significantly larger minority population”\nin the Indianapolis Division than there is in the New Albany\nDivision.\n A jury convicted Adkinson of conspiracy to commit rob-\nbery, 18 U.S.C. § 1951(a), conspiracy to brandish a firearm to\nfurther a crime of violence, id. § 924(o), robbery, id. § 1951(a),\nand brandishing a firearm to further a crime of violence,\nid. § 924(c). The district court sentenced him to 346 months in\nprison.\n II. Discussion\n A. Motion to Change Venue\n On appeal, Adkinson first challenges the district court’s\ndenial of his motion to change venue. He argues that the\nnearly all-white jury pool subjected him to “the substantial\nrisk of implicit racial bias.” We review the district court’s rul-\ning for an abuse of discretion. United States v. Jordan, 223 F.3d\n676, 685–86 (7th Cir. 2000).\n\fNo. 17-3381 5\n\n The district court did not abuse its discretion in denying\nAdkinson’s motion because, regardless of his arguments re-\ngarding the emerging science on implicit bias, the Constitu-\ntion does not entitle a defendant to a venire of any particular\nracial makeup. See Taylor v. Louisiana, 419 U.S. 522, 538 (1975);\nsee also United States v. Stephens, 514 F.3d 703, 709 (7th Cir.\n2008) (“[A] defendant has no right to a ‘petit jury composed\nin whole or in part of persons of [the defendant’s] own race.’”)\n(quoting Powers v. Ohio, 499 U.S. 400, 404 (1999) (alteration in\noriginal)). Adkinson’s attempt to create a presumption of im-\nplicit racial bias based on the racial composition of the jury\nvenire fails. To the extent Adkinson subjectively worried\nabout implicit bias, voir dire was the appropriate vehicle to\naddress it.\n Furthermore, federal law authorized the government to\nprosecute Adkinson in any district where he offended. 18\nU.S.C. § 3237(a); FED. R. CRIM. P. 18. Adkinson committed the\nfirst robbery in Clarksville, Indiana, and the government\nprosecuted him in the corresponding division. Once there, the\nSixth Amendment entitled Adkinson to a venire that was a\nfair cross section of the community and from which the gov-\nernment did not intentionally exclude anyone based on race.\nSee Taylor, 419 U.S. at 538. Adkinson does not dispute that he\nreceived this. In fact, the African-American who was in the\nvenire served on the jury.\n Adkinson had the opportunity to tease out any potential\njuror bias during voir dire, see United States v. Nettles, 476 F.3d\n508, 514 (7th Cir. 2007), and he has never asserted that any of\nthe jurors in his case actually exhibited bias or that he was\nprejudiced in any way. In United States v. Fox, 878 F.3d 574,\n578 (7th Cir. 2017), and United States v. Sinclair, 770 F.3d 1148,\n\f6 No. 17-3381\n\n1155–56 (7th Cir. 2014), we affirmed the denial of the defend-\nants’ eve-of-trial motions to change counsel, reasoning that\nthe cost and inconvenience to the jurors and witnesses out-\nweighed the “pure conjecture” that the defendants would\nsuccessfully retain new representation. Like the defendants in\nFox and Sinclair, Adkinson only speculates that he would\nhave had a more diverse jury pool in the Indianapolis Divi-\nsion.\n Finally, Adkinson’s motion came too late because Adkin-\nson did not abide by the court’s schedule and offered no rea-\nson for his tardiness or failure to comply with the district\ncourt’s pretrial scheduling order. See FED. R. CRIM. P. 12(c)(3);\nUnited States v. Suggs, 703 Fed. Appx. 425, 426 (7th Cir. 2017)\n(holding that district court did not abuse its discretion in de-\nclining to consider an untimely motion).\n B. Motion to Suppress Cell-Site Data\n Adkinson next argues that the district court erroneously\ndenied his motion to suppress the cell-site data that T-Mobile\ncollected. The district court denied the motion to suppress be-\ncause T-Mobile was not acting as a government agent when it\ncollected and shared the data with law enforcement, and be-\ncause Adkinson did not have a reasonable expectation of pri-\nvacy in his location. At oral argument, Adkinson clarified that\nhe is principally challenging the court’s ruling regarding the\ndata collected from the tower dumps, rather than the cell-site\nlocation information because the government obtained the\ncell-site information pursuant to a court order. His argument\nrelies heavily on the Supreme Court’s recent decision in Car-\npenter v. United States, 138 S. Ct. 2206 (2018). In Carpenter, the\nSupreme Court held that the government may not, without a\n\fNo. 17-3381 7\n\nwarrant supported by probable cause, compel a cellular ser-\nvice company to search for and supply the data that its cell\nsites reveal about a user’s past movements. Id. at 2221. Adkin-\nson asserts that, even though the record does not show that\nthe government compelled T-Mobile to provide its data, as a\n“public utility replacement,” T-Mobile is a “de facto govern-\nment agent.” Therefore, he concludes, its collection of this\ndata without a warrant violated the Fourth Amendment.\n The government responds that the Fourth Amendment\nwas not violated, and we agree for three primary reasons.\nFirst, T-Mobile is a private party, and Adkinson has not\nshown that it was the government’s agent. “A search or sei-\nzure by a private party does not implicate the Fourth Amend-\nment” unless the private party “is acting as an instrument or\nagent of the government.” United States v. Shahid, 117 F.3d 322,\n325 (7th Cir. 1997) (internal quotation omitted). To demon-\nstrate agency, Adkinson must establish either that T-Mobile\nagreed to act on the government’s behalf and to be subject to\nits control or that the government ratified T-Mobile’s conduct\nas its own. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir.\n2011) (citing RESTATEMENT (THIRD) OF AGENCY §§ 1.01, 4.01\n(2006)). T-Mobile, however, acted in its own interest to pre-\nvent more robberies of its stores and recover its property\nwhen the company furnished data to the government; there is\nno evidence that it expected to receive any benefit from the\ngovernment. Providing that data did not transform T-Mobile\ninto an agent of the state. See Shahid, 117 F.3d at 326. Nor is\nT-Mobile, as a carrier of cellular service, a government agent\nsimply because it is part of that industry. See United States v.\nKoenig, 856 F.2d 843, 847–48 (7th Cir. 1988). And the govern-\nment’s mere receipt of T-Mobile’s data is not a ratification of\n\f8 No. 17-3381\n\nT-Mobile’s conduct. See Coolidge v. New Hampshire, 403 U.S.\n443, 489–90 (1971); Aldridge, 642 F.3d at 541–52.\n Second, regardless of agency, Adkinson’s Fourth Amend-\nment rights were still not violated because Adkinson con-\nsented to T-Mobile collecting and sharing his cell-site infor-\nmation. A defendant can voluntarily consent in advance to a\nsearch as a condition of receiving contracted services.\nSee Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 872\n(7th Cir. 2013). As a condition of using a phone serviced by\nT-Mobile, Adkinson agreed to T-Mobile’s policy that T-Mo-\nbile could disclose information when reasonably necessary to\nprotect its rights, interests, property, or safety, or that of oth-\ners. And T-Mobile, in accordance with its policy, shared infor-\nmation with law enforcement after one of its stores was\nrobbed at gunpoint.\n Third, Carpenter itself does not help Adkinson. The case\ndid not invalidate warrantless tower dumps (which identified\nphones near one location (the victim stores) at one time (during\nthe robberies)) because the Supreme Court declined to rule\nthat these dumps were searches requiring warrants. 138 S. Ct.\nat 2220. Adkinson also relies on policy guidance from the De-\npartment of Justice about cell-site data. But that policy guid-\nance, by its own terms, “is not intended to and does not create\nany right, benefit, trust, or responsibility.”\n Finally, even if Adkinson sought to challenge the cell-site\nlocation data that the government later collected through the\norder it obtained under the Stored Communications Act, the\nchallenge would be meritless. Adkinson did not challenge the\nadmission of such data below and cannot do so now. As in\nThomas, “though the Supreme Court’s Carpenter decision in-\ndicates a potential Fourth Amendment problem with the cell-\n\fNo. 17-3381 9\n\nsite data used here, [Adkinson] cannot raise this argument\nnow, after failing to raise it in the district court.” United States\nv. Thomas, 897 F.3d 807, 815 (7th Cir. 2018). He has not at-\ntempted to show good cause and Thomas suggests the inter-\nvening Carpenter decision would not constitute good cause. In\nany event, the good-faith exception to the exclusionary rule\nwould apply. See United States v. Curtis, 901 F.3d 846, 849 (7th\nCir. 2018). Law enforcement reasonably relied on settled law\nthat the information from T-Mobile was proper, and the Su-\npreme Court had not yet decided Carpenter when the govern-\nment received the information.\n III. Conclusion\n The judgment of the district court is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368109/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Cir cuit", "ST EVE": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590856/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,857		United States v. Dimitris Terry	2019-02-14	18-1305	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and SYKES and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐1305 \nUNITED STATES OF AMERICA, \n Plaintiff‐Appellee, \n v. \n\nDIMITRIS TERRY, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 11 CR 887‐3 — Ronald A. Guzmán, Judge. \n ____________________ \n\n ARGUED OCTOBER 30, 2018 — DECIDED FEBRUARY 14, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and SYKES and BARRETT, Circuit \nJudges. \n BARRETT, Circuit Judge. Is it reasonable for officers to as‐\nsume that a woman who answers the door in a bathrobe has \nauthority to consent to a search of a male suspect’s residence? \nWe hold that the answer is no. The officers could reasonably \nassume that the woman had spent the night at the apartment, \nbut that’s about as far as a bathrobe could take them. Without \n\f2 No. 18‐1305 \n\nmore, it was unreasonable for them to conclude that she and \nthe suspect shared access to or control over the property. \n I. \n In February 2012, a team of agents from the Drug Enforce‐\nment Agency (DEA) executed an arrest warrant for Dimitris \nTerry related to his role in a conspiracy to possess and distrib‐\nute heroin. The agents didn’t want others to know that Terry \nhad been arrested because they hoped to secure his coopera‐\ntion in the broader investigation; thus, they planned a quick \nand quiet arrest. They waited for him to return home from \ntaking his son to school one morning, arrested him when he \ngot out of his car, and took him to the DEA’s Chicago field \ndivision for questioning. \n A few agents remained behind. Two of them knocked on \nthe door of Terry’s apartment, and a woman answered, wear‐\ning a bathrobe and looking sleepy. The agents identified \nthemselves, explained that they had just arrested Terry, and \nasked to come inside. They didn’t ask the woman who she \nwas, how she was related to Terry, or whether she lived at the \napartment. \n Without hesitation, the woman let the agents in, and they \nimmediately presented her with a consent‐to‐search form. Af‐\nter she both read the form and had it read aloud to her, she \nsigned it, and the search began. Only then, after the search \nwas underway, did the agents ask the woman who she was. \nShe identified herself as Ena Carson, the mother of Terry’s \nson. She explained that her son lived at Terry’s apartment, but \nshe did not. Nevertheless, the agents continued the search for \nroughly the next hour. They recovered letters addressed to \n\fNo. 18‐1305 3\n\nTerry showing proof of residence, four cell phones, and a sus‐\npected drug ledger. \n Meanwhile, two DEA agents conducted a post‐arrest in‐\nterview of Terry back at the field office. Before asking any \nquestions, the agents read Terry his Miranda rights, which \nwere also spelled out on an advice‐of‐rights form. The agents \nsigned the form, but Terry refused to do so. When asked if he \nunderstood his rights, Terry explained that “he was not going \nto sign the form or initial it; that, you know, this wasn’t his \nfirst go‐around with law enforcement … but he was willing \nto talk.” The agents understood Terry’s statement to mean \nthat he had prior experience with law enforcement, under‐\nstood his rights, and was knowingly and voluntarily waiving \nthem by agreeing to talk with the agents. So they wrote “Ver‐\nbal Only” on the advice‐of‐rights form, indicating that Terry \n“gave verbal consent that he understood the form.” Terry \nthen answered the agents’ questions about the case and made \nincriminating statements about his role in the conspiracy to \ndistribute heroin. \n Terry was charged with possession, distribution, and con‐\nspiracy to possess and distribute heroin in violation of 21 \nU.S.C. §§ 841(a) and 846. He moved to suppress both the evi‐\ndence recovered from the search and his post‐arrest state‐\nments to the agents. First, Terry argued that the search was \nunlawful because Carson had neither actual nor apparent au‐\nthority to consent to it—all the agents knew at the time of con‐\nsent was that she answered the door at Terry’s apartment \nwearing a bathrobe. Had the agents simply inquired, Terry \nsaid, they would have discovered that Carson did not live at \nthe apartment. Second, Terry claimed that he had not under‐\nstood that he was waiving his Miranda rights when he \n\f4 No. 18‐1305 \n\nanswered the agents’ questions. Thus, he argued, the waiver \nwas invalid and his post‐arrest statements should be sup‐\npressed. \n After an evidentiary hearing at which the agents and Terry \ntestified, the district court denied both motions. As to the first, \nthe court determined that it was reasonable for the agents to \nassume that Carson lived at the residence and had authority \nto consent to the search because (1) she was permitted to be \nhome when Terry was not; (2) her son resided at the apart‐\nment; (3) the bathrobe “indicated she was more than a mere \ntemporary guest”; and (4) she consented to the search without \nhesitation. \n On the second motion, the court found Terry’s testimony \nthat he did not know that his statements could be used against \nhim “simply not credible” given his many encounters with \nlaw enforcement—he has been arrested at least seventeen \ntimes since he turned eighteen—as well as his level of educa‐\ntion and success in business. The court thought that this was \nstrong evidence that Terry understood his rights. And be‐\ncause he understood his rights, the court concluded that \nTerry’s answers to the agents’ questions provided “a clear \nand unequivocal waiver of his right to remain silent.” \n After a bench trial, the district court found Terry guilty \nand sentenced him to 168 months’ imprisonment. Terry asks \nus to vacate his conviction on the ground that the district \ncourt erroneously denied his motions to suppress. \n II. \n In reviewing a district court’s denial of a motion to sup‐\npress, we review the district court’s legal conclusions de novo \nand its underlying factual determinations for clear error. \n\fNo. 18‐1305 5\n\nUnited States v. Richards, 741 F.3d 843, 847 (7th Cir. 2014). We \ngive “special deference to the district court’s credibility deter‐\nminations because the resolution of a motion to suppress is \nalmost always a fact‐specific inquiry, and it is the district \ncourt which heard the testimony and observed the witnesses \nat the suppression hearing.” United States v. Burnside, 588 F.3d \n511, 517 (7th Cir. 2009). \n A. \n As a rule, the Fourth Amendment requires the govern‐\nment to get a warrant before searching someone’s property. \nU.S. CONST. amend. IV; see also United States v. Basinski, 226 \nF.3d 829, 833 (7th Cir. 2000). But the warrant requirement is \nsubject to several “carefully defined” exceptions. See Coolidge \nv. New Hampshire, 403 U.S. 443, 474 (1971). One is consent from \na person with actual or apparent authority to give it. Basinski, \n226 F.3d at 833–34. When a person allows a third party to ex‐\nercise authority over his property, he “assume[s] the risk that \nthe third party might permit access to others, including gov‐\nernment agents.” Id. at 834 (citing United States v. Matlock, 415 \nU.S. 164, 171 n.7 (1974)). \n The government does not claim that Carson had actual au‐\nthority to consent to the search of Terry’s apartment. The dis‐\npute is about whether she had apparent authority, which ex‐\nists when “the facts available to the officer at the moment … \n‘warrant a man of reasonable caution in the belief’ that the \nconsenting party had authority over the premises,” even if the \nperson actually had no such authority. Illinois v. Rodriguez, 497 \nU.S. 177, 188 (1990) (alteration in original) (citation omitted). \nAn officer might reasonably believe that a third party has au‐\nthority over certain property if the third party appears to have \n“joint access or control for most purposes.” United States v. \n\f6 No. 18‐1305 \n\nRyerson, 545 F.3d 483, 487 (7th Cir. 2008) (quoting Matlock, 415 \nU.S. at 171 n.7). \n To determine whether the officers’ belief was reasonable, \nwe consider “what the officers knew at the time they sought con‐\nsent, not facts that came to light after the search began.” United \nStates v. Alexander, 573 F.3d 465, 474 (7th Cir. 2009) (emphasis \nadded). If the officers did not know enough to reasonably \nconclude that the third party had authority over the premises, \nthey had “a duty to inquire further” before they could rely on \nher consent to the search. United States v. Goins, 437 F.3d 644, \n648 (7th Cir. 2006). As one treatise puts it: “sometimes the \nfacts known by the police cry out for further inquiry, and \nwhen this is the case it is not reasonable for the police to pro‐\nceed on the theory that ‘ignorance is bliss.’” 4 WAYNE R. \nLAFAVE, SEARCH AND SEIZURE § 8.3(g) (5th ed. 2018). \n When the search began, the agents had four facts: Terry \nleft Carson alone in the apartment for about forty‐five \nminutes, Carson was wearing a bathrobe, she appeared \nsleepy, and she consented to the search without hesitation. \nThey did not know who she was, what her relationship to \nTerry was, why she was in the apartment, how long she had \nbeen in the apartment, or whether she lived there. At that \npoint, the agents did not know that Carson was the mother of \nTerry’s child—so it was wrong for the district court to rely on \nthat fact in evaluating Carson’s apparent authority. See Alex‐\nander, 573 F.3d at 474 (explaining that facts that come to light \nafter a search begins cannot support apparent authority to \nconsent). \n The facts that the agents had made it reasonable for them \nto conclude that Carson had spent the night at Terry’s apart‐\nment. That might have been an indication that she lived with \n\fNo. 18‐1305 7\n\nhim, but there are multiple other possibilities. She could have \nbeen a one‐time guest, a periodic guest, a friend or relative \nvisiting for a couple of days—or she may have had some other \nrelationship to Terry. And the existence of so many other \nequally plausible possibilities should have prompted the \nagents to “inquire further.” See Goins, 437 F.3d at 648. \n But they did not. Instead, they thought that it was safe to \nassume that Carson had spent the night in the apartment, \ntherefore lived in the apartment, therefore had joint access to \nor control over the apartment for most purposes, and there‐\nfore had the authority to consent to the search. This kind of \ninferential pileup falls short of the reasonableness required by \nthe Fourth Amendment. See Rodriguez, 497 U.S. at 188–89. A \nbathrobe alone does not clothe someone with apparent au‐\nthority over a residence, even at 10:00 in the morning. \n Because the government has failed to demonstrate that an \nexception to the warrant requirement applies, the evidence \ndiscovered as a result of the search must be suppressed. See \nBasinski, 226 F.3d at 834. \n B. \n Terry also argues that the statements that he made in his \npost‐arrest interview should be suppressed because he did \nnot knowingly waive his Miranda rights by choosing to speak \nwith the agents. A defendant’s “statement during a custodial \ninterrogation is inadmissible at trial unless the prosecution \ncan establish that the accused ‘in fact knowingly and volun‐\ntarily waived Miranda rights’ when making the statement.” \nBerghuis v. Thompkins, 560 U.S. 370, 382 (2010) (citation and \nalteration omitted). Knowing waiver requires “a full aware‐\nness of both the nature of the right being abandoned and the \n\f8 No. 18‐1305 \n\nconsequences of the decision to abandon it.” Id. (citation omit‐\nted). Terry notes that he never explicitly waived his right to \nremain silent and points to his refusal to sign the advice‐of‐\nrights form as evidence that he did not knowingly waive his \nMiranda rights. But this argument is squarely foreclosed by \nSupreme Court precedent. \n In Berghuis v. Thompkins, the defendant refused to sign a \nform acknowledging his Miranda rights. He remained largely \nsilent during questioning that lasted about three hours, but he \nultimately confessed to the crime. Id. at 375–76. The Supreme \nCourt rejected his Fifth Amendment challenge. It explained \nthat a knowing waiver can be express or implied, id. at 384, \nand that “[a]s a general proposition, the law can presume that \nan individual who, with a full understanding of his or her \nrights, acts in a manner inconsistent with their exercise has \nmade a deliberate choice to relinquish the protection those \nrights afford,” id. at 385. Consistent with that principle, it con‐\ncluded that the defendant knowingly waived his rights be‐\ncause (1) his understanding of English was sufficient evidence \nthat he understood the rights that had been presented, id. at \n385–86, and (2) the fact that he answered the detective’s ques‐\ntions was a sufficient “course of conduct indicating waiver,” \nid. at 386 (citation omitted). \n We agree with the district court that Terry’s education, so‐\nphistication, and familiarity with the criminal justice system \nprovides sufficient evidence that he understood his rights \nwhen the agents read them to him. See id. at 385–86; see also \nBurnside, 588 F.3d at 517. And as in Berghuis, Terry’s willing‐\nness to speak with the agents was a “course of conduct indi‐\ncating waiver,” notwithstanding his refusal to sign the ad‐\nvice‐of‐rights form. 560 U.S. at 386 (citation omitted). Thus, \n\fNo. 18‐1305 9\n\nthe district court correctly concluded that Terry knowingly \nwaived his right to remain silent and properly denied his mo‐\ntion to suppress. \n * * * \n The evidence discovered in Terry’s apartment was the \nfruit of an unconstitutional search, so the district court should \nhave granted his motion to suppress it. But the district court \nproperly denied Terry’s motion to suppress his post‐arrest \nstatements. We therefore REVERSE in part, VACATE the con‐\nviction, and REMAND for proceedings consistent with this \nopinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368110/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	SYKES	BARRETT	1	{"WOOD": ", Chief", "SYKES": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590857/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,858		Marshall Spiegel v. Corrine McClintic	2019-02-14	18-1070	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, KANNE, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Michael Stephen Kanne", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐1070 \nMARSHALL SPIEGEL, \n Plaintiff‐Appellant, \n v. \n\nCORRINE MCCLINTIC and VILLAGE OF WILMETTE, \n Defendants‐Appellees. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 16 C 9357 — Sara L. Ellis, Judge. \n ____________________ \n\n ARGUED DECEMBER 4, 2018 — DECIDED FEBRUARY 14, 2019 \n ____________________ \n\n Before BAUER, KANNE, and BRENNAN, Circuit Judges. \n KANNE, Circuit Judge. Matthew Spiegel believes that Cor‐\nrine McClintic (and her husband William) have been violating \ncondominium association rules since the McClintics pur‐\nchased a unit in the building where he lives. To document \ntheir perceived violations, Spiegel took to photographing and \nfilming the McClintics. In response to his less‐than‐subtle sur‐\nveillance, Corrine McClintic began filing police reports. Spie‐\ngel was not arrested. But members of the Village of Wilmette \n\f2 No. 18‐1070 \n\nPolice Department threatened him with arrest for disorderly \nconduct if he persists in photographing and videotaping the \nMcClintics. Spiegel subsequently sued Corrine and the Vil‐\nlage of Wilmette. In his second amended complaint—the dis‐\nmissal of which Spiegel now appeals—he argues that Wil‐\nmette and McClintic conspired together to violate his consti‐\ntutional rights. He further claims that Corrine intruded upon \nhis seclusion, in violation of Illinois law, by photographing \nthe interior of his condominium. Because Spiegel has not \nidentified a constitutional violation or shown that he suﬀered \ndamages from the alleged intrusion upon his seclusion, we \naﬃrm the dismissal. \n I. BACKGROUND \n We take the well‐pleaded allegations from Spiegel’s sec‐\nond amended complaint as true.1 Marshall Spiegel has lived \nin a condominium building in Wilmette, Illinois for 22 years. \nIn 2015, Corinne and William McClintic bought a unit in the \nbuilding. Despite condominium association rules which pro‐\nhibit renting out units, the McClintics did so. They do not live \nin the building but use the building pool almost daily. \n 1. Spiegel’s Surveillance of Corrine McClintic \n Spiegel explains that, “to protect himself from false allega‐\ntions,” he began “documenting violations of the Association’s \n\n\n \n1 For reasons explained below, Spiegel’s motion for leave to file a third \n\namended complaint was untimely. Accordingly, the few additional fac‐\ntual allegations Spiegel advances in that proposed complaint are not rele‐\nvant to our analysis. Spiegel also makes several new factual assertions in \nhis brief. Those facts would not change our analysis even if Spiegel had \nincluded them in his complaint. \n\fNo. 18‐1070 3 \n\nrules by the McClintics.” Specifically, he began photo‐\ngraphing and videotaping the couple. His second amended \ncomplaint is interspersed with pictures of the McClintics \naround the building. In most of the photos, the person pic‐\ntured is looking directly at the camera. \n The tensions between Spiegel and the McClintics quickly \nescalated. Corrine filed numerous police reports between \nJune and October 2016. In one report—in June 2016—Corrine \ntold oﬃcers that Spiegel jumped in front of her car and pho‐\ntographed her. In response, Wilmette police oﬃcers warned \nSpiegel against causing further problems. Spiegel told the of‐\nficers that the report contained false allegations and argued \nthat his conduct did not violate the disorderly conduct ordi‐\nnance, but the oﬃcers “insisted that Spiegel had broken the \nlaw.” On September 20, 2016, Spiegel videotaped Corrine, \nWilliam, and another unit owner talking near the pool. Cor‐\nrine reported to the Wilmette police that Spiegel was vide‐\notaping her in her bathing suit (an allegation he denies) and \nasked that they arrest him for disorderly conduct. On October \n7, 2016, Spiegel documented Corrine McClintic attempting to \nevade a process server in front of the condominium building. \nCorrine McClintic informed Spiegel that the Wilmette police \nhad promised to arrest him if he videotaped her again. She \nreported the incident. \n Spiegel also videotaped Corrine McClintic at a later, un‐\nspecified Association meeting. Once again, she threatened \nSpiegel with arrest if he continued videotaping her. The sec‐\nond amended complaint does not clarify whether McClintic \nfiled a police report. \n\f4 No. 18‐1070 \n\n 2. Corrine McClintic’s Surveillance of Spiegel \n Spiegel alleges that Corrine McClintic, not he, is the one \nengaged in illegal surveillance. He contends that, between \nMay 29 and June 4, 2016, she attempted to peer into Spiegel’s \nunit on three occasions. He suspects she took pictures. Spiegel \nalso caught Corrine McClintic “spying” on him by the pool \nand near the elevator. Spiegel does not specifically allege that \nhe reported these incidents to the Wilmette police. \n He does assert, however, that “Wilmette police have re‐\nfused to act on Spiegel’s claims against residents and others.” \nThe only specific example he gives in the second amended \ncomplaint involves an altercation at a “recent Association \nmeeting” where “a resident’s son‐in‐law battered Spiegel in \nfront of roughly ten people until security guards pulled him \noﬀ.” Spiegel reported the incident to Wilmette police, but they \ndeclined to charge the man. \n 3. Procedural History \n Spiegel filed suit against Corrine McClintic, alleging state \nlaw defamation and requesting a declaration that the First \nAmendment protected his public videotaping. Two days \nlater, he filed a first amended complaint which added the Vil‐\nlage of Wilmette as a defendant. The district court dismissed \nthe first amended complaint for lack of subject matter juris‐\ndiction but granted Spiegel leave to file a second amended \ncomplaint. In that complaint, Spiegel sought relief against \nCorrine McClintic and the Village of Wilmette under 42 U.S.C. \n§ 1983 and against Corrine McClintic for intrusion upon se‐\nclusion under Illinois law. On November 29, 2016, Spiegel \nfiled a motion for a temporary restraining order or prelimi‐\nnary injunction, and the defendants moved to dismiss. \n\fNo. 18‐1070 5 \n\n On September 27, 2017, the district court dismissed Spie‐\ngel’s claims against McClintic and denied Spiegel’s motion for \na preliminary injunction. On November 7, 2017, after supple‐\nmental briefing, the district court dismissed Spiegel’s claim \nagainst Wilmette and entered final judgment. \n Approximately one month later, Spiegel filed a combined \nmotion to vacate the judgment and to file a third amended \ncomplaint. In a text‐only order, the district court denied the \nmotion to vacate because it presented arguments already con‐\nsidered and rejected and denied the motion to amend for the \nsame reasons articulated in the November 7, 2017, order. Spie‐\ngel’s proposed third amended complaint was largely identical \nto his second amended complaint, but it oﬀered several addi‐\ntional factual allegations and named three Wilmette oﬃcers \nas defendants. This appeal followed. \n II. ANALYSIS \n Spiegel frames his suit as one meant to vindicate his con‐\nstitutional right to photograph and videotape in public. He \nessentially argues that the defendants violated his First \nAmendment rights by conspiring to prosecute him for lawful \nconduct. We need not reach the question of whether Spiegel \nhas, in fact, identified a constitutional violation because his \nclaims suﬀer from threshold deficiencies. \n We review a district court’s dismissal under Rule 12(b)(6) \nde novo. LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, \n941 (7th Cir. 2010). Like the district court, we construe the sec‐\nond amended complaint in a light most favorable to Spiegel. \nId. \n\f6 No. 18‐1070 \n\n 1. Spiegel Has Not Stated a § 1983 Claim Against McClintic \n The district court properly dismissed Spiegel’s § 1983 \nclaim against Corrine McClintic because she is a private citi‐\nzen. “To state a claim for relief in an action brought under \n§ 1983, respondents must establish … that the alleged depri‐\nvation was committed under color of state law.” Am. Mfrs. \nMut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). The under‐\ncolor‐of‐state‐law element means that § 1983 does not permit \nsuits based on private conduct, “no matter how discrimina‐\ntory or wrongful.” Id. at 50 (citation omitted). But a private \ncitizen can act under color of law if there is “evidence of a con‐\ncerted eﬀort between a state actor and that individual.” Fries v. \nHelsper, 146 F.3d 452, 457 (7th Cir. 1998). We call this the “con‐\nspiracy theory” of § 1983 liability. \n Spiegel argues that he can hold Corrine McClintic liable \nunder § 1983 merely by alleging aid to or encouragement of \nstate action by McClintic, not an actual conspiracy. That’s in‐\nconsistent with the clear holding in Fries. “To establish § 1983 \nliability through a conspiracy theory, a plaintiﬀ must demon‐\nstrate that: (1) a state oﬃcial and private individual(s) reached \nan understanding to deprive the plaintiﬀ of his constitutional \nrights, and (2) those individual(s) were willful participant[s] \nin joint activity with the State or its agents.” Id. (internal cita‐\ntions omitted). “[M]ere allegations of joint action or a conspir‐\nacy do not demonstrate that the defendants acted under color \nof state law and are not suﬃcient to survive a motion to dis‐\nmiss.” Id. at 458. \n Spiegel also argues that an “agreement among all the con‐\nspirators is not a necessary element of a civil conspiracy,” \nquoting Lenard v. Argento, 699 F.2d 874, 882 (7th Cir. 1983). But \n\fNo. 18‐1070 7 \n\nhe misquotes Lenard: the court actually stated that “[a]n ex‐\npress agreement” is not required. Id. (emphasis added). \n With the proper standard established, we attempt to find \na conspiracy within Spiegel’s allegations. Spiegel quotes lan‐\nguage in Gramenos v. Jewel Cos., asserting that “[i]f the police \npromise to arrest anyone the shopkeeper designates, then the \nshopkeeper is exercising the state’s function and is treated as \nif he were the state.” 797 F.2d 432, 435 (7th Cir. 1986). But Spie‐\ngel doesn’t allege that Wilmette police agreed to arrest Spiegel \nif directed to do so by McClintic. The oﬃcers clearly retained \nfull discretion, evidenced by their decision to not arrest Spie‐\ngel. \n We have repeatedly held that “the mere act of furnishing \ninformation to law enforcement oﬃcers” does not constitute \njoint activity in an unconstitutional arrest. Butler v. Goldblatt \nBros., 589 F.2d 323, 327 (7th Cir. 1978); see also Kelley v. Myler, \n149 F.3d 641, 649 (7th Cir. 1998) (“Bell called the police when \nKelley refused to leave the property after being asked to do so \nand then described the situation to the oﬃcers; he had no fur‐\nther communication with the oﬃcers. Such evidence does not \nsupport her charge that a conspiracy existed to arrest her in \nviolation of her civil rights.”); Gramenos, 797 F.2d at 435 (con‐\nfirming that “one who accuses someone else of a crime is [not] \nexercising the powers of the state”). In Brokaw v. Mercer Cty., \nwe distinguished Gramenos and Butler because “they did not \ninvolve an alleged agreement between the police and the pri‐\nvate citizens; rather, the private individuals acted inde‐\npendently from the government in making the police re‐\nports.” 235 F.3d 1000, 1016 (7th Cir. 2000). The diﬀerence in \nBrokaw was that two private citizens and a deputy sheriﬀ \nagreed to work together to remove a child from a home by \n\f8 No. 18‐1070 \n\nfiling false allegations of child neglect. Thus, the state actor \nintentionally set in motion the seizure of the child, knowing \nthat the removal was premised on false allegations. \n So the mere act of filing false police reports is not actiona‐\nble under § 1983. Spiegel never alleges that the oﬃcers were \naware that the reports were false, much less that they had pre‐\nviously agreed with McClintic to investigate such false re‐\nports. In fact, it’s unclear whether Corrine McClintic’s reports \ncontained falsehoods. He summarily alleges that the police re‐\nports involved false allegations, but never identifies them. Ra‐\nther, Spiegel emphasizes that the oﬃcers refused to listen to \nhis explanations for why his conduct was lawful. That’s not \nenough to establish a conspiracy. \n Because Spiegel has not plausibly alleged a conspiracy be‐\ntween McClintic and Wilmette to violate his constitutional \nrights, he failed to state a § 1983 claim against McClintic. \n 2. Spiegel Has Not Stated a Monell Claim Against Wilmette \n The district court properly dismissed Spiegel’s claim \nagainst Wilmette because “a municipality cannot be held lia‐\nble solely because it employs a tortfeasor.” Monell v. Depʹt of \nSoc. Servs. of City of New York, 436 U.S. 658, 691 (1978). Rather, \na municipality can be liable under § 1983 only “when execu‐\ntion of a government’s policy or custom, whether made by its \nlawmakers or by those whose edicts or acts may fairly be said \nto represent oﬃcial policy, inflicts the injury.” Id. at 694. \n We interpret that language as creating three bases for mu‐\nnicipal liability: “(1) an express policy that causes a constitu‐\ntional deprivation when enforced; (2) a widespread practice \nthat is so permanent and well‐settled that it constitutes a cus‐\n\fNo. 18‐1070 9 \n\ntom or practice; or (3) an allegation that the constitutional in‐\njury was caused by a person with final policymaking author‐\nity.” Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509, \n515 (7th Cir. 2007) (citation omitted). \n Spiegel argues that Wilmette’s disorderly conduct ordi‐\nnance constitutes the express policy of the City. The ordinance \ndoes not expressly criminalize public videography or photog‐\nraphy. Wilmette, IL., Code ch. 12‐4.1 (2017) (making it “un‐\nlawful for any person to knowingly do any act in such unrea‐\nsonable manner as to alarm or disturb another and to provoke \na breach of the peace in the village”). And, given the require‐\nment that the person act in an “unreasonable manner,” the \nordinance does not raise facial constitutional concerns. See \nGower v. Vercler, 377 F.3d 661, 670 (7th Cir. 2004) (explaining \nthat the materially identical Illinois disorderly conduct statute \ndoes not run afoul of the First Amendment); see also Am. Civil \nLiberties Union of Ill. v. Alvarez, 679 F.3d 583, 602 (7th Cir. 2012) \n(“[W]hen ‘speech’ and ‘nonspeech’ elements are combined, \nand the ‘nonspeech’ element (e.g., prostitution) triggers the \nlegal sanction, the incidental effect on speech rights will not \nnormally raise First Amendment concerns.”). Certainly, a per‐\nson can photograph and videotape in a sufficiently disruptive \nway that it would be not unconstitutional to arrest the indi‐\nvidual for disorderly conduct. \n Spiegel’s claim is thus about the enforcement of the stat‐\nute, not its facial constitutionality. “[A] written policy that is \nfacially constitutional, but fails to give detailed guidance that \nmight have averted a constitutional violation by an employee, \ndoes not itself give rise to municipal liability.” Szabla v. City of \nBrooklyn Park., 486 F.3d 385, 392 (8th Cir. 2007) (en banc). Spie‐\ngel does not allege that Wilmette anticipated or intended that \n\f10 No. 18‐1070 \n\nthe ordinance would be enforced to chill lawful, expressive \nconduct like photography. See Christensen v. Park City Mun. \nCorp., 554 F.3d 1271, 1280 (10th Cir. 2009) (explaining that en‐\nforcement of an ordinance can give rise to Monell liability if \nthe injury “was caused by a straightforward enforcement of \nthe ordinances, and not by any additional discretionary ac‐\ntions by the oﬃcers”). \n We do not think Spiegel has plausibly alleged an express \npolicy by Wilmette to enforce the disorderly conduct ordi‐\nnance unconstitutionally. He merely alleges that oﬃcers re‐\nceived reports of a disturbance, responded to the reports, and \nadvised an apparent provocateur to stop his surveillance. \nThat’s not enough. See Surplus Store & Exch., Inc. v. City of Del‐\nphi, 928 F.2d 788, 791 (7th Cir. 1991) (rejecting the argument \nthat a municipality was liable because it “ha[d] a ‘policy’ of \nallowing or instructing its police oﬃcers to enforce the chal‐\nlenged statutes”). \n As for the other bases for Monell liability, Spiegel wisely \ndeclines to argue that they exist. Two visits by oﬃcers do not \nconstitute a widespread policy or practice. And the complaint \nmakes no mention of any Wilmette oﬃcials who might have \npolicymaking authority. \n Spiegel also argues that Wilmette can be held liable be‐\ncause the Village “ratified” its oﬃcers’ actions. For a munici‐\npality to be liable on a ratification theory, the municipality \n“must approve both the employee’s conduct and the basis for \nthat conduct, i.e., the employee’s motivation.” Waters v. City of \nChicago, 580 F.3d 575, 584 (7th Cir. 2009). Spiegel relies upon \nbriefing in which Wilmette argued that the threats to arrest \nSpiegel did not violate the constitution. But contending that \n\fNo. 18‐1070 11 \n\nno constitutional violation occurred is far diﬀerent from as‐\nserting that the actions were appropriate even assuming the \noﬃcers intended to chill free speech. Spiegel did not state a \nMonell claim against Wilmette. \n 3. Spiegel Has Not Stated a Claim for Intrusion Upon Seclu‐\n sion \n Under Illinois law, a plaintiﬀ may sue for an intrusion \nupon seclusion. Lawlor v. N. Am. Corp. of Ill., 2012 IL 112530, ¶ \n34. The cause of actionʹs elements are: “(1) the defendant com‐\nmitted an unauthorized intrusion or prying into the plaintiﬀ’s \nseclusion; (2) the intrusion would be highly oﬀensive or ob‐\njectionable to a reasonable person; (3) the matter intruded on \nwas private; and (4) the intrusion caused the plaintiﬀ anguish \nand suﬀering.” Busse v. Motorola, Inc., 813 N.E.2d 1013, 1017 \n(Ill. App. Ct. 2004). The district court dismissed Spiegel’s \nclaim after finding that he did not allege damages from the \npurported intrusions. \n Spiegel argues, simply, that damages for intrusion upon \nseclusion are presumed. “Under Illinois law, a plaintiﬀ must \nprove actual injury in the form of, for example, medical care, \nan inability to sleep or work, or a loss of reputation and integ‐\nrity in the community in order to recover damages for torts \nsuch as intrusion upon seclusion. Injury is not presumed.” \nSchmidt v. Ameritech Ill., 768 N.E.2d 303, 316 (Ill. App. Ct. 2002) \n(citation omitted) (emphasis added); see also McGreal v. AT & \nT Corp., 892 F. Supp. 2d 996, 1015 (N.D. Ill. 2012) (collecting \ncases in which courts dismissed claims for intrusion upon se‐\nclusion for failure to allege damages specifically). Spiegel did \nnot allege facts to support a required element of his state law \nprivacy claim. \n\f12 No. 18‐1070 \n\n 4. Spiegel’s Remaining Motions \n Spiegel also appeals the district court’s denial of his mo‐\ntion for a preliminary injunction, motion to vacate the judg‐\nment, and motion for leave to file a third amended complaint. \nBecause the district court correctly found that Spiegel had not \nstated a claim against the defendants, the court properly de‐\nnied the motions for injunctive relief and to vacate the judg‐\nment. \n The proposed third amended complaint included claims \nagainst three oﬃcers. The district court denied the motion to \namend on futility grounds but did not address the addition of \nindividual oﬃcers as defendants. Despite that oversight, the \ncourt properly denied the motion to amend. “When there has \nbeen an entry of final judgment, a complaining party may \namend a complaint pursuant to Rule 15(a) only after that \nparty has successfully altered or amended the judgment pur‐\nsuant to Rule 59(e) or the judgment has been vacated pursu‐\nant to Rule 60(b).” Dubicz v. Commonwealth Edison Co., 377 F.3d \n787, 790 (7th Cir. 2004). Because the court entered final judg‐\nment and denied Spiegel’s motion to vacate the judgment, the \ncourt had no jurisdiction to consider the motion to amend. Id. \n III. CONCLUSION \n The district court correctly found that Spiegel did not state \nconstitutional or state law claims in his second amended com‐\nplaint. McClintic did not conspire with Wilmette, and Spiegel \nhas not identified an express policy by Wilmette that caused \na constitutional deprivation. As to his state law privacy claim, \nIllinois law requires that damages be specifically alleged. \n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368111/", "author_raw": "Michael Stephen Kanne"}]}	BAUER	KANNE	BRENNAN	1	{"BAUER": ", Circuit", "KANNE": ", Circuit", "BRENNAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590858/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,957		United States v. Raymond Henderson	2019-02-14	17-3549	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before MANION, SYKES, and HAMILTON, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3549\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nRAYMOND L. HENDERSON,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court\n for the Central District of Illinois.\n No. 17-CR-30072 — Sue E. Myerscough, Judge.\n ____________________\n\n ARGUED FEBRUARY 28, 2018 — DECIDED FEBRUARY 14, 2019\n ____________________\n\n Before MANION, SYKES, and HAMILTON, Circuit Judges.\n SYKES, Circuit Judge. Raymond Henderson was arraigned\non drug and firearm charges while shackled with leg irons\nand handcuffs connected to a waist chain. His attorney\nasked the district judge to have the shackles removed. The\njudge denied the request, deferring to the United States\nMarshals Service’s policy of using full restraints on prisoners\nat every nonjury court appearance. Henderson appealed the\nruling, relying on the collateral-order doctrine to support\n\n2 No. 17-3549\n\ninterlocutory review. After oral argument we ordered sup-\nplemental briefing on the possibility of mandamus as an\nalternative means of review if Henderson’s argument about\nthe collateral-order doctrine failed. We also gave the judge\nan opportunity to respond as provided in Rule 21 of the\nFederal Rules of Appellate Procedure, which governs man-\ndamus procedure. She has done so. We now hold that the\ncollateral-order doctrine does not apply and decline to\nreframe the appeal as a petition for a writ of mandamus. We\ntherefore dismiss the appeal for lack of jurisdiction.\n I. Background\n A grand jury in the Central District of Illinois indicted\nHenderson for possession of crack cocaine with intent to\ndistribute and two related firearms offenses. In accordance\nwith the Marshals Service’s policy in the Springfield\nDivision, Henderson appeared in court for arraignment\nencircled by four security officers and shackled with leg\nirons and handcuffs connected to a waist chain. His attorney\nmoved to have him unshackled except for the leg irons for\nthe remainder of the arraignment and at all future pretrial\nhearings. Counsel argued that routine shackling in court\nviolates the accused’s right to due process and asked the\njudge to hold a hearing to determine whether Henderson\nposed an individualized risk to justify the use of full re-\nstraints.\n More specifically, counsel argued that a criminal accused\nhas a deeply rooted fundamental right not to be shackled in\ncourt proceedings absent an individualized showing of risk\nof flight or violence. The Supreme Court has held that the\nDue Process Clause forbids the routine use of shackles\nbefore the jury. Deck v. Missouri, 544 U.S. 622, 629 (2005).\n\nNo. 17-3549 3\n\nCounsel urged the judge to apply the same rule to pretrial\nproceedings and conduct an individualized risk assessment\nas Deck requires. Finally, counsel argued that the judge, not\nthe Marshals Service, is ultimately responsible for the deci-\nsion to use restraints in court, and a default position of\ndeference to security officials abdicates that judicial respon-\nsibility.\n The government responded with three points. First,\nDeck’s rule against restraints in court is expressly limited to\nthe use of shackles in the presence of a jury. Id. Second, the\nreasons underlying the Deck rule have little, if any, applica-\nbility to nonjury proceedings like an arraignment and other\npretrial hearings. Third, Deck relied in large part on the\ncommon-law rule against shackles, which is limited to jury\ntrials and does not extend to arraignment or “like proceed-\nings before the judge.” Id. at 626. The government urged the\ncourt to apply the standard in Bell v. Wolfish, 441 U.S. 520\n(1979), which governs conditions of confinement for pretrial\ndetainees. Under that standard, the government argued, the\nuse of shackles in pretrial proceedings is not a form of\npunishment and thus is constitutionally permissible.\n In an oral ruling, the judge denied Henderson’s motion,\ndeclaring that “court security is up to our Court Security and\nMarshals” and later saying that she was “concerned that\n[Henderson] might take off.” The judge issued a follow-up\nwritten order that same day, noting that because of “the\nreasons stated in the [g]overnment’s response,” she would\n“continue to defer to the expertise of the United States\nMarshals Service” without making “an individualized\ndetermination that shackling is necessary.”\n\n4 No. 17-3549\n\n Henderson appealed the judge’s order, invoking the\ncollateral-order doctrine and arguing that he has a due-\nprocess right to appear before the court unshackled and that\nthis right applies in nonjury proceedings. At oral argument\nwe asked whether mandamus is available as an alternative\nbasis for interlocutory review should Henderson’s invoca-\ntion of the collateral-order doctrine fail. Because the parties\nhad not formally addressed that question, we ordered\nsupplemental briefing on the availability of supervisory or\nadvisory mandamus and gave the district judge an oppor-\ntunity to respond as if Henderson’s appeal were construed\nas a petition for a writ of mandamus. See FED. R. APP.\nP. 21(b)(4) (describing mandamus procedure and stating that\n“[t]he court of appeals may invite or order the trial-court\njudge to address the petition or may invite an amicus curiae\nto do so”).\n The judge accepted our invitation. She explained that\nmandamus is inappropriate because Deck’s requirement of\nan individualized risk assessment applies only when shack-\nles are used at a jury trial and thus Henderson had not\nshown that he has a “clear and indisputable” right to the\nwrit. J.H. Cohn & Co. v. Am. Appraisal Assocs., Inc., 628 F.2d\n994, 997 (7th Cir. 1980). The government agreed with the\njudge and added that mandamus is not warranted because\nHenderson has other adequate means to pursue his due-\nprocess claim and because this is not an “exceptional”\ncircumstance that would justify issuance of the writ.\n Henderson argued that either supervisory or advisory\nmandamus is appropriate because the issue presented is\nimportant, novel, recurring, and would otherwise evade\neffective appellate review. See id.; United States v. Green,\n\nNo. 17-3549 5\n\n407 F.3d 434, 439 (1st Cir. 2005) (explaining advisory and\nsupervisory mandamus). He also reiterated his position that\nthe shackling order is immediately reviewable under the\ncollateral-order doctrine.\n II. Discussion\n We begin (and also end) with the question of appellate\njurisdiction. Our jurisdiction is limited to appeals from a\nfinal order of the district court. See 28 U.S.C. § 1291. The\njudge’s shackling ruling obviously is not a final order; the\ncase remains pending in the district court. Henderson argues\nthat the collateral-order doctrine supports interlocutory\nreview. That doctrine allows immediate appeal of interlocu-\ntory orders that “finally determine claims of right separable\nfrom, and collateral to, rights asserted in the action, too\nimportant to be denied review and too independent of the\ncause itself to require that appellate jurisdiction be deferred\nuntil the whole case is adjudicated.” Cohen v. Beneficial Indus.\nLoan Corp., 337 U.S. 541, 546 (1949).\n To qualify for immediate review under this exception, an\norder “must conclusively determine the disputed question,\nresolve an important issue completely separate from the\nmerits of the action, and be effectively unreviewable on\nappeal from a final judgment.” Coopers & Lybrand v. Livesay,\n437 U.S. 463, 468 (1978). The Supreme Court has emphasized\nthat the collateral-order doctrine is “a narrow exception to\nthe normal application of the final judgment rule,” and in\ncriminal cases its requirements are applied “with the utmost\nstrictness.” Midland Asphalt Corp. v. United States, 489 U.S.\n794, 798–99 (1989) (quoting Flanagan v. United States, 465 U.S.\n259, 265 (1984)).\n\n6 No. 17-3549\n\n This case turns on the third step of the Coopers & Lybrand\ntest, which asks whether the order in question is effectively\nunreviewable on appeal from a final judgment. The Supreme\nCourt’s seminal shackling case demonstrates that this re-\nquirement is not met here. In Deck the defendant objected to\nappearing before the jury in shackles during the penalty\nphase of his capital murder trial. 544 U.S. at 624–25. The\nSupreme Court reversed the defendant’s death sentence,\nholding that shackling him in front of the jury violated his\nright to due process. Id. at 635. Deck establishes that due-\nprocess shackling claims may be effectively reviewed on\nappeal from a final judgment. That alone forecloses interloc-\nutory review.\n On a broader level, in criminal cases the Court has identi-\nfied only four pretrial orders that qualify for immediate\nreview under the collateral-order doctrine: (1) an order\ndenying bail, Stack v. Boyle, 342 U.S. 1 (1951); (2) an order\ndenying dismissal based on double jeopardy, Abney v. United\nStates, 431 U.S. 651 (1977); (3) an order denying dismissal\nunder the Speech or Debate Clause, Helstoski v. Meanor,\n442 U.S. 500 (1979); and (4) an order for the administration of\npsychotropic medication to render a defendant competent\nfor trial, Sell v. United States, 539 U.S. 166 (2003). We recently\nnoted the distinguishing characteristics of orders of this\ntype: “Bail and involuntary medication are independent of\nthe merits and unreviewable on appeal from a conviction,\nwhile the other two situations exemplify rights not to be\ntried.” United States v. Schock, 891 F.3d 334, 339 (7th Cir.\n2018).\n On the other hand, the Court has held that a constitu-\ntional objection to an attorney-disqualification order is\n\nNo. 17-3549 7\n\neffectively reviewable on appeal from a final judgment.\nFlanagan, 465 U.S. at 269–70. The Court also has refused to\nextend the collateral-order doctrine to pretrial orders deny-\ning dismissal under the Speedy Trial Clause. United States v.\nMacDonald, 435 U.S. 850, 861–63 (1978). These cases present-\ned ordinary claims of constitutional procedural error for\nwhich appeal from a final judgment provides effective\nreview. Henderson’s shackling claim is in the same category.\n Schock is our most recent exploration of the collateral-\norder doctrine in a criminal case. A former congressman\nappealed an order denying his motion to dismiss an indict-\nment charging him with fraud and making false statements.\n891 F.3d at 336. He moved to dismiss based on the Speech or\nDebate Clause, U.S. CONST. art. 1, § 6, cl. 1 (immunizing\nmembers of Congress from liability for their speeches,\ndebates, and other parts of the legislative process), and the\nRulemaking Clause, id. art. I, § 5, cl. 2 (stating that each\nHouse of Congress may determine its own rules and punish\nits members). The district court denied the motion, and the\ndefendant immediately appealed; we affirmed in part and\ndismissed in part. The Speech or Debate Clause, we ex-\nplained, confers an immunity from litigation, so we ad-\ndressed the merits and affirmed the denial of the dismissal\nmotion on this ground. Schock, 891 F.3d at 336. We dismissed\nthe rest of the appeal for lack of jurisdiction, holding that an\norder refusing to dismiss an indictment under the Rulemak-\ning Clause does not qualify for immediate review under the\ncollateral-order doctrine. Id. at 338–39. The defendant’s\nclaim—a kind of separation-of-powers defense—could be\neffectively reviewed on appeal from a final judgment. Id.\n\n8 No. 17-3549\n\n The same is true here. As Deck shows, a due-process chal-\nlenge to a shackling order can be vindicated on appeal from\na final judgment. Henderson argues that the possibility of\nacquittal, from which he cannot appeal, entitles him to\nreview now. But acquittal is possible in every criminal case\nand so cannot justify application of the collateral-order\nexception.\n Turning now to the issue of mandamus, we begin by re-\niterating that Henderson did not petition for the writ. Ordi-\nnarily we will not construe an appeal as a petition for\nmandamus if the appellant “failed to apply for [the] writ in\naccordance with the requirements of Federal Rule of Appel-\nlate Procedure 21(a).” Geaney v. Carlson, 776 F.2d 140, 142\n(7th Cir. 1985).\n However, in a case involving a similar interlocutory ap-\npeal of a pretrial shackling order, the Ninth Circuit, sitting\nen banc, recast the notice of appeal as a petition for manda-\nmus and reached the merits of the defendants’ due-process\nclaim. United States v. Sanchez-Gomez, 859 F.3d 649, 657 (9th\nCir. 2017) (en banc). Although the underlying criminal\nproceedings were long since over, the en banc court declined\nto dismiss the case as moot. Id. at 657–59. Rather, after\nreframing the appeal as a mandamus petition, the court\nconstrued the defendants’ claim as a “functional class ac-\ntion,” id. at 658, and found a constitutional violation, id. at\n666.\n As we’ve explained, in light of Sanchez-Gomez, we issued\nan order for supplemental briefing asking the parties to\naddress the propriety of construing this appeal as a petition\nfor mandamus. They complied. We also invited the district\njudge to respond as provided in Rule 21(b)(4), and she took\n\nNo. 17-3549 9\n\nthe opportunity to do so. While we’ve had this case under\nadvisement, however, the Supreme Court vacated the Ninth\nCircuit’s judgment and remanded with instructions to\ndismiss the case as moot. United States v. Sanchez-Gomez,\n138 S. Ct. 1532, 1542 (2018).\n We do not have a mootness problem here; the underlying\ncriminal case remains pending. Still, we will not follow the\nNinth Circuit’s lead. The All Writs Act codifies the common-\nlaw writ of mandamus: “The Supreme Court and all courts\nestablished by Act of Congress may issue all writs necessary\nor appropriate in aid of their respective jurisdictions and\nagreeable to the usages and principles of law.” 28 U.S.C.\n§ 1651(a). Mandamus “is a drastic and extraordinary remedy\nreserved for really extraordinary causes.” Cheney v. U.S. Dist.\nCt. for D.C., 542 U.S. 367, 380 (2004) (internal quotation\nmarks omitted). “[O]nly exceptional circumstances amount-\ning to a judicial usurpation of power … or a clear abuse of\ndiscretion … will justify the invocation of this extraordinary\nremedy.” Id. (quotation marks and citations omitted).\n The mandamus writ “is one of the most potent weapons\nin the judicial arsenal” and may issue only if three condi-\ntions are satisfied. Id. (internal quotation marks omitted).\nFirst, the petitioner must establish that he has no other\nadequate remedy—“a condition designed to ensure that the\nwrit will not be used as a substitute for the regular appeals\nprocess.” Id. at 380–81. Second, the petitioner must show that\nhis right to the issuance of the writ “is clear and indisputa-\nble.” Id. at 381 (internal quotation marks omitted); see also\nJ.H. Cohn & Co., 628 F.2d at 997. Third, “the issuing court, in\nthe exercise of its discretion, must be satisfied that the writ is\n\n10 No. 17-3549\n\nappropriate under the circumstances.” Cheney, 542 U.S. at\n381.\n Henderson’s argument for reframing the appeal as a peti-\ntion for mandamus falters at the first step. As we’ve already\nexplained, a due-process challenge to the judge’s shackling\norder can be effectively reviewed as part of the “regular\nappeals process,” so Henderson does not lack an adequate\nremedy. Accordingly, we decline to construe the notice of\nappeal as a petition for mandamus.\n We’re left with an interlocutory appeal that does not fall\nwithin the collateral-order doctrine. We therefore DISMISS the\nappeal for lack of jurisdiction.\n\nNo. 17-3549 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368210/", "author_raw": "Diane S. Sykes"}, {"author": "HAMILTON, Circuit Judge, dissenting", "type": "dissent", "text": "HAMILTON, Circuit Judge, dissenting. The law governing\nthe use of physical restraints on the accused in the courtroom\ncan sometimes produce an uneasy compromise, between\nsafety on one hand and fairness, dignity, and decorum on the\nother. In this appeal, the district court has failed to comply\nwith two principles that shape that body of law. First, the\ncourt defers courtroom security issues to the United States\nMarshals Service and its preferred policy: for all detained de-\nfendants, wrists, ankles, and waists are chained together rou-\ntinely, for all in-court proceedings without a jury. Deferring\nthe decision to the Marshals Service is not consistent with the\nrole of the judge. Second, absent special risks, the use of full\nrestraints on a presumptively innocent defendant in the court-\nroom simply is not consistent with basic fairness, dignity, and\ndecorum in the courts of the United States.\n I therefore respectfully dissent from dismissal of this ap-\npeal. We should use our power to issue a supervisory writ of\nmandamus to require the district court to stop the routine use\nof such full restraints in pretrial hearings. On the merits of this\nappeal, I agree in essence with the Ninth Circuit’s en banc\nopinion in United States v. Sanchez-Gomez, 859 F.3d 649 (9th\nCir. 2017) (en banc), vacated as moot, 138 S. Ct. 1532 (2018),\nthough I would base a decision here on our supervisory\npower rather than decide whether the Constitution itself re-\nquires the relief.\n Before going further, I must make two points based on\nmore than twenty years as a federal judge, most in a district\ncourt with a full criminal docket. First, I have depended on\nthe courage, discipline, professionalism, and diplomacy of the\nmen and women of the United States Marshals Service. Like\nso many other judges, I have depended on marshals both to\n\n12 No. 17-3549\n\nmaintain safety in the courthouse and the courtroom and to\nmaintain the dignity, decorum, and respect for all that are es-\nsential to the rule of law.\n Second, in some exceptional cases, defendants and their\nassociates pose extraordinary risks that justify measures such\nas the full restraints, even in the courtroom. The courts of the\nUnited States of America take pride in trying fairly some of\nthe most dangerous people in the world, including terrorists,\nserial killers, organized crime leaders, and drug kingpins and\ntheir henchmen. When criminal associates can learn in ad-\nvance exactly when the defendant will be present outside a\njail or prison, in a federal courtroom, that can raise the risk of\na rare attempt at escape. As a district judge, I often benefited\nfrom the advice of the Marshals Service on appropriate secu-\nrity measures to deal with unusual risks. Yet in all but the rar-\nest cases, the marshals and I were satisfied with at most ankle\nrestraints that were kept out of sight.\n This appeal, however, is not about exceptional measures\nto deal with exceptional risks. It is about routine practices.\nPart I explains below the challenged practice. Part II lays out\nwhat might be called the law of courtroom restraints, empha-\nsizing two points. First, a trial judge may not delegate to oth-\ners, including the Marshals Service, the decision about re-\nstraints in the courtroom. Second, excessive restraints in the\ncourtroom matter even when no jury is present. The practice\nin this district court runs contrary to both of those principles.\nPart III explains why a supervisory writ of mandamus is the\nappropriate procedure to address the court’s practice.\n\nNo. 17-3549 13\n\nI. The Challenged Practice\n The practice in this district court in criminal cases is to\nkeep all detained defendants in “full” restraints in all pretrial\nproceedings. Full restraints link the defendant’s wrists and\nankles to a chain at his waist. A Marshals Service photograph\nof prisoners in such restraints is in the Appendix at A26. Steel\nhandcuffs are linked by a short chain to each other and linked\nby another short chain to yet another chain at the prisoner’s\nwaist. Steel ankle restraints are linked by a short steel chain to\neach other and by another short chain to the chain around the\nprisoner’s waist. The prisoner can barely move, of course.\nThat’s the idea. He cannot walk but can only shuffle slowly.\nWhile standing, he cannot lift his hands to his chin, nor can\nhe move his hands more than a few inches apart. Lawyers and\njudges who take for granted their ability to take notes during\ncourt proceedings should try to imagine how difficult it is for\nsuch a restrained defendant merely to take notes about points\nto discuss with his lawyer at the next recess.\n Consider how this practice works in a contested hearing,\nwhere the judge must evaluate credibility. In opposing a mo-\ntion to suppress, for example, the government witnesses ap-\npear in crisp police uniforms as the protectors of society. They\nexplain why the stop or search was justified. The defendant\nmust shuffle slowly to the witness stand, chained like a wild\nbeast, unable to gesture or even to scratch his head. He testi-\nfies to a very different version of the stop or search, one that\nwould render it unconstitutional. In deciding a close case of\ncredibility, how often will a judge be able to overcome the\nsubconscious effects of the witnesses’ appearances?\n\n14 No. 17-3549\n\n To be clear, defendant Henderson has no objection to the\nuse of only leg irons in the courtroom. He also does not chal-\nlenge any aspect of the Marshals Service management of pris-\noners outside the courtroom itself. Movements of prisoners\noutside the secure environments of jail or prison pose height-\nened risks, and they rarely implicate the considerations of\ndignity and fairness that are so important in the courtroom\nitself. The focus here is only on full restraints in the court-\nroom.\nII. The Law of Courtroom Restraints\n The presumption of innocence lies at the heart of our sys-\ntem of criminal justice. In a series of cases, the Supreme Court\nhas held that both constitutional principles of due process and\nnon-constitutional principles of fair administration of justice\nrequire courts not to impose excessive physical restraints on\nthe accused, who is still presumed innocent.\n In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Supreme\nCourt wrote that an accused could be tried while shackled\nand gagged, or even removed from the courtroom altogether,\nbut only as last resorts based on the accused’s repeated and\naggravated refusals to behave in court. Defendant Allen had\nearned such rare treatment in his jury trial by repeatedly dis-\nrupting the proceedings to the extent that an orderly trial was\nimpossible if he was present and able to speak and interrupt.\nIn Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986), the Court\nfound acceptable the presence of uniformed police in the front\nrow of the courtroom, finding that security measure was not\nan “inherently prejudicial” practice, like shackling, that\n“should be permitted only where justified by an essential\nstate interest specific to each trial.”\n\nNo. 17-3549 15\n\n In Deck v. Missouri, 544 U.S. 622, 626–29 (2005), the Su-\npreme Court made clear that during the guilt phase of a crim-\ninal trial, the due process clauses of the Fifth and Fourteenth\nAmendments forbid routine use of visible shackles. Drawing\non English sources older than the United States, Deck identi-\nfied the traditional common law rule that defendants “must\nbe brought to the bar without irons, or any manner of shackles\nor bonds; unless there be evident danger of an escape.” Id. at\n626, quoting 4 W. Blackstone, Commentaries on the Laws of Eng-\nland 317 (1769). Only in “extreme and exceptional cases,\nwhere the safe custody of the prisoner and the peace of the\ntribunal imperatively demand, the manacles may be re-\ntained.” Id. at 626–27, quoting 1 J. Bishop, New Criminal Proce-\ndure § 955, p. 573 (4th Ed. 1895). Deck then extended the con-\nstitutional limits on visible shackles to the sentencing phase\nof capital cases, even though the defendant is by that point no\nlonger presumed innocent. Id. at 633.\n We and other courts have often addressed similar issues\ninvolving both jury trials and other criminal proceedings.\nClosest to this case, the Ninth Circuit in Sanchez-Gomez disap-\nproved a district-wide practice like the district court’s here.\n859 F.3d at 659–65. While that decision was vacated as moot,\nit is persuasive on the merits, at least as a matter of sound ju-\ndicial administration. See also, e.g., United States v. Van Sach,\n458 F.3d 694, 699–700 (7th Cir. 2006) (affirming use of leg\nshackles during jury trial based on defendant’s extensive his-\ntory of belligerence and threatening behavior in court); United\nStates v. Fountain, 768 F.2d 790 (7th Cir. 1985) (same, based on\ndefendants’ violent history); United States v. Miller, 531 F.3d\n340, 345 (6th Cir. 2008) (trial judge abused discretion by defer-\nring without explanation to marshal’s recommendation that\n\n16 No. 17-3549\n\ndefendant wear stun-belt in jury trial); United States v.\nDurham, 287 F.3d 1297, 1304 (11th Cir. 2002) (same).\n The cases show two points critical for Henderson’s chal-\nlenge. First, decisions about such extraordinary restraints are\ndecisions for the judge. They are not to be delegated to security\nor correctional personnel, including the Marshals Service.\nSecond, the reasons for the limits on such extraordinary re-\nstraints apply to criminal hearings broadly; those reasons are\nnot limited to only what a jury might see.\n A. No Delegation of the Judicial Responsibility\n One central theme of the law of courtroom restraints is\nthat the trial judge is the person responsible for making the\ndecisions. The judge cannot simply delegate that responsibil-\nity to the Marshals Service or other correctional or security\nstaff.\n We have made this point repeatedly. E.g., Lopez v. Thurmer,\n573 F.3d 484, 493 n.2 (7th Cir. 2009) (“although a trial court’s\ndecisions about the required level of security during a trial are\nentitled to deference, those decisions must be made by the\ncourt itself; the trial judge ‘may not delegate his discretion to\nanother party’”), quoting United States v. Brooks, 125 F.3d 484,\n502 (7th Cir. 1997). “While the trial court may rely ‘heavily’ on\nthe marshals in evaluating the appropriate security measures\nto take with a given prisoner, the court bears the ultimate re-\nsponsibility for that determination and may not delegate the\ndecision to shackle an inmate to the marshals.” Woods v.\nThieret, 5 F.3d 244, 248 (7th Cir. 1993), quoting Lemons v. Skid-\nmore, 985 F.2d 354, 358 n.4 (7th Cir. 1993). Accord, e.g.,\nSanchez-Gomez, 859 F.3d at 661 (“Courts cannot delegate this\nconstitutional question to those who provide security, such as\n\nNo. 17-3549 17\n\nthe U.S. Marshals Service.”); United States v. Wardell, 591 F.3d\n1279, 1294–95 (10th Cir. 2009) (collecting cases and emphasiz-\ning that trial court has “legal duty to make a thorough and\nindependent determination” of need for device); Miller, 531\nF.3d at 345 (“a district court’s blind adherence to a corrections\nofficer’s recommendation, without making any individual-\nized determinations or specific findings, amounts to an abuse\nof discretion”); Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir.\n2003) (“The use of physical restraints is subject to close judi-\ncial, not law enforcement, scrutiny.”) (emphasis in original).\n This need for a decision by the judge runs through the Su-\npreme Court’s decisions on courtroom restraints, as well. See\nAllen, 397 U.S. at 343 (judge “must be given sufficient discre-\ntion to meet the circumstances of each case. No one formula\nfor maintaining the appropriate courtroom atmosphere will\nbe best in all situations.”); Deck, 544 U.S. at 629 (Fifth and\nFourteenth Amendment prohibit use of physical restraints\nvisible to the jury “absent a trial court determination, in the\nexercise of its discretion, that they are justified by a state in-\nterest specific to a particular trial”). 1\n\n\n\n 1 Our precedents also show a consistent preference for the least re-\nstrictive physical restraints needed for courtroom security. Stephenson v.\nWilson, 619 F.3d 664, 668 (7th Cir. 2010) (“placing any kind of visible re-\nstraint on a defendant’s movement during a criminal trial was permissible\n. . . only if less conspicuous security measures . . . would be insufficient”);\nBrooks, 125 F.3d at 502 (“a defendant is entitled to the minimum restraints\nnecessary and to the least obvious ones”); see also, Durham, 287 F.3d at\n1304 (courts must ask “whether less restrictive, less prejudicial methods\nof restraint were considered or could have been employed”), quoting\nElledge v. Dugger, 823 F.2d 1439, 1451 (11th Cir. 1987); United States v.\nMoore, 651 F.3d 30, 47 (D.C. Cir. 2011) (same).\n\n18 No. 17-3549\n\n B. It’s Not Just About the Jury\n The use of courtroom restraints has been litigated most of-\nten when the restraints are used during jury trials. That’s\nwhere the dangers of unfair prejudice are most severe, and\nwhere, if any restraints are to be used, the usual course is to\nensure they are never visible to the jury. Yet the reasons for\nthe limits on courtroom restraints apply more broadly. They\nweigh in favor of applying those limits to pretrial proceed-\nings. The Court laid out these reasons in Deck v. Missouri.\n First, of course, the criminal justice system presumes the\ndefendant is innocent unless and until proved guilty. 544 U.S.\nat 630. “Visible shackling undermines the presumption of in-\nnocence and the related fairness of the factfinding process.”\nId. By necessity, we trust judges to be less vulnerable than lay\njurors to this and other forms of unfair prejudice. Yet we defy\npsychological realities if we insist that the human beings who\nserve on the bench are immune to such subconscious and sub-\nliminal influence from seeing a human being in chains to pro-\ntect others from him.\n Second, Deck invoked the right to counsel because full\nshackles can interfere with the accused’s ability to communi-\ncate with his lawyer. 544 U.S. at 631, quoting Allen, 397 U.S. at\n344. Courts have long expressed concerns that shackles can be\nheavy and painful, distracting the accused from focusing on\nhis defense. E.g., Durham, 287 F.3d at 1304 (restraints “may\nconfuse the defendant, impair his ability to confer with coun-\nsel, and significantly affect the trial strategy he chooses to fol-\nlow”); People v. Harrington, 42 Cal. 165, 168 (1871), quoted in\nDeck, 544 U.S. at 631. These forms of interference do not de-\npend on whether a jury is present.\n\nNo. 17-3549 19\n\n Third, and most important here, “judges must seek to\nmaintain a judicial process that is a dignified process.” Deck,\n544 U.S. at 631. This dignity is for the good of the institution\nand the public. The Deck Court continued:\n The courtroom’s formal dignity, which includes\n the respectful treatment of defendants, reflects\n the importance of the matter at issue, guilt or in-\n nocence, and the gravity with which Americans\n consider any deprivation of an individual’s lib-\n erty through criminal punishment. And it re-\n flects a seriousness of purpose that helps to ex-\n plain the judicial system’s power to inspire the\n confidence and to affect the behavior of a gen-\n eral public whose demands for justice our\n courts seek to serve.\nId.\n In Allen, the Supreme Court acknowledged that the use of\nshackles and gags in court “is itself something of an affront to\nthe very dignity and decorum of judicial proceedings that the\njudge is seeking to uphold.” 397 U.S. at 344. Full restraints\nmake the prisoner look like a wild and dangerous beast, not\nfit for human society. “A presumptively innocent defendant\nhas the right to be treated with respect and dignity in a public\ncourtroom, not like a bear on a chain.” Sanchez-Gomez, 859\nF.3d at 661. “We must not exaggerate the distance between\n‘us,’ the lawful ones, the respectable ones, and the prison and\njail population; for such exaggeration will make it too easy for\nus to deny that population the rudiments of humane consid-\neration.” Johnson v. Phelan, 69 F.3d 144, 152 (7th Cir. 1995)\n(Posner, C.J., dissenting).\n\n20 No. 17-3549\n\n Such routine treatment is unfair to the defendant, and it\ndiminishes the courts:\n Courtrooms are palaces of justice, imbued with\n a majesty that reflects the gravity of proceedings\n designed to deprive a person of liberty or even\n life. A member of the public who wanders into\n a criminal courtroom must immediately per-\n ceive that it is a place where justice is adminis-\n tered with due regard to individuals whom the\n law presumes to be innocent. That perception\n cannot prevail if defendants are marched in like\n convicts on a chain gang. Both the defendant\n and the public have the right to a dignified, in-\n spiring and open court process. Thus, innocent\n defendants may not be shackled at any point in\n the courtroom unless there is an individualized\n showing of need.\nSanchez-Gomez, 859 F.3d at 662. The Ninth Circuit went on to\nemphasize that these institutional concerns are present\nwhether the hearing is before a jury or a judge:\n We must take seriously how we treat individu-\n als who come into contact with our criminal jus-\n tice system—from how our police interact with\n them on the street to how they appear in the\n courtroom. How the justice system treats people\n in these public settings matters for the public’s\n perception, including that of the defendant.\n Practices like routine shackling and “perp\n walks” are inconsistent with our constitutional\n presumption that people who have not been\n convicted of a crime are innocent until proven\n\nNo. 17-3549 21\n\n otherwise. That’s why we must examine these\n practices more skeptically than those deployed\n in an institutional setting like [Bell v. Wolfish, 441\n U.S. 520 (1979)]. See, e.g., Deck, 544 U.S. at 634\n (holding that a defendant’s Fifth Amendment\n rights were violated by visible shackling before\n a jury at capital sentencing proceedings); Lauro\n v. Charles, 219 F.3d 202, 212–13 (2d Cir. 2000)\n (holding that a defendant’s Fourth Amendment\n rights were violated by a staged and filmed\n perp walk done without a legitimate law en-\n forcement reason). We must treat people with\n respect and dignity even though they are sus-\n pected of a crime.\n859 F.3d at 665.\n C. The Dictum in Deck\n The government argues here that the limits on excessive\nrestraints simply do not apply at arraignments and other pre-\ntrial criminal proceedings where no jury is present. The gov-\nernment relies in part on this comment in Deck, in its review\nof the history of courtroom restraints:\n Blackstone and other English authorities recog-\n nized that the rule did not apply at “the time of\n arraignment,” or like proceedings before the\n judge. Blackstone, supra, at 317; see also Trial of\n Christopher Layer, 16 How. St. Tr. 94, 99\n (K.B.1722). It was meant to protect defendants\n appearing at trial before a jury. See King v. Waite,\n 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K.B.1743)\n\n22 No. 17-3549\n\n (“[B]eing put upon his trial, the Court immedi-\n ately ordered [the defendant’s] fetters to be\n knocked off”).\n544 U.S. at 626.\n As important as Deck is in this field of law, this passing\nobservation about arraignment was demonstrably wrong.\nThe Ninth Circuit’s opinion in Sanchez-Gomez reviewed the\nhistorical sources in detail and showed that the arraignment\ncomment in Deck was not supported by those sources. The\nNinth Circuit explored Blackstone and Layer at length, ex-\nplaining persuasively that Layer “applied the exception to\nBlackstone’s basic rule” against shackling, and that in general\n“shackling at arraignment was allowed after a showing of\nneed,” and not as a matter of routine. 859 F.3d at 664. That\nsort of individualized policy is all that Henderson seeks here.\nThough the opinion in Sanchez-Gomez was later vacated as\nmoot (the defendants there had already pled guilty), the Su-\npreme Court did not cast any doubt on this persuasive histor-\nical critique of the Deck comment or on the Ninth Circuit’s\nanalysis of the impact of routine shackling on the courtroom\nenvironment. See United States v. Sanchez-Gomez, 138 S. Ct.\n1532 (2018).\nIII. Appellate Jurisdiction\n The routine use of full restraints on pretrial defendants is\na subject on which we can and should use our supervisory\npower through a writ of mandamus, which is the only mean-\ningful route to appellate review of this practice. We should\nlimit the pretrial use of courtroom restraints to cases in which\nthe judge personally concludes they are necessary, based not\n\nNo. 17-3549 23\n\non the Marshals Service preference for full restraints on eve-\nryone, but on an assessment of the needs of the particular case\nand defendant.\n A. Collateral Order?\n The majority finds that the judge’s order to keep defend-\nant Henderson in full restraints during all pretrial hearings\ncannot be appealed under 28 U.S.C. § 1291 as a collateral or-\nder. This order was conclusive, separate from the merits, and\nin my opinion effectively unreviewable on appeal from a final\njudgment. There is room to argue that this order meets the\nstandards for collateral orders, but the majority here is correct\nthat the Supreme Court has identified only four pretrial or-\nders that qualify in criminal cases: denial of bail, denial of dis-\nmissal based on double jeopardy, denial of dismissal under\nthe Speech and Debate Clause of the Constitution, and com-\npulsory psychotropic medication to render defendant compe-\ntent to stand trial. Ante at 6. I don’t believe we can or should\nexpand the category of collateral orders to allow routine re-\nview of such pretrial decisions about physical restraints.\n The majority relies on Deck v. Missouri to conclude that ef-\nfective review is available on direct appeal from a conviction.\nThat conclusion is not warranted. Deck dealt with capital sen-\ntencing, and on this point it followed the teaching of Holbrook\nv. Flynn and Illinois v. Allen, which addressed security\nmeasures during jury trials and the prejudicial effects of visi-\nble restraints before juries. I do not share the majority’s confi-\ndence that the pretrial practice Henderson challenges could\never receive meaningful appellate review through 28 U.S.C.\n§ 1291 after conviction at trial. The effects of such pretrial\nshackling on the final judgment will be difficult to detect, to\nput it mildly.\n\n24 No. 17-3549\n\n B. Supervisory Writs of Mandamus\n Better suited to this issue is the relatively rare procedure\nof a supervisory writ of mandamus, similar to the Ninth Cir-\ncuit’s decision in Sanchez-Gomez, 859 F.3d at 649. To be clear, I\ndo not contend here that the use of full restraints on Hender-\nson violates his constitutional rights. We do not need to reach\nthe constitutional issue in this case. We can and should just\nexercise supervisory authority over the practices of district\ncourts within the circuit. And since Henderson has not yet\nbeen tried, this appeal is not moot.\n A supervisory writ of mandamus is an extraordinary rem-\nedy that may be used, in the sound discretion of the appellate\ncourt, to exert “supervisory control of the District Courts” un-\nder the All Writs Act to ensure “proper judicial administra-\ntion in the federal system.” La Buy v. Howes Leather Co., 352\nU.S. 249, 259–60 (1957); accord, 16 Wright, Miller, & Cooper,\nFederal Practice & Procedure § 3934; 28 U.S.C. § 1651. This is an\nappropriate occasion to exercise our discretion. The chal-\nlenged practice will evade meaningful review through ordi-\nnary appellate channels, and the practice is not consistent\nwith the dignity and reputation of the federal courts. A one-\ntime supervisory writ would allow us to address the issue\nwithout creating a new category of interlocutory criminal ap-\npeals as a matter of right.\n The Supreme Court and the federal courts of appeals often\nsay, as the majority does here, that the petitioner must show\nthat his right to the issuance of the writ is “clear and indisput-\nable.” Ante at 9, quoting Cheney v. U.S. District Court for Dis-\ntrict of Columbia, 542 U.S. 367, 381 (2004). Citing the Supreme\nCourt’s dictum in Deck to the effect that the common-law\n\nNo. 17-3549 25\n\npractice allowed shackles at arraignment, the government ar-\ngues that even if Henderson might be right on the merits, he\ncannot win a writ of mandamus under the “clear and indis-\nputable” standard. Also, no Supreme Court or Seventh Cir-\ncuit precedent or statute or rule of procedure squarely bars\nthe challenged practice of routine pretrial use of full re-\nstraints.\n There are two independent reasons to reject this argument\n(apart from the historical error in the Deck dictum). First, as\nshown above, one core principle in the law of courtroom re-\nstraints is the requirement that the trial judge herself exercise\njudgment and discretion that addresses the particulars of the\ncase and the defendant. The record shows here that the dis-\ntrict court refused to exercise that judgment and discretion.\nThe judge instead chose to defer to the Marshals Service’s\nblanket policy for all pretrial proceedings in all criminal cases.\nThat refusal by the judge violated a clear and indisputable\nright. A supervisory writ of mandamus is an exceptional step,\nbut it’s the appropriate remedy for this blanket refusal.\n Second, despite the frequent and prudent cautions against\ntoo-quick resort to writs of mandamus, the Ninth Circuit ex-\nplained in Sanchez-Gomez why, for supervisory use of a writ of\nmandamus, the asserted right need not always be “clear and\nindisputable.” 859 F.3d at 655–56. That much is evident, for\nexample, in Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964),\nwhere the Supreme Court reversed this court’s denial of a su-\npervisory writ of mandamus. The Supreme Court recognized\nthat the underlying issue—a district court’s power to order a\ndefendant to submit to physical and mental examinations—\nwas both “substantial” and one of “first impression,” yet the\nSupreme Court itself effectively issued the writ, providing the\n\n26 No. 17-3549\n\nguidance that was sought. Id. at 111. See also La Buy, 352 U.S.\nat 249 (affirming use of supervisory writ to stop district judge\nfrom repeated practice of referring antitrust cases to special\nmasters); Will v. United States, 389 U.S. 90 (1967) (vacating un-\nexplained supervisory writ of mandamus but leaving room\non remand for another writ with sufficient explanation). 2\n When it comes to the extraordinary remedy of a supervi-\nsory writ of mandamus, Professors Wright, Miller, and\nCooper provide a helpful explanation of the tension between\nthe cautious language of the Supreme Court and federal cir-\ncuits and our actual practices, which reflect more flexible\npragmatism. 16 Federal Practice & Procedure §§ 3934 & 3934.1.\n“Writ review that responds to occasional special needs pro-\nvides a valuable ad hoc relief valve for the pressures that are\nimperfectly contained by the statutes permitting appeals from\nfinal judgments and interlocutory orders.” § 3934.1 at 671.\n A good example is In re Boehringer Ingelheim Pharmaceuti-\ncals, Inc., 745 F.3d 216 (7th Cir. 2014), where we issued a writ\nof mandamus quashing a district court’s discovery sanction\nordering foreign defendants to bring certain witnesses to the\nUnited States for depositions. (I dissented in that case for rea-\nsons not relevant here.) The majority said the writ of manda-\nmus was permissible as a “safety valve” enabling appellate\nreview of a discovery order in an exceptional case. Id. at 219,\nciting Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 111\n(2009) (mandamus can provide “useful safety valve” for\n\n\n 2 Perhaps coincidentally, all three of these “formative” Supreme Court\n\ndecisions on supervisory writs of mandamus originated with this circuit.\nSee 16 Wright, Miller, & Cooper, Federal Practice and Procedure § 3934 at\n669.\n\nNo. 17-3549 27\n\npromptly correcting serious errors). That reasoning applies\nwith even more force here. Unlike the Boehringer defendants,\nwho could have violated an interlocutory order and appealed\na contempt sanction, for Henderson it is either mandamus or\nnothing.\n Before concluding, I should acknowledge the district\njudge’s references to experiences that she and a lawyer she\nknows have had with sudden courtroom violence. In Deck,\nthe Supreme Court said it was “mindful of the tragedy that\ncan result if judges are not able to protect themselves and their\ncourtrooms.” 544 U.S. at 632. I hope I am, as well. That’s why\nappellate courts give trial courts considerable discretion in\nhandling these issues of courtroom security. Judge My-\nerscough’s distinguished career on federal and state benches\nshows her deep devotion to the rule of law and her commit-\nment to treating all parties fairly and with dignity. With re-\nspect, however, given the tension between security and fair-\nness, dignity, and decorum, a blanket practice of using maxi-\nmum security measures for all detained defendants is not the\ncorrect answer to this difficult problem. See United States v.\nBaker, 432 F.3d 1189, 1245 (11th Cir. 2005), abrogated on other\ngrounds by Davis v. Washington, 547 U.S. 813, 821 (2006) (find-\ning it was “improper for the district court to shackle the de-\nfendants based upon what happened in other, unrelated trials\ninvolving different defendants and different charges”), citing\nDeck, 544 U.S. at 633.\n Accordingly, we should not dismiss this appeal. We\nshould issue a supervisory writ of mandamus to require indi-\nvidualized decision-making before a district court may im-\npose full restraints in the courtroom on pretrial defendants\nwho are still presumed innocent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368210/", "author_raw": "HAMILTON, Circuit Judge, dissenting"}]}	MANION	SYKES	HAMILTON	1	{"MANION": ", Circuit", "SYKES": ", Circuit", "HAMILTON": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590957/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,880	United States v. Dimitris TERRY	United States v. Terry	2019-02-14	No. 18-1305	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Barrett, Sykes, Wood", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415309/", "author_raw": ""}]}	BARRETT	SYKES	WOOD	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443880/	Published	0	1	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,894	Marshall SPIEGEL v. Corrine MCCLINTIC and Village of Wilmette	Spiegel v. McClintic	2019-02-14	No. 18-1070	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Bauer, Brennan, Kanne", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415324/", "author_raw": ""}]}	BAUER	BRENNAN	KANNE	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443894/	Published	0	1	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,192	Roman Lee JONES, Plaintiff-Appellee, v. Robert E. CARTER, Jr., Commissioner, Indiana Department of Correction, Defendant-Appellant.	Roman Lee Jones v. Robert E. Carter	2019-02-15	17-2836	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Rovner, Brennan", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888006/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888007/", "author_raw": ""}, {"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2836\nROMAN LEE JONES,\n Plaintiff-Appellee,\n v.\n\nROBERT E. CARTER, JR., Commissioner, Indiana Department of\nCorrection,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 16 C 2887—William T. Lawrence, Judge.\n ____________________\n\n ARGUED SEPTEMBER 7, 2018 — DECIDED FEBRUARY 15, 2019\n ____________________\n\n Before WOOD, Chief Judge, and ROVNER and BRENNAN, Cir-\ncuit Judges.\n WOOD, Chief Judge. While a serving of meat from a prison\nkitchen would not prompt most Americans to run to a federal\ncourthouse, it raises a critical problem for Indiana inmate Ro-\nman Lee Jones. Jones adheres to a sect of Islam that requires\nits members to follow a diet that regularly includes halal\nmeat. It would not cost the state of Indiana a single penny to\n\n2 No. 17-2836\n\nprovide Jones with the diet he has requested. The only ques-\ntion before us in this appeal is whether Indiana’s refusal to\nprovide Jones with meat substantially burdens his exercise of\nreligion under the Religious Land Use and Institutionalized\nPersons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. We hold that it\ndoes.\n Jones observes Islamic dietary restrictions, which forbid\nthe consumption of certain foods and require that others be\nprepared in accordance with Islamic law—that is, his food\nmust be halal. Since there is overlap in halal and Jewish ko-\nsher requirements, some Muslims—including Jones—find\nkosher food to be an acceptable alternative to a purely halal\ndiet. (There are differences, to be sure: followers of a kosher\ndiet may not consume meat and dairy products together,\nwhile followers of halal may do so; alcohol is permissible for\nkosher, but not for halal; and the lists of permissible animals\nand seafoods differ slightly. See Halal vs Kosher, DIFFEN.COM,\nhttps://www.diffen.com/difference/Halal_vs_Kosher (last\nvisited February 14, 2019). Jones does not argue that these dif-\nferences matter for his prison diet.)\n The Indiana Department of Correction (“DOC”) formerly\nprovided pre-packaged kosher meal trays, which included\nkosher meat, to all inmates who requested them. As demand\nfor the kosher trays went up, however, so did the cost, which\nrose to between $40,000 and $60,000 a month on top of the per\ncapita amount the DOC pays its contractor for standard\nmeals. Unhappy with this trend, the DOC stopped offering\nthe kosher trays and put all the affected inmates on a vegan\ndiet (that is, one with no products made or derived from ani-\nmals).\n\nNo. 17-2836 3\n\n That move satisfied no one: a class of inmates seeking ko-\nsher food sued the DOC and prevailed under RLUIPA in Wil-\nlis v. Commissioner, Indiana Department of Correction. 753 F.\nSupp. 2d 768, 772 (S.D. Ind. 2010). Rather than go back to\nproviding everyone with kosher trays, the DOC worked out\na new arrangement with its contractor so that kosher meals\nare now included in the per capita amount it pays the contrac-\ntor. The DOC built kosher kitchens at a few of its facilities and\nmoved as many kosher inmates into those facilities as possi-\nble. Inmates who could not be moved would continue to re-\nceive the kosher trays, but inmates (including Jones) in a fa-\ncility with a kosher kitchen were given only the option of eat-\ning the food prepared there. That food, however, is vegetarian\n(i.e. plant-derived, plus animal products not requiring slaugh-\nter, such as eggs, milk, cheese, and honey).\n While many Jewish and Muslim inmates would find a nu-\ntritionally adequate vegetarian diet that otherwise satisfies\nkosher standards to be fully compatible with their beliefs,\nJones does not. Jones and the other members of his sect within\nIslam believe that the holy Qur’an plainly commands him to\n“eat what is on earth, Lawful and good”—including meat.\nSome Muslim scholars support Jones’s interpretation, and the\nImam employed by the DOC agreed that Jones’s view is “a\nvalid opinion” shared by some other Muslims, though not the\nImam himself. Jones does not take the position that he needs\nto eat meat with every meal, but he believes it must be a reg-\nular part of his diet. After the DOC refused his request for ko-\nsher trays that include meat, he filed this suit.\n Under RLUIPA, the DOC cannot “impose a substantial\nburden on the religious exercise of a person residing in or con-\nfined to an institution … unless the [DOC] demonstrates that\n\n4 No. 17-2836\n\n[it] … (1) is in furtherance of a compelling governmental in-\nterest; and (2) is the least restrictive means of furthering that\ncompelling governmental interest.” 42 U.S.C. § 2000cc-1. Fol-\nlowing a brief trial, the district court held in favor of Jones and\nordered the DOC to give Jones at least eight meals a week that\n“contain kosher or halal meat.” The judge left it up to DOC to\ndecide on the most effective way to do this, but he specified\nthat one permissible response would be to send Jones the ko-\nsher trays the DOC was already providing to inmates at facil-\nities without kosher kitchens. The record indicates that this\nwould not impose any incremental cost on the DOC. The\ncourt found that by requiring Jones to engage in conduct—\nrefraining from all meat—that violates his sincerely held reli-\ngious belief, the DOC had substantially burdened his reli-\ngious exercise and on this record the DOC lacked a compel-\nling government interest to justify that burden.\n On appeal, the DOC does not contest the sincerity of\nJones’s belief or the district court’s finding that the DOC\nlacked a sufficient justification for its treatment of Jones. The\nsole issue the DOC raises is whether the district court erred in\nholding that Jones was substantially burdened by the vege-\ntarian kosher diet when, as the DOC argues, he could have\npurchased the halal meat he needs to supplement his diet at\nthe prison commissary. The DOC characterizes Jones’s lack of\nmeat as the result of “his own spending choices,” not the re-\nsult of any DOC action. It urges us to find that nothing less\nthan the coercive pressure of the choice between violating his\nreligion and facing starvation qualifies as a substantial bur-\nden under RLUIPA.\n For a time, there was some confusion among the circuits\nabout what constitutes a substantial burden under RLUIPA.\n\nNo. 17-2836 5\n\nWe interpreted the language as requiring that the govern-\nment’s action rendered the religious exercise “effectively im-\npracticable.” Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009).\nOther circuits developed different tests. See, e.g., Abdulhaseeb\nv. Calbone, 600 F.3d 1301, 1313 (10th Cir. 2010) (government\nmust require, prohibit, or substantially pressure religiously\nrelevant conduct); Moussazadeh v. Texas Dep't of Criminal Jus-\ntice, 703 F.3d 781, 793 (5th Cir. 2012) (government must influ-\nence an adherent to act or force him to choose between a gen-\nerally available non-trivial benefit and religious beliefs); Patel\nv. U.S. Bureau of Prisons, 515 F.3d 807, 814 (8th Cir. 2008) (gov-\nernment must significantly inhibit, meaningfully curtail, or\ndeny reasonable opportunities for religious exercise). This\nconfusion was largely dispelled, however, in two recent deci-\nsions from the Supreme Court: Holt v. Hobbs, 135 S. Ct. 853\n(2015), and Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751\n(2014). We recognized in Schlemm v. Wall that Holt and Hobby\nLobby “articulate[d] a standard much easier to satisfy” than\nour former search for something rendering the religious exer-\ncise “effectively impracticable.” 784 F.3d 362, 364 (7th Cir.\n2015).\n In Hobby Lobby, a case involving RLUIPA’s sister statute,\nthe Religious Freedom Restoration Act (“RFRA”), 42\nU.S.C. § 2000bb-1, three closely held corporations faced the\nchoice between providing contraceptive coverage for their\nemployees in violation of their religious beliefs or paying a\nsubstantial fine that would enable them to omit the coverage\nto which they objected. The Supreme Court found that this\nchoice was no choice at all: it imposed a substantial burden on\nthe owners’ religious exercise, and the government had not\nshown that it was the least restrictive means of serving the\ngovernment’s (assumed) compelling interest. 134 S. Ct. at\n\n6 No. 17-2836\n\n2759. The Court rejected the suggestion that the corporations\ncould “eliminate[] the substantial burden” and avoid the fine\nby dropping employee health insurance entirely since that\nwould also cause economic harm. Id. at 2776–77. In so ruling,\nthe Court emphasized that Congress explicitly stated that\nRFRA should “be construed in favor of a broad protection of\nreligious exercise, to the maximum extent permitted by the\nterms of this chapter and the Constitution.” Id. at 2762 (quot-\ning § 2000cc-3(g)).\n The next year, in Holt, the Court considered the case of a\nMuslim inmate who wanted to grow a 1/2-inch beard in ac-\ncordance with his religious beliefs. Such a beard, however, of-\nfended the grooming policy of the Arkansas Department of\nCorrections, and so the Department refused to allow him to\ngrow it. When the case arrived at the Supreme Court, the\nCourt read RLUIPA as an “expansive protection for religious\nliberty” and held that the inmate “easily” demonstrated a\nsubstantial burden because he faced “serious disciplinary ac-\ntion” if he violated the grooming policy and grew the beard.\n135 S. Ct. at 860, 862. The Court further rejected attempts to\ncall the burden of shaving “slight” if shaving was not abso-\nlutely prohibited by the inmate’s beliefs, writing that\n“RLUIPA … applies to an exercise of religion regardless of\nwhether it is ‘compelled.’” Id. at 862.\n The burdens on the person asserting religious rights in\nHolt and Hobby Lobby involved large fines and significant dis-\nciplinary consequences. But the Court did not indicate that\npressures of that severity represented the floor for finding a\nsubstantial burden under RFRA or RLUIPA. To the contrary,\nthe Court clarified that RLUIPA’s substantial burden inquiry\nrobustly supports inmate religious practice—it specifically\n\nNo. 17-2836 7\n\ndisapproved of the practice of offsetting against the burden im-\nposed by the rule any other religious accommodations offered\nor the strength of the religious command. These principles\ngovern Jones’s case and indicate that the DOC’s food policy is\nplacing a substantial burden on him.\n The DOC estimates it will cost Jones a few dollars a day\n($14.00 a week) to pay for his own halal meat at the commis-\nsary. While that amount may seem minor in comparison to\nthe multi-million-dollar fine Hobby Lobby faced, it is a large\namount for Jones. He makes, at most, $8.40 per week at his\nprison job. Even though that amount is supplemented by spo-\nradic funds sent from his friends and family, Jones cannot re-\nliably afford to pay for the meat himself. The state is in effect\ndemanding that Jones, uniquely among all inmates, zero out\nhis account and forgo purchasing other items such as hygiene\nproducts or over-the-counter medicine, if he wants to avoid a\ndiet that violates his religious beliefs.\n When the state forces a prisoner to choose between ade-\nquate nutrition and religious practice, it is imposing a sub-\nstantial burden on his religious practice under the rules an-\nnounced in Hobby Lobby and Holt. Thompson v. Holm, 809 F.3d\n376, 380 (7th Cir. 2016) (collecting cases). After these recent\ncases, there can be no doubt that when the state forces a pris-\noner to give away his last dime so that his daily meals will not\nviolate his religious practice, it is imposing a substantial bur-\nden. We therefore have no need here to decide whether a truly\nnegligible or unquestionably affordable fine would similarly\nbe subject to attack under RLUIPA.\n Jones’s case is not near any relevant line. Indeed, even be-\nfore Hobby Lobby and Holt, other circuits found that asking\nprisoners to pay daily for religiously compliant diets was a\n\n8 No. 17-2836\n\nsubstantial burden, especially where an inmate was indigent.\nSee Moussazadeh, 703 F.3d at 793–94 (holding it is a substantial\nburden to require an inmate to pay for a kosher meal because\ndaily meals are a generally available benefit); Love v. Reed, 216\nF.3d 682, 689 (8th Cir. 2000) (rejecting the argument that the\navailability of food for purchase at the commissary alleviated\nthe substantial burden on an indigent inmate); Beerheide v.\nSuthers, 286 F.3d 1179, 1188 (10th Cir. 2002) (calling a 25% co-\npayment program for kosher meals that would require even\nprisoners with financial support from their friends and family\n“to sacrifice nearly all of that income to maintain their reli-\ngious duties” a “Hobson’s choice rather than a true alterna-\ntive”); Abdulhaseeb, 600 F.3d at 1317 (“[A]ny ability to pur-\nchase is chimerical where a plaintiff is indigent….”).\n The dissent suggests that the record before us is insuffi-\ncient to hold that Jones is substantially burdened, and that we\nought to require a showing of indigency or other hardship to\nsatisfy the substantial burden test. To support the suggestion\nthat the court ought to further scrutinize Jones’s ability to pay,\nthe dissent relies on pre-Hobby Lobby cases from our sister cir-\ncuits that required similar findings of indigency for inmates\nrequesting religious accommodations. See infra at 11 (citing\nAbdulhaseeb, 600 F.3d at 1317–18, and Patel, 515 F.3d at 814).\n When the Supreme Court was presented with a far sparser\nrecord supporting the claimed substantial burden in Hobby\nLobby, however, the Court declined to inquire further into the\nquestion of ability to pay, despite criticism in dissent both at\nthe Court and in the Tenth Circuit. Instead, it gave greater\nweight to the religious freedom concerns and implicitly dis-\napproved the ability-to-pay aspect of the earlier opinions\nfrom our sister circuits. Hobby Lobby, 134 S. Ct. at 2775–76\n\nNo. 17-2836 9\n\n(finding the large fines were clearly a substantial burden\nwithout requiring Hobby Lobby to prove its inability to pay\nor whether the fines would be “merely” significant or actually\ncrippling); id at 2798 (Ginsburg, J., dissenting) (criticizing the\nmajority opinion for “barely paus[ing] to inquire whether any\nburden imposed … is substantial”); Hobby Lobby Stores, Inc. v.\nSebelius, 723 F.3d 1114, 1164 (10th Cir. 2013) (Briscoe, J., con-\ncurring in part and dissenting in part) (“At the hearing on\nplaintiffs’ motion for preliminary injunction, plaintiffs pre-\nsented no evidence of any kind. … As a result, we know very\nlittle about any of the important facts of this case” including\nevidence of substantial burden); id. at 1181, 1181 n.4 (10th Cir.\n2013) (Matheson, J., concurring in part and dissenting in part)\n(expressing concern that “plaintiffs have provided almost no\nevidence” including “plaintiffs have failed, for example, to\nprovide the district court with complete information about\nthe financial strain they would bear”). The Supreme Court\nthus consciously chose not to require a demonstration of\nhardship—or detailed findings on finances—before deter-\nmining that the fine at issue triggered protection for Hobby\nLobby’s owners. Hobby Lobby, 134 S. Ct. at 2759. Jones is enti-\ntled to no less. He has testified to his meager sources of in-\ncome, and the state has confirmed that the cost to Jones of\nsubsidizing his own religiously compelled diet would sys-\ntematically outpace his reliable income. That would be\nenough under Hobby Lobby for the Supreme Court, and thus it\nis enough for us.\n DOC’s position also cannot be reconciled with the text of\nRLUIPA. The statute applies to “any exercise of religion,” no\nmatter which faith or specific practice. §2000cc-5(7)(A); see\nHolt, 135 S. Ct. at 860 (citing this language to reaffirm\n\n10 No. 17-2836\n\nRLUIPA’s strength and breadth). Some religious diets pro-\nhibit certain foods; others require complex preparation.\nJones’s diet requires him to consume one additional item of\nfood beyond what he is currently being offered. We find no\nprincipled reason for endorsing DOC’s practice of withhold-\ning a readily available food for Jones—one that it is serving to\nmany other inmates. See Willis, 753 F. Supp. 2d at 772 (requir-\ning the Indiana DOC to provide inmates with kosher diets,\nthough it was substantially more burdensome on the state to\ndo so). See also Moussazadeh, 703 F.3d at 793–94 (emphasizing\nthat the denial of generally available benefits such as a daily\nmeal is always a substantial burden, since such action is akin\nto denying the otherwise available benefits in Sherbert v. Ver-\nner, 374 U.S. 398, 404 (1963), and Thomas v. Review Board of the\nIndiana Employment Security Division, 450 U.S. 707, 717–18\n(1981)).\n The DOC’s final pitch is that it should not have to “subsi-\ndize” or “underwrite” Jones’s religious diet. Perhaps it fears\nescalating costs. It did not, however, appeal the question of\nthe state’s interest. The district court held that on this record,\nDOC did not demonstrate that any such risk exists, and we\nhave no reason to take issue with its conclusion. This is not a\nclass action, and Jones is asking only to receive the same ko-\nsher trays that DOC is already providing to other inmates. If\nenough other inmates come along and express the same reli-\ngiously based need, then the state always has the option of\nadding halal or kosher meat to its new kitchens (if that ap-\npears to be the cost-effective way to handle the issue). But that\nis not our case, and we see no reason to opine on a hypothet-\nical situation. That forbearance is especially appropriate given\nthe fact that Jones’s belief that eating meat is a requirement\n\nNo. 17-2836 11\n\nfor devout Muslims appears to be a minority view within Is-\nlam.\n We AFFIRM the judgment of the district court.\n\n12 No. 17-2836", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368445/", "author_raw": "Diane Pamela Wood"}, {"author": "BRENNAN, Circuit Judge, dissenting", "type": "dissent", "text": "BRENNAN, Circuit Judge, dissenting. To prevail on an\nRLUIPA claim of this sort, an inmate must show his religious\nexercise has been substantially burdened; a lesser burden is\ninsuﬃcient. At issue in this case is whether the financial\nresponsibility placed on inmate Jones to include halal meat in\nhis diet rises to the level of a substantial burden. We do not\nhave enough evidence to make that determination because\nthe district court never reached the issue. Jones’s claim should\nbe remanded for the district court to conduct fact-finding as\nto whether he is indigent or suﬀers other financial hardship,\nand whether his religious exercise was substantially\nburdened.\n Our court addressed RLUIPA’s “substantial burden”\nrequirement in Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015),\nin the wake of Holt v. Hobbs, 135 S.Ct. 853 (2015), and Burwell\nv. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). There we\nnoted that while Holt held that the “substantial burden”\nrequirement was met by a “serious violat[ion] [of] religious\nbeliefs,” what “serious” requires remained undefined.\nSchlemm, 784 F.3d at 364–65 (quoting Holt, 135 S.Ct. at 862, in\nturn quoting Hobby Lobby, 134 S.Ct. at 2775).\n The majority opinion does not grapple with this unre-\nsolved question. Its interpretation of “substantial” eﬀectively\nmeans that any burden on an inmate’s religious diet, no\nmatter how slight, violates RLUIPA. While acknowledging\nthat Holt and Hobby Lobby “involved large fines and signifi-\ncant disciplinary consequences,” the majority opinion states\nthat the “pressures of that severity [do not] represent[] the\nfloor for finding a substantial burden under RFRA or\nRLUIPA.” Million dollar fines and serious prison disciplinary\nactions, as in Hobby Lobby and Holt, might not be the floor for\n\nNo. 17-2836 13\n\na substantial burden. But 42 U.S.C. § 2000cc-1 requires some\nsort of floor. Congress so provided when it incorporated a rel-\native and proportionate term (“substantial”) into the statute.\nThe text of RLUIPA requires courts to assess the severity of\nthe burden placed on an individual inmate, and whether that\nburden rises to the level of “substantial.” Anything less risks\nrendering the statutory term “substantial” superfluous. See\nANTONIN SCALIA & BRYAN A. GARNER, READING LAW 174–79\n(2012) (discussing the surplusage canon). This evaluation\nrequires a full factual record, which we do not have here.\n Other courts have considered two factors to determine\nwhether a burden on an inmate’s diet is “substantial”: the\nreligious meal options available, and the ability of the\nreligious inmate to obtain them. See Abdulhaseeb v. Calbone, 600\nF.3d 1301, 1317–18 (10th Cir. 2010) (“First, any ability to\npurchase is chimerical where a plaintiﬀ is indigent, as is Mr.\nAbdulhaseeb. Second, … [because] no Halal vendors have\nbeen approved by DOC … Mr. Abdulhaseeb could not have\npurchased halal foods even if he had funds.”); see also Patel v.\nU.S. Bureau of Prisons, 515 F.3d 807, 814 (8th Cir. 2008) (“[The\ninmate] only oﬀers his single, vague and unsupported state-\nment about the potential cost, and the record oﬀers no\nevidence regarding Patel’s financial status. … Patel has not\noﬀered suﬃcient evidence to create a genuine issue of mate-\nrial fact … [to show he] has been substantially burdened.”).1\nCompare with Moussazadeh v. Texas Dept. of Criminal Justice,\n\n 1 Whether Patel will survive post-Holt and Hobby Lobby is currently on\n\nappeal in the Eighth Circuit. For that case’s district court opinion, see Mu-\nhammad v. Wheeler, No. 5:15-cv-130-KGB/PSH, 2018 WL 1558279 (E.D. Ark.\nMar. 30, 2018).\n\n14 No. 17-2836\n\n703 F.3d 781, 793–94 (5th Cir. 2012) (holding that denying a\nJewish inmate free kosher meal trays available to all other\nJewish inmates denies the inmate an “‘essential’ benefit given\nto every prisoner”).2 This court should adopt a similar\nstandard.\n The first inquiry can be assessed by examining the halal\n(or kosher, or other religious) options available in a prison’s\ncafeteria or commissary. The parties do not dispute Jones has\nbeen housed in a prison facility with a vegetarian kosher\nkitchen and a commissary stocked with halal meat. Indeed,\nJones purchased halal meat to supplement his vegetarian\nkosher meals. This option is available to all inmates in facili-\nties with kosher kitchens. Rather than requesting a generally\navailable benefit, Jones asks to be given for free what other\ninmates in his prison facility must purchase. Cf. Moussazadeh,\n703 F.3d at 793 (“[D]enial of religiously suﬃcient food where\nit is a generally available benefit would constitute a substan-\ntial burden on the exercise of religion.”). The second inquiry\ncan be resolved by a showing of indigency or other hardship\nfor the particular inmate. For Jones, that remains a genuine\nquestion of fact.\n\n\n\n 2The majority opinion cites Moussazadeh for the proposition that “the\ndenial of generally available benefits such as a daily meal is always a\nsubstantial burden.” But the Fifth Circuit in Moussazadeh was careful to\ndistinguish the facts before it, in which a Jewish inmate was denied free\nkosher cafeteria trays, from those in Patel, where kosher and halal food\nwas freely provided in the cafeteria “and satisfied all other Muslims in the\nprison, [but did not meet the] particularly nuanced version of halal food”\npreferred by the specific inmate. Moussazadeh, 703 F.3d at 794. Here, the\nparties do not dispute that in the DOC cafeteria Jones has access to free,\nnutritionally adequate, vegetarian kosher trays.\n\nNo. 17-2836 15\n\n The majority opinion states that unless the district court is\naﬃrmed, Jones will be forced to “give away his last dime” to\nobtain halal meat. Were that true, the DOC’s policy may very\nwell impose a substantial burden on Jones. But because the\ndistrict court never made any findings of fact on this topic,\nJones’s financial situation—and the severity of the burden\ncommissary purchases place on him—is an unresolved fact\ndispute. The DOC submitted evidence tending to impeach\nJones’s narrative of financial diﬃculty: for example, Jones reg-\nularly purchased halal meat at the prison commissary as re-\ncently as nine months before his deposition in this case. The\nmajority opinion notes Jones makes “at most, $8.40 per week\nat his prison job.” Yet Jones continues to make regular com-\nmissary purchases of up to sixty dollars a month. This implies\nJones has access to funds beyond his prison salary, possibly\ncontributed by friends and family members. The majority\nopinion examines the conflicting testimony and resolves it in\nfavor of Jones. But the district court never addressed this\ngenuine issue of material fact in its opinion, and as a review-\ning court, we are not in a position to do so. Because this\nremains unresolved, the severity of the burden placed on\nJones’s religious exercise by the DOC cannot be assessed as\n“substantial,” or as insubstantial. We just do not know.\n In addition to the claim’s other elements, to recover in this\nlawsuit Jones should be required to show he is indigent and\nunable to acquire halal meat on his own. The district court did\nnot hear the necessary evidence on the expenses of prison life\nand made no finding as to Jones’s financial circumstances.\nBecause halal meat options are readily available within the\n\n16 No. 17-2836\n\nfacility where Jones is housed, remand is warranted for fur-\nther fact-finding on these questions.\n For these reasons, I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368445/", "author_raw": "BRENNAN, Circuit Judge, dissenting"}]}	WOOD	ROVNER	BRENNAN	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4591192/	Published	1	1	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,292		Roman Lee Jones v. Robert E. Carter	2019-02-15	17-2836	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and ROVNER and BRENNAN, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2836\nROMAN LEE JONES,\n Plaintiff-Appellee,\n v.\n\nROBERT E. CARTER, JR., Commissioner, Indiana Department of\nCorrection,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 16 C 2887 — William T. Lawrence, Judge.\n ____________________\n\n ARGUED SEPTEMBER 7, 2018 — DECIDED FEBRUARY 15, 2019\n ____________________\n\n Before WOOD, Chief Judge, and ROVNER and BRENNAN, Cir-\ncuit Judges.\n WOOD, Chief Judge. While a serving of meat from a prison\nkitchen would not prompt most Americans to run to a federal\ncourthouse, it raises a critical problem for Indiana inmate Ro-\nman Lee Jones. Jones adheres to a sect of Islam that requires\nits members to follow a diet that regularly includes halal\nmeat. It would not cost the state of Indiana a single penny to\n\n2 No. 17-2836\n\nprovide Jones with the diet he has requested. The only ques-\ntion before us in this appeal is whether Indiana’s refusal to\nprovide Jones with meat substantially burdens his exercise of\nreligion under the Religious Land Use and Institutionalized\nPersons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. We hold that it\ndoes.\n Jones observes Islamic dietary restrictions, which forbid\nthe consumption of certain foods and require that others be\nprepared in accordance with Islamic law—that is, his food\nmust be halal. Since there is overlap in halal and Jewish ko-\nsher requirements, some Muslims—including Jones—find\nkosher food to be an acceptable alternative to a purely halal\ndiet. (There are differences, to be sure: followers of a kosher\ndiet may not consume meat and dairy products together,\nwhile followers of halal may do so; alcohol is permissible for\nkosher, but not for halal; and the lists of permissible animals\nand seafoods differ slightly. See Halal vs Kosher, DIFFEN.COM,\nhttps://www.diffen.com/difference/Halal_vs_Kosher (last\nvisited February 14, 2019). Jones does not argue that these dif-\nferences matter for his prison diet.)\n The Indiana Department of Correction (“DOC”) formerly\nprovided pre-packaged kosher meal trays, which included\nkosher meat, to all inmates who requested them. As demand\nfor the kosher trays went up, however, so did the cost, which\nrose to between $40,000 and $60,000 a month on top of the per\ncapita amount the DOC pays its contractor for standard\nmeals. Unhappy with this trend, the DOC stopped offering\nthe kosher trays and put all the affected inmates on a vegan\ndiet (that is, one with no products made or derived from ani-\nmals).\n\nNo. 17-2836 3\n\n That move satisfied no one: a class of inmates seeking ko-\nsher food sued the DOC and prevailed under RLUIPA in Wil-\nlis v. Commissioner, Indiana Department of Correction. 753 F.\nSupp. 2d 768, 772 (S.D. Ind. 2010). Rather than go back to\nproviding everyone with kosher trays, the DOC worked out\na new arrangement with its contractor so that kosher meals\nare now included in the per capita amount it pays the contrac-\ntor. The DOC built kosher kitchens at a few of its facilities and\nmoved as many kosher inmates into those facilities as possi-\nble. Inmates who could not be moved would continue to re-\nceive the kosher trays, but inmates (including Jones) in a fa-\ncility with a kosher kitchen were given only the option of eat-\ning the food prepared there. That food, however, is vegetarian\n(i.e. plant-derived, plus animal products not requiring slaugh-\nter, such as eggs, milk, cheese, and honey).\n While many Jewish and Muslim inmates would find a nu-\ntritionally adequate vegetarian diet that otherwise satisfies\nkosher standards to be fully compatible with their beliefs,\nJones does not. Jones and the other members of his sect within\nIslam believe that the holy Qur’an plainly commands him to\n“eat what is on earth, Lawful and good”—including meat.\nSome Muslim scholars support Jones’s interpretation, and the\nImam employed by the DOC agreed that Jones’s view is “a\nvalid opinion” shared by some other Muslims, though not the\nImam himself. Jones does not take the position that he needs\nto eat meat with every meal, but he believes it must be a reg-\nular part of his diet. After the DOC refused his request for ko-\nsher trays that include meat, he filed this suit.\n Under RLUIPA, the DOC cannot “impose a substantial\nburden on the religious exercise of a person residing in or con-\nfined to an institution … unless the [DOC] demonstrates that\n\n4 No. 17-2836\n\n[it] … (1) is in furtherance of a compelling governmental in-\nterest; and (2) is the least restrictive means of furthering that\ncompelling governmental interest.” 42 U.S.C. § 2000cc-1. Fol-\nlowing a brief trial, the district court held in favor of Jones and\nordered the DOC to give Jones at least eight meals a week that\n“contain kosher or halal meat.” The judge left it up to DOC to\ndecide on the most effective way to do this, but he specified\nthat one permissible response would be to send Jones the ko-\nsher trays the DOC was already providing to inmates at facil-\nities without kosher kitchens. The record indicates that this\nwould not impose any incremental cost on the DOC. The\ncourt found that by requiring Jones to engage in conduct—\nrefraining from all meat—that violates his sincerely held reli-\ngious belief, the DOC had substantially burdened his reli-\ngious exercise and on this record the DOC lacked a compel-\nling government interest to justify that burden.\n On appeal, the DOC does not contest the sincerity of\nJones’s belief or the district court’s finding that the DOC\nlacked a sufficient justification for its treatment of Jones. The\nsole issue the DOC raises is whether the district court erred in\nholding that Jones was substantially burdened by the vege-\ntarian kosher diet when, as the DOC argues, he could have\npurchased the halal meat he needs to supplement his diet at\nthe prison commissary. The DOC characterizes Jones’s lack of\nmeat as the result of “his own spending choices,” not the re-\nsult of any DOC action. It urges us to find that nothing less\nthan the coercive pressure of the choice between violating his\nreligion and facing starvation qualifies as a substantial bur-\nden under RLUIPA.\n For a time, there was some confusion among the circuits\nabout what constitutes a substantial burden under RLUIPA.\n\nNo. 17-2836 5\n\nWe interpreted the language as requiring that the govern-\nment’s action rendered the religious exercise “effectively im-\npracticable.” Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009).\nOther circuits developed different tests. See, e.g., Abdulhaseeb\nv. Calbone, 600 F.3d 1301, 1313 (10th Cir. 2010) (government\nmust require, prohibit, or substantially pressure religiously\nrelevant conduct); Moussazadeh v. Texas Dep't of Criminal Jus-\ntice, 703 F.3d 781, 793 (5th Cir. 2012) (government must influ-\nence an adherent to act or force him to choose between a gen-\nerally available non-trivial benefit and religious beliefs); Patel\nv. U.S. Bureau of Prisons, 515 F.3d 807, 814 (8th Cir. 2008) (gov-\nernment must significantly inhibit, meaningfully curtail, or\ndeny reasonable opportunities for religious exercise). This\nconfusion was largely dispelled, however, in two recent deci-\nsions from the Supreme Court: Holt v. Hobbs, 135 S. Ct. 853\n(2015), and Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751\n(2014). We recognized in Schlemm v. Wall that Holt and Hobby\nLobby “articulate[d] a standard much easier to satisfy” than\nour former search for something rendering the religious exer-\ncise “effectively impracticable.” 784 F.3d 362, 364 (7th Cir.\n2015).\n In Hobby Lobby, a case involving RLUIPA’s sister statute,\nthe Religious Freedom Restoration Act (“RFRA”), 42\nU.S.C. § 2000bb-1, three closely held corporations faced the\nchoice between providing contraceptive coverage for their\nemployees in violation of their religious beliefs or paying a\nsubstantial fine that would enable them to omit the coverage\nto which they objected. The Supreme Court found that this\nchoice was no choice at all: it imposed a substantial burden on\nthe owners’ religious exercise, and the government had not\nshown that it was the least restrictive means of serving the\ngovernment’s (assumed) compelling interest. 134 S. Ct. at\n\n6 No. 17-2836\n\n2759. The Court rejected the suggestion that the corporations\ncould “eliminate[] the substantial burden” and avoid the fine\nby dropping employee health insurance entirely since that\nwould also cause economic harm. Id. at 2776–77. In so ruling,\nthe Court emphasized that Congress explicitly stated that\nRFRA should “be construed in favor of a broad protection of\nreligious exercise, to the maximum extent permitted by the\nterms of this chapter and the Constitution.” Id. at 2762 (quot-\ning § 2000cc-3(g)).\n The next year, in Holt, the Court considered the case of a\nMuslim inmate who wanted to grow a 1/2-inch beard in ac-\ncordance with his religious beliefs. Such a beard, however, of-\nfended the grooming policy of the Arkansas Department of\nCorrections, and so the Department refused to allow him to\ngrow it. When the case arrived at the Supreme Court, the\nCourt read RLUIPA as an “expansive protection for religious\nliberty” and held that the inmate “easily” demonstrated a\nsubstantial burden because he faced “serious disciplinary ac-\ntion” if he violated the grooming policy and grew the beard.\n135 S. Ct. at 860, 862. The Court further rejected attempts to\ncall the burden of shaving “slight” if shaving was not abso-\nlutely prohibited by the inmate’s beliefs, writing that\n“RLUIPA … applies to an exercise of religion regardless of\nwhether it is ‘compelled.’” Id. at 862.\n The burdens on the person asserting religious rights in\nHolt and Hobby Lobby involved large fines and significant dis-\nciplinary consequences. But the Court did not indicate that\npressures of that severity represented the floor for finding a\nsubstantial burden under RFRA or RLUIPA. To the contrary,\nthe Court clarified that RLUIPA’s substantial burden inquiry\nrobustly supports inmate religious practice—it specifically\n\nNo. 17-2836 7\n\ndisapproved of the practice of offsetting against the burden im-\nposed by the rule any other religious accommodations offered\nor the strength of the religious command. These principles\ngovern Jones’s case and indicate that the DOC’s food policy is\nplacing a substantial burden on him.\n The DOC estimates it will cost Jones a few dollars a day\n($14.00 a week) to pay for his own halal meat at the commis-\nsary. While that amount may seem minor in comparison to\nthe multi-million-dollar fine Hobby Lobby faced, it is a large\namount for Jones. He makes, at most, $8.40 per week at his\nprison job. Even though that amount is supplemented by spo-\nradic funds sent from his friends and family, Jones cannot re-\nliably afford to pay for the meat himself. The state is in effect\ndemanding that Jones, uniquely among all inmates, zero out\nhis account and forgo purchasing other items such as hygiene\nproducts or over-the-counter medicine, if he wants to avoid a\ndiet that violates his religious beliefs.\n When the state forces a prisoner to choose between ade-\nquate nutrition and religious practice, it is imposing a sub-\nstantial burden on his religious practice under the rules an-\nnounced in Hobby Lobby and Holt. Thompson v. Holm, 809 F.3d\n376, 380 (7th Cir. 2016) (collecting cases). After these recent\ncases, there can be no doubt that when the state forces a pris-\noner to give away his last dime so that his daily meals will not\nviolate his religious practice, it is imposing a substantial bur-\nden. We therefore have no need here to decide whether a truly\nnegligible or unquestionably affordable fine would similarly\nbe subject to attack under RLUIPA.\n Jones’s case is not near any relevant line. Indeed, even be-\nfore Hobby Lobby and Holt, other circuits found that asking\nprisoners to pay daily for religiously compliant diets was a\n\n8 No. 17-2836\n\nsubstantial burden, especially where an inmate was indigent.\nSee Moussazadeh, 703 F.3d at 793–94 (holding it is a substantial\nburden to require an inmate to pay for a kosher meal because\ndaily meals are a generally available benefit); Love v. Reed, 216\nF.3d 682, 689 (8th Cir. 2000) (rejecting the argument that the\navailability of food for purchase at the commissary alleviated\nthe substantial burden on an indigent inmate); Beerheide v.\nSuthers, 286 F.3d 1179, 1188 (10th Cir. 2002) (calling a 25% co-\npayment program for kosher meals that would require even\nprisoners with financial support from their friends and family\n“to sacrifice nearly all of that income to maintain their reli-\ngious duties” a “Hobson’s choice rather than a true alterna-\ntive”); Abdulhaseeb, 600 F.3d at 1317 (“[A]ny ability to pur-\nchase is chimerical where a plaintiff is indigent….”).\n The dissent suggests that the record before us is insuffi-\ncient to hold that Jones is substantially burdened, and that we\nought to require a showing of indigency or other hardship to\nsatisfy the substantial burden test. To support the suggestion\nthat the court ought to further scrutinize Jones’s ability to pay,\nthe dissent relies on pre-Hobby Lobby cases from our sister cir-\ncuits that required similar findings of indigency for inmates\nrequesting religious accommodations. See infra at 11 (citing\nAbdulhaseeb, 600 F.3d at 1317–18, and Patel, 515 F.3d at 814).\n When the Supreme Court was presented with a far sparser\nrecord supporting the claimed substantial burden in Hobby\nLobby, however, the Court declined to inquire further into the\nquestion of ability to pay, despite criticism in dissent both at\nthe Court and in the Tenth Circuit. Instead, it gave greater\nweight to the religious freedom concerns and implicitly dis-\napproved the ability-to-pay aspect of the earlier opinions\nfrom our sister circuits. Hobby Lobby, 134 S. Ct. at 2775–76\n\nNo. 17-2836 9\n\n(finding the large fines were clearly a substantial burden\nwithout requiring Hobby Lobby to prove its inability to pay\nor whether the fines would be “merely” significant or actually\ncrippling); id at 2798 (Ginsburg, J., dissenting) (criticizing the\nmajority opinion for “barely paus[ing] to inquire whether any\nburden imposed … is substantial”); Hobby Lobby Stores, Inc. v.\nSebelius, 723 F.3d 1114, 1164 (10th Cir. 2013) (Briscoe, J., con-\ncurring in part and dissenting in part) (“At the hearing on\nplaintiffs’ motion for preliminary injunction, plaintiffs pre-\nsented no evidence of any kind. … As a result, we know very\nlittle about any of the important facts of this case” including\nevidence of substantial burden); id. at 1181, 1181 n.4 (10th Cir.\n2013) (Matheson, J., concurring in part and dissenting in part)\n(expressing concern that “plaintiffs have provided almost no\nevidence” including “plaintiffs have failed, for example, to\nprovide the district court with complete information about\nthe financial strain they would bear”). The Supreme Court\nthus consciously chose not to require a demonstration of\nhardship—or detailed findings on finances—before deter-\nmining that the fine at issue triggered protection for Hobby\nLobby’s owners. Hobby Lobby, 134 S. Ct. at 2759. Jones is enti-\ntled to no less. He has testified to his meager sources of in-\ncome, and the state has confirmed that the cost to Jones of\nsubsidizing his own religiously compelled diet would sys-\ntematically outpace his reliable income. That would be\nenough under Hobby Lobby for the Supreme Court, and thus it\nis enough for us.\n DOC’s position also cannot be reconciled with the text of\nRLUIPA. The statute applies to “any exercise of religion,” no\nmatter which faith or specific practice. §2000cc-5(7)(A); see\nHolt, 135 S. Ct. at 860 (citing this language to reaffirm\n\n10 No. 17-2836\n\nRLUIPA’s strength and breadth). Some religious diets pro-\nhibit certain foods; others require complex preparation.\nJones’s diet requires him to consume one additional item of\nfood beyond what he is currently being offered. We find no\nprincipled reason for endorsing DOC’s practice of withhold-\ning a readily available food for Jones—one that it is serving to\nmany other inmates. See Willis, 753 F. Supp. 2d at 772 (requir-\ning the Indiana DOC to provide inmates with kosher diets,\nthough it was substantially more burdensome on the state to\ndo so). See also Moussazadeh, 703 F.3d at 793–94 (emphasizing\nthat the denial of generally available benefits such as a daily\nmeal is always a substantial burden, since such action is akin\nto denying the otherwise available benefits in Sherbert v. Ver-\nner, 374 U.S. 398, 404 (1963), and Thomas v. Review Board of the\nIndiana Employment Security Division, 450 U.S. 707, 717–18\n(1981)).\n The DOC’s final pitch is that it should not have to “subsi-\ndize” or “underwrite” Jones’s religious diet. Perhaps it fears\nescalating costs. It did not, however, appeal the question of\nthe state’s interest. The district court held that on this record,\nDOC did not demonstrate that any such risk exists, and we\nhave no reason to take issue with its conclusion. This is not a\nclass action, and Jones is asking only to receive the same ko-\nsher trays that DOC is already providing to other inmates. If\nenough other inmates come along and express the same reli-\ngiously based need, then the state always has the option of\nadding halal or kosher meat to its new kitchens (if that ap-\npears to be the cost-effective way to handle the issue). But that\nis not our case, and we see no reason to opine on a hypothet-\nical situation. That forbearance is especially appropriate given\nthe fact that Jones’s belief that eating meat is a requirement\n\nNo. 17-2836 11\n\nfor devout Muslims appears to be a minority view within Is-\nlam.\n We AFFIRM the judgment of the district court.\n\n12 No. 17-2836", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368545/", "author_raw": "Diane Pamela Wood"}, {"author": "BRENNAN, Circuit Judge, dissenting", "type": "dissent", "text": "BRENNAN, Circuit Judge, dissenting. To prevail on an\nRLUIPA claim of this sort, an inmate must show his religious\nexercise has been substantially burdened; a lesser burden is\ninsuﬃcient. At issue in this case is whether the financial\nresponsibility placed on inmate Jones to include halal meat in\nhis diet rises to the level of a substantial burden. We do not\nhave enough evidence to make that determination because\nthe district court never reached the issue. Jones’s claim should\nbe remanded for the district court to conduct fact-finding as\nto whether he is indigent or suﬀers other financial hardship,\nand whether his religious exercise was substantially\nburdened.\n Our court addressed RLUIPA’s “substantial burden”\nrequirement in Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015),\nin the wake of Holt v. Hobbs, 135 S.Ct. 853 (2015), and Burwell\nv. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). There we\nnoted that while Holt held that the “substantial burden”\nrequirement was met by a “serious violat[ion] [of] religious\nbeliefs,” what “serious” requires remained undefined.\nSchlemm, 784 F.3d at 364–65 (quoting Holt, 135 S.Ct. at 862, in\nturn quoting Hobby Lobby, 134 S.Ct. at 2775).\n The majority opinion does not grapple with this unre-\nsolved question. Its interpretation of “substantial” eﬀectively\nmeans that any burden on an inmate’s religious diet, no\nmatter how slight, violates RLUIPA. While acknowledging\nthat Holt and Hobby Lobby “involved large fines and signifi-\ncant disciplinary consequences,” the majority opinion states\nthat the “pressures of that severity [do not] represent[] the\nfloor for finding a substantial burden under RFRA or\nRLUIPA.” Million dollar fines and serious prison disciplinary\nactions, as in Hobby Lobby and Holt, might not be the floor for\n\nNo. 17-2836 13\n\na substantial burden. But 42 U.S.C. § 2000cc-1 requires some\nsort of floor. Congress so provided when it incorporated a rel-\native and proportionate term (“substantial”) into the statute.\nThe text of RLUIPA requires courts to assess the severity of\nthe burden placed on an individual inmate, and whether that\nburden rises to the level of “substantial.” Anything less risks\nrendering the statutory term “substantial” superfluous. See\nANTONIN SCALIA & BRYAN A. GARNER, READING LAW 174–79\n(2012) (discussing the surplusage canon). This evaluation\nrequires a full factual record, which we do not have here.\n Other courts have considered two factors to determine\nwhether a burden on an inmate’s diet is “substantial”: the\nreligious meal options available, and the ability of the\nreligious inmate to obtain them. See Abdulhaseeb v. Calbone, 600\nF.3d 1301, 1317–18 (10th Cir. 2010) (“First, any ability to\npurchase is chimerical where a plaintiﬀ is indigent, as is Mr.\nAbdulhaseeb. Second, … [because] no Halal vendors have\nbeen approved by DOC … Mr. Abdulhaseeb could not have\npurchased halal foods even if he had funds.”); see also Patel v.\nU.S. Bureau of Prisons, 515 F.3d 807, 814 (8th Cir. 2008) (“[The\ninmate] only oﬀers his single, vague and unsupported state-\nment about the potential cost, and the record oﬀers no\nevidence regarding Patel’s financial status. … Patel has not\noﬀered suﬃcient evidence to create a genuine issue of mate-\nrial fact … [to show he] has been substantially burdened.”).1\nCompare with Moussazadeh v. Texas Dept. of Criminal Justice,\n\n 1 Whether Patel will survive post-Holt and Hobby Lobby is currently on\n\nappeal in the Eighth Circuit. For that case’s district court opinion, see Mu-\nhammad v. Wheeler, No. 5:15-cv-130-KGB/PSH, 2018 WL 1558279 (E.D. Ark.\nMar. 30, 2018).\n\n14 No. 17-2836\n\n703 F.3d 781, 793–94 (5th Cir. 2012) (holding that denying a\nJewish inmate free kosher meal trays available to all other\nJewish inmates denies the inmate an “‘essential’ benefit given\nto every prisoner”).2 This court should adopt a similar\nstandard.\n The first inquiry can be assessed by examining the halal\n(or kosher, or other religious) options available in a prison’s\ncafeteria or commissary. The parties do not dispute Jones has\nbeen housed in a prison facility with a vegetarian kosher\nkitchen and a commissary stocked with halal meat. Indeed,\nJones purchased halal meat to supplement his vegetarian\nkosher meals. This option is available to all inmates in facili-\nties with kosher kitchens. Rather than requesting a generally\navailable benefit, Jones asks to be given for free what other\ninmates in his prison facility must purchase. Cf. Moussazadeh,\n703 F.3d at 793 (“[D]enial of religiously suﬃcient food where\nit is a generally available benefit would constitute a substan-\ntial burden on the exercise of religion.”). The second inquiry\ncan be resolved by a showing of indigency or other hardship\nfor the particular inmate. For Jones, that remains a genuine\nquestion of fact.\n\n\n\n 2The majority opinion cites Moussazadeh for the proposition that “the\ndenial of generally available benefits such as a daily meal is always a\nsubstantial burden.” But the Fifth Circuit in Moussazadeh was careful to\ndistinguish the facts before it, in which a Jewish inmate was denied free\nkosher cafeteria trays, from those in Patel, where kosher and halal food\nwas freely provided in the cafeteria “and satisfied all other Muslims in the\nprison, [but did not meet the] particularly nuanced version of halal food”\npreferred by the specific inmate. Moussazadeh, 703 F.3d at 794. Here, the\nparties do not dispute that in the DOC cafeteria Jones has access to free,\nnutritionally adequate, vegetarian kosher trays.\n\nNo. 17-2836 15\n\n The majority opinion states that unless the district court is\naﬃrmed, Jones will be forced to “give away his last dime” to\nobtain halal meat. Were that true, the DOC’s policy may very\nwell impose a substantial burden on Jones. But because the\ndistrict court never made any findings of fact on this topic,\nJones’s financial situation—and the severity of the burden\ncommissary purchases place on him—is an unresolved fact\ndispute. The DOC submitted evidence tending to impeach\nJones’s narrative of financial diﬃculty: for example, Jones reg-\nularly purchased halal meat at the prison commissary as re-\ncently as nine months before his deposition in this case. The\nmajority opinion notes Jones makes “at most, $8.40 per week\nat his prison job.” Yet Jones continues to make regular com-\nmissary purchases of up to sixty dollars a month. This implies\nJones has access to funds beyond his prison salary, possibly\ncontributed by friends and family members. The majority\nopinion examines the conflicting testimony and resolves it in\nfavor of Jones. But the district court never addressed this\ngenuine issue of material fact in its opinion, and as a review-\ning court, we are not in a position to do so. Because this\nremains unresolved, the severity of the burden placed on\nJones’s religious exercise by the DOC cannot be assessed as\n“substantial,” or as insubstantial. We just do not know.\n In addition to the claim’s other elements, to recover in this\nlawsuit Jones should be required to show he is indigent and\nunable to acquire halal meat on his own. The district court did\nnot hear the necessary evidence on the expenses of prison life\nand made no finding as to Jones’s financial circumstances.\nBecause halal meat options are readily available within the\n\n16 No. 17-2836\n\nfacility where Jones is housed, remand is warranted for fur-\nther fact-finding on these questions.\n For these reasons, I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368545/", "author_raw": "BRENNAN, Circuit Judge, dissenting"}]}	WOOD	ROVNER	BRENNAN	1	{"WOOD": ", Chief", "ROVNER": ", Cir cuit", "BRENNAN": ", Cir cuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591292/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,396		Roman Lee Jones v. Robert E. Carter	2019-02-15	17-2836	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and ROVNER and BRENNAN, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2836\nROMAN LEE JONES,\n Plaintiff-Appellee,\n v.\n\nROBERT E. CARTER, JR., Commissioner, Indiana Department of\nCorrection,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 16 C 2887 — William T. Lawrence, Judge.\n ____________________\n\n ARGUED SEPTEMBER 7, 2018 — DECIDED FEBRUARY 15, 2019\n ____________________\n\n Before WOOD, Chief Judge, and ROVNER and BRENNAN, Cir-\ncuit Judges.\n WOOD, Chief Judge. While a serving of meat from a prison\nkitchen would not prompt most Americans to run to a federal\ncourthouse, it raises a critical problem for Indiana inmate Ro-\nman Lee Jones. Jones adheres to a sect of Islam that requires\nits members to follow a diet that regularly includes halal\nmeat. It would not cost the state of Indiana a single penny to\n\n2 No. 17-2836\n\nprovide Jones with the diet he has requested. The only ques-\ntion before us in this appeal is whether Indiana’s refusal to\nprovide Jones with meat substantially burdens his exercise of\nreligion under the Religious Land Use and Institutionalized\nPersons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. We hold that it\ndoes.\n Jones observes Islamic dietary restrictions, which forbid\nthe consumption of certain foods and require that others be\nprepared in accordance with Islamic law—that is, his food\nmust be halal. Since there is overlap in halal and Jewish ko-\nsher requirements, some Muslims—including Jones—find\nkosher food to be an acceptable alternative to a purely halal\ndiet. (There are differences, to be sure: followers of a kosher\ndiet may not consume meat and dairy products together,\nwhile followers of halal may do so; alcohol is permissible for\nkosher, but not for halal; and the lists of permissible animals\nand seafoods differ slightly. See Halal vs Kosher, DIFFEN.COM,\nhttps://www.diffen.com/difference/Halal_vs_Kosher (last\nvisited February 14, 2019). Jones does not argue that these dif-\nferences matter for his prison diet.)\n The Indiana Department of Correction (“DOC”) formerly\nprovided pre-packaged kosher meal trays, which included\nkosher meat, to all inmates who requested them. As demand\nfor the kosher trays went up, however, so did the cost, which\nrose to between $40,000 and $60,000 a month on top of the per\ncapita amount the DOC pays its contractor for standard\nmeals. Unhappy with this trend, the DOC stopped offering\nthe kosher trays and put all the affected inmates on a vegan\ndiet (that is, one with no products made or derived from ani-\nmals).\n\nNo. 17-2836 3\n\n That move satisfied no one: a class of inmates seeking ko-\nsher food sued the DOC and prevailed under RLUIPA in Wil-\nlis v. Commissioner, Indiana Department of Correction. 753 F.\nSupp. 2d 768, 772 (S.D. Ind. 2010). Rather than go back to\nproviding everyone with kosher trays, the DOC worked out\na new arrangement with its contractor so that kosher meals\nare now included in the per capita amount it pays the contrac-\ntor. The DOC built kosher kitchens at a few of its facilities and\nmoved as many kosher inmates into those facilities as possi-\nble. Inmates who could not be moved would continue to re-\nceive the kosher trays, but inmates (including Jones) in a fa-\ncility with a kosher kitchen were given only the option of eat-\ning the food prepared there. That food, however, is vegetarian\n(i.e. plant-derived, plus animal products not requiring slaugh-\nter, such as eggs, milk, cheese, and honey).\n While many Jewish and Muslim inmates would find a nu-\ntritionally adequate vegetarian diet that otherwise satisfies\nkosher standards to be fully compatible with their beliefs,\nJones does not. Jones and the other members of his sect within\nIslam believe that the holy Qur’an plainly commands him to\n“eat what is on earth, Lawful and good”—including meat.\nSome Muslim scholars support Jones’s interpretation, and the\nImam employed by the DOC agreed that Jones’s view is “a\nvalid opinion” shared by some other Muslims, though not the\nImam himself. Jones does not take the position that he needs\nto eat meat with every meal, but he believes it must be a reg-\nular part of his diet. After the DOC refused his request for ko-\nsher trays that include meat, he filed this suit.\n Under RLUIPA, the DOC cannot “impose a substantial\nburden on the religious exercise of a person residing in or con-\nfined to an institution … unless the [DOC] demonstrates that\n\n4 No. 17-2836\n\n[it] … (1) is in furtherance of a compelling governmental in-\nterest; and (2) is the least restrictive means of furthering that\ncompelling governmental interest.” 42 U.S.C. § 2000cc-1. Fol-\nlowing a brief trial, the district court held in favor of Jones and\nordered the DOC to give Jones at least eight meals a week that\n“contain kosher or halal meat.” The judge left it up to DOC to\ndecide on the most effective way to do this, but he specified\nthat one permissible response would be to send Jones the ko-\nsher trays the DOC was already providing to inmates at facil-\nities without kosher kitchens. The record indicates that this\nwould not impose any incremental cost on the DOC. The\ncourt found that by requiring Jones to engage in conduct—\nrefraining from all meat—that violates his sincerely held reli-\ngious belief, the DOC had substantially burdened his reli-\ngious exercise and on this record the DOC lacked a compel-\nling government interest to justify that burden.\n On appeal, the DOC does not contest the sincerity of\nJones’s belief or the district court’s finding that the DOC\nlacked a sufficient justification for its treatment of Jones. The\nsole issue the DOC raises is whether the district court erred in\nholding that Jones was substantially burdened by the vege-\ntarian kosher diet when, as the DOC argues, he could have\npurchased the halal meat he needs to supplement his diet at\nthe prison commissary. The DOC characterizes Jones’s lack of\nmeat as the result of “his own spending choices,” not the re-\nsult of any DOC action. It urges us to find that nothing less\nthan the coercive pressure of the choice between violating his\nreligion and facing starvation qualifies as a substantial bur-\nden under RLUIPA.\n For a time, there was some confusion among the circuits\nabout what constitutes a substantial burden under RLUIPA.\n\nNo. 17-2836 5\n\nWe interpreted the language as requiring that the govern-\nment’s action rendered the religious exercise “effectively im-\npracticable.” Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009).\nOther circuits developed different tests. See, e.g., Abdulhaseeb\nv. Calbone, 600 F.3d 1301, 1313 (10th Cir. 2010) (government\nmust require, prohibit, or substantially pressure religiously\nrelevant conduct); Moussazadeh v. Texas Dep't of Criminal Jus-\ntice, 703 F.3d 781, 793 (5th Cir. 2012) (government must influ-\nence an adherent to act or force him to choose between a gen-\nerally available non-trivial benefit and religious beliefs); Patel\nv. U.S. Bureau of Prisons, 515 F.3d 807, 814 (8th Cir. 2008) (gov-\nernment must significantly inhibit, meaningfully curtail, or\ndeny reasonable opportunities for religious exercise). This\nconfusion was largely dispelled, however, in two recent deci-\nsions from the Supreme Court: Holt v. Hobbs, 135 S. Ct. 853\n(2015), and Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751\n(2014). We recognized in Schlemm v. Wall that Holt and Hobby\nLobby “articulate[d] a standard much easier to satisfy” than\nour former search for something rendering the religious exer-\ncise “effectively impracticable.” 784 F.3d 362, 364 (7th Cir.\n2015).\n In Hobby Lobby, a case involving RLUIPA’s sister statute,\nthe Religious Freedom Restoration Act (“RFRA”), 42\nU.S.C. § 2000bb-1, three closely held corporations faced the\nchoice between providing contraceptive coverage for their\nemployees in violation of their religious beliefs or paying a\nsubstantial fine that would enable them to omit the coverage\nto which they objected. The Supreme Court found that this\nchoice was no choice at all: it imposed a substantial burden on\nthe owners’ religious exercise, and the government had not\nshown that it was the least restrictive means of serving the\ngovernment’s (assumed) compelling interest. 134 S. Ct. at\n\n6 No. 17-2836\n\n2759. The Court rejected the suggestion that the corporations\ncould “eliminate[] the substantial burden” and avoid the fine\nby dropping employee health insurance entirely since that\nwould also cause economic harm. Id. at 2776–77. In so ruling,\nthe Court emphasized that Congress explicitly stated that\nRFRA should “be construed in favor of a broad protection of\nreligious exercise, to the maximum extent permitted by the\nterms of this chapter and the Constitution.” Id. at 2762 (quot-\ning § 2000cc-3(g)).\n The next year, in Holt, the Court considered the case of a\nMuslim inmate who wanted to grow a 1/2-inch beard in ac-\ncordance with his religious beliefs. Such a beard, however, of-\nfended the grooming policy of the Arkansas Department of\nCorrections, and so the Department refused to allow him to\ngrow it. When the case arrived at the Supreme Court, the\nCourt read RLUIPA as an “expansive protection for religious\nliberty” and held that the inmate “easily” demonstrated a\nsubstantial burden because he faced “serious disciplinary ac-\ntion” if he violated the grooming policy and grew the beard.\n135 S. Ct. at 860, 862. The Court further rejected attempts to\ncall the burden of shaving “slight” if shaving was not abso-\nlutely prohibited by the inmate’s beliefs, writing that\n“RLUIPA … applies to an exercise of religion regardless of\nwhether it is ‘compelled.’” Id. at 862.\n The burdens on the person asserting religious rights in\nHolt and Hobby Lobby involved large fines and significant dis-\nciplinary consequences. But the Court did not indicate that\npressures of that severity represented the floor for finding a\nsubstantial burden under RFRA or RLUIPA. To the contrary,\nthe Court clarified that RLUIPA’s substantial burden inquiry\nrobustly supports inmate religious practice—it specifically\n\nNo. 17-2836 7\n\ndisapproved of the practice of offsetting against the burden im-\nposed by the rule any other religious accommodations offered\nor the strength of the religious command. These principles\ngovern Jones’s case and indicate that the DOC’s food policy is\nplacing a substantial burden on him.\n The DOC estimates it will cost Jones a few dollars a day\n($14.00 a week) to pay for his own halal meat at the commis-\nsary. While that amount may seem minor in comparison to\nthe multi-million-dollar fine Hobby Lobby faced, it is a large\namount for Jones. He makes, at most, $8.40 per week at his\nprison job. Even though that amount is supplemented by spo-\nradic funds sent from his friends and family, Jones cannot re-\nliably afford to pay for the meat himself. The state is in effect\ndemanding that Jones, uniquely among all inmates, zero out\nhis account and forgo purchasing other items such as hygiene\nproducts or over-the-counter medicine, if he wants to avoid a\ndiet that violates his religious beliefs.\n When the state forces a prisoner to choose between ade-\nquate nutrition and religious practice, it is imposing a sub-\nstantial burden on his religious practice under the rules an-\nnounced in Hobby Lobby and Holt. Thompson v. Holm, 809 F.3d\n376, 380 (7th Cir. 2016) (collecting cases). After these recent\ncases, there can be no doubt that when the state forces a pris-\noner to give away his last dime so that his daily meals will not\nviolate his religious practice, it is imposing a substantial bur-\nden. We therefore have no need here to decide whether a truly\nnegligible or unquestionably affordable fine would similarly\nbe subject to attack under RLUIPA.\n Jones’s case is not near any relevant line. Indeed, even be-\nfore Hobby Lobby and Holt, other circuits found that asking\nprisoners to pay daily for religiously compliant diets was a\n\n8 No. 17-2836\n\nsubstantial burden, especially where an inmate was indigent.\nSee Moussazadeh, 703 F.3d at 793–94 (holding it is a substantial\nburden to require an inmate to pay for a kosher meal because\ndaily meals are a generally available benefit); Love v. Reed, 216\nF.3d 682, 689 (8th Cir. 2000) (rejecting the argument that the\navailability of food for purchase at the commissary alleviated\nthe substantial burden on an indigent inmate); Beerheide v.\nSuthers, 286 F.3d 1179, 1188 (10th Cir. 2002) (calling a 25% co-\npayment program for kosher meals that would require even\nprisoners with financial support from their friends and family\n“to sacrifice nearly all of that income to maintain their reli-\ngious duties” a “Hobson’s choice rather than a true alterna-\ntive”); Abdulhaseeb, 600 F.3d at 1317 (“[A]ny ability to pur-\nchase is chimerical where a plaintiff is indigent….”).\n The dissent suggests that the record before us is insuffi-\ncient to hold that Jones is substantially burdened, and that we\nought to require a showing of indigency or other hardship to\nsatisfy the substantial burden test. To support the suggestion\nthat the court ought to further scrutinize Jones’s ability to pay,\nthe dissent relies on pre-Hobby Lobby cases from our sister cir-\ncuits that required similar findings of indigency for inmates\nrequesting religious accommodations. See infra at 11 (citing\nAbdulhaseeb, 600 F.3d at 1317–18, and Patel, 515 F.3d at 814).\n When the Supreme Court was presented with a far sparser\nrecord supporting the claimed substantial burden in Hobby\nLobby, however, the Court declined to inquire further into the\nquestion of ability to pay, despite criticism in dissent both at\nthe Court and in the Tenth Circuit. Instead, it gave greater\nweight to the religious freedom concerns and implicitly dis-\napproved the ability-to-pay aspect of the earlier opinions\nfrom our sister circuits. Hobby Lobby, 134 S. Ct. at 2775–76\n\nNo. 17-2836 9\n\n(finding the large fines were clearly a substantial burden\nwithout requiring Hobby Lobby to prove its inability to pay\nor whether the fines would be “merely” significant or actually\ncrippling); id at 2798 (Ginsburg, J., dissenting) (criticizing the\nmajority opinion for “barely paus[ing] to inquire whether any\nburden imposed … is substantial”); Hobby Lobby Stores, Inc. v.\nSebelius, 723 F.3d 1114, 1164 (10th Cir. 2013) (Briscoe, J., con-\ncurring in part and dissenting in part) (“At the hearing on\nplaintiffs’ motion for preliminary injunction, plaintiffs pre-\nsented no evidence of any kind. … As a result, we know very\nlittle about any of the important facts of this case” including\nevidence of substantial burden); id. at 1181, 1181 n.4 (10th Cir.\n2013) (Matheson, J., concurring in part and dissenting in part)\n(expressing concern that “plaintiffs have provided almost no\nevidence” including “plaintiffs have failed, for example, to\nprovide the district court with complete information about\nthe financial strain they would bear”). The Supreme Court\nthus consciously chose not to require a demonstration of\nhardship—or detailed findings on finances—before deter-\nmining that the fine at issue triggered protection for Hobby\nLobby’s owners. Hobby Lobby, 134 S. Ct. at 2759. Jones is enti-\ntled to no less. He has testified to his meager sources of in-\ncome, and the state has confirmed that the cost to Jones of\nsubsidizing his own religiously compelled diet would sys-\ntematically outpace his reliable income. That would be\nenough under Hobby Lobby for the Supreme Court, and thus it\nis enough for us.\n DOC’s position also cannot be reconciled with the text of\nRLUIPA. The statute applies to “any exercise of religion,” no\nmatter which faith or specific practice. §2000cc-5(7)(A); see\nHolt, 135 S. Ct. at 860 (citing this language to reaffirm\n\n10 No. 17-2836\n\nRLUIPA’s strength and breadth). Some religious diets pro-\nhibit certain foods; others require complex preparation.\nJones’s diet requires him to consume one additional item of\nfood beyond what he is currently being offered. We find no\nprincipled reason for endorsing DOC’s practice of withhold-\ning a readily available food for Jones—one that it is serving to\nmany other inmates. See Willis, 753 F. Supp. 2d at 772 (requir-\ning the Indiana DOC to provide inmates with kosher diets,\nthough it was substantially more burdensome on the state to\ndo so). See also Moussazadeh, 703 F.3d at 793–94 (emphasizing\nthat the denial of generally available benefits such as a daily\nmeal is always a substantial burden, since such action is akin\nto denying the otherwise available benefits in Sherbert v. Ver-\nner, 374 U.S. 398, 404 (1963), and Thomas v. Review Board of the\nIndiana Employment Security Division, 450 U.S. 707, 717–18\n(1981)).\n The DOC’s final pitch is that it should not have to “subsi-\ndize” or “underwrite” Jones’s religious diet. Perhaps it fears\nescalating costs. It did not, however, appeal the question of\nthe state’s interest. The district court held that on this record,\nDOC did not demonstrate that any such risk exists, and we\nhave no reason to take issue with its conclusion. This is not a\nclass action, and Jones is asking only to receive the same ko-\nsher trays that DOC is already providing to other inmates. If\nenough other inmates come along and express the same reli-\ngiously based need, then the state always has the option of\nadding halal or kosher meat to its new kitchens (if that ap-\npears to be the cost-effective way to handle the issue). But that\nis not our case, and we see no reason to opine on a hypothet-\nical situation. That forbearance is especially appropriate given\nthe fact that Jones’s belief that eating meat is a requirement\n\nNo. 17-2836 11\n\nfor devout Muslims appears to be a minority view within Is-\nlam.\n We AFFIRM the judgment of the district court.\n\n12 No. 17-2836", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368649/", "author_raw": "Diane Pamela Wood"}, {"author": "BRENNAN, Circuit Judge, dissenting", "type": "dissent", "text": "BRENNAN, Circuit Judge, dissenting. To prevail on an\nRLUIPA claim of this sort, an inmate must show his religious\nexercise has been substantially burdened; a lesser burden is\ninsuﬃcient. At issue in this case is whether the financial\nresponsibility placed on inmate Jones to include halal meat in\nhis diet rises to the level of a substantial burden. We do not\nhave enough evidence to make that determination because\nthe district court never reached the issue. Jones’s claim should\nbe remanded for the district court to conduct fact-finding as\nto whether he is indigent or suﬀers other financial hardship,\nand whether his religious exercise was substantially\nburdened.\n Our court addressed RLUIPA’s “substantial burden”\nrequirement in Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015),\nin the wake of Holt v. Hobbs, 135 S.Ct. 853 (2015), and Burwell\nv. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). There we\nnoted that while Holt held that the “substantial burden”\nrequirement was met by a “serious violat[ion] [of] religious\nbeliefs,” what “serious” requires remained undefined.\nSchlemm, 784 F.3d at 364–65 (quoting Holt, 135 S.Ct. at 862, in\nturn quoting Hobby Lobby, 134 S.Ct. at 2775).\n The majority opinion does not grapple with this unre-\nsolved question. Its interpretation of “substantial” eﬀectively\nmeans that any burden on an inmate’s religious diet, no\nmatter how slight, violates RLUIPA. While acknowledging\nthat Holt and Hobby Lobby “involved large fines and signifi-\ncant disciplinary consequences,” the majority opinion states\nthat the “pressures of that severity [do not] represent[] the\nfloor for finding a substantial burden under RFRA or\nRLUIPA.” Million dollar fines and serious prison disciplinary\nactions, as in Hobby Lobby and Holt, might not be the floor for\n\nNo. 17-2836 13\n\na substantial burden. But 42 U.S.C. § 2000cc-1 requires some\nsort of floor. Congress so provided when it incorporated a rel-\native and proportionate term (“substantial”) into the statute.\nThe text of RLUIPA requires courts to assess the severity of\nthe burden placed on an individual inmate, and whether that\nburden rises to the level of “substantial.” Anything less risks\nrendering the statutory term “substantial” superfluous. See\nANTONIN SCALIA & BRYAN A. GARNER, READING LAW 174–79\n(2012) (discussing the surplusage canon). This evaluation\nrequires a full factual record, which we do not have here.\n Other courts have considered two factors to determine\nwhether a burden on an inmate’s diet is “substantial”: the\nreligious meal options available, and the ability of the\nreligious inmate to obtain them. See Abdulhaseeb v. Calbone, 600\nF.3d 1301, 1317–18 (10th Cir. 2010) (“First, any ability to\npurchase is chimerical where a plaintiﬀ is indigent, as is Mr.\nAbdulhaseeb. Second, … [because] no Halal vendors have\nbeen approved by DOC … Mr. Abdulhaseeb could not have\npurchased halal foods even if he had funds.”); see also Patel v.\nU.S. Bureau of Prisons, 515 F.3d 807, 814 (8th Cir. 2008) (“[The\ninmate] only oﬀers his single, vague and unsupported state-\nment about the potential cost, and the record oﬀers no\nevidence regarding Patel’s financial status. … Patel has not\noﬀered suﬃcient evidence to create a genuine issue of mate-\nrial fact … [to show he] has been substantially burdened.”).1\nCompare with Moussazadeh v. Texas Dept. of Criminal Justice,\n\n 1 Whether Patel will survive post-Holt and Hobby Lobby is currently on\n\nappeal in the Eighth Circuit. For that case’s district court opinion, see Mu-\nhammad v. Wheeler, No. 5:15-cv-130-KGB/PSH, 2018 WL 1558279 (E.D. Ark.\nMar. 30, 2018).\n\n14 No. 17-2836\n\n703 F.3d 781, 793–94 (5th Cir. 2012) (holding that denying a\nJewish inmate free kosher meal trays available to all other\nJewish inmates denies the inmate an “‘essential’ benefit given\nto every prisoner”).2 This court should adopt a similar\nstandard.\n The first inquiry can be assessed by examining the halal\n(or kosher, or other religious) options available in a prison’s\ncafeteria or commissary. The parties do not dispute Jones has\nbeen housed in a prison facility with a vegetarian kosher\nkitchen and a commissary stocked with halal meat. Indeed,\nJones purchased halal meat to supplement his vegetarian\nkosher meals. This option is available to all inmates in facili-\nties with kosher kitchens. Rather than requesting a generally\navailable benefit, Jones asks to be given for free what other\ninmates in his prison facility must purchase. Cf. Moussazadeh,\n703 F.3d at 793 (“[D]enial of religiously suﬃcient food where\nit is a generally available benefit would constitute a substan-\ntial burden on the exercise of religion.”). The second inquiry\ncan be resolved by a showing of indigency or other hardship\nfor the particular inmate. For Jones, that remains a genuine\nquestion of fact.\n\n\n\n 2The majority opinion cites Moussazadeh for the proposition that “the\ndenial of generally available benefits such as a daily meal is always a\nsubstantial burden.” But the Fifth Circuit in Moussazadeh was careful to\ndistinguish the facts before it, in which a Jewish inmate was denied free\nkosher cafeteria trays, from those in Patel, where kosher and halal food\nwas freely provided in the cafeteria “and satisfied all other Muslims in the\nprison, [but did not meet the] particularly nuanced version of halal food”\npreferred by the specific inmate. Moussazadeh, 703 F.3d at 794. Here, the\nparties do not dispute that in the DOC cafeteria Jones has access to free,\nnutritionally adequate, vegetarian kosher trays.\n\nNo. 17-2836 15\n\n The majority opinion states that unless the district court is\naﬃrmed, Jones will be forced to “give away his last dime” to\nobtain halal meat. Were that true, the DOC’s policy may very\nwell impose a substantial burden on Jones. But because the\ndistrict court never made any findings of fact on this topic,\nJones’s financial situation—and the severity of the burden\ncommissary purchases place on him—is an unresolved fact\ndispute. The DOC submitted evidence tending to impeach\nJones’s narrative of financial diﬃculty: for example, Jones reg-\nularly purchased halal meat at the prison commissary as re-\ncently as nine months before his deposition in this case. The\nmajority opinion notes Jones makes “at most, $8.40 per week\nat his prison job.” Yet Jones continues to make regular com-\nmissary purchases of up to sixty dollars a month. This implies\nJones has access to funds beyond his prison salary, possibly\ncontributed by friends and family members. The majority\nopinion examines the conflicting testimony and resolves it in\nfavor of Jones. But the district court never addressed this\ngenuine issue of material fact in its opinion, and as a review-\ning court, we are not in a position to do so. Because this\nremains unresolved, the severity of the burden placed on\nJones’s religious exercise by the DOC cannot be assessed as\n“substantial,” or as insubstantial. We just do not know.\n In addition to the claim’s other elements, to recover in this\nlawsuit Jones should be required to show he is indigent and\nunable to acquire halal meat on his own. The district court did\nnot hear the necessary evidence on the expenses of prison life\nand made no finding as to Jones’s financial circumstances.\nBecause halal meat options are readily available within the\n\n16 No. 17-2836\n\nfacility where Jones is housed, remand is warranted for fur-\nther fact-finding on these questions.\n For these reasons, I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368649/", "author_raw": "BRENNAN, Circuit Judge, dissenting"}]}	WOOD	ROVNER	BRENNAN	1	{"WOOD": ", Chief", "ROVNER": ", Cir cuit", "BRENNAN": ", Cir cuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591396/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,910	Anthony WALKER, Plaintiff-Appellant, v. INGERSOLL CUTTING TOOL COMPANY, Defendant-Appellee.	Anthony Walker v. Ingersoll Cutting Tool Company	2019-02-20	18-2673	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Kanne, Hamilton", "parties": "", "opinions": [{"author": "Michael Stephen Kanne", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2673\nANTHONY WALKER,\n Plaintiff-Appellant,\n v.\n\nINGERSOLL CUTTING TOOL COMPANY,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Western Division\n No. 16 C 50040 — Frederick J. Kapala, Judge.\n ____________________\n\n ARGUED JANUARY 15, 2019 — DECIDED FEBRUARY 20, 2019\n ____________________\n\n Before FLAUM, KANNE, and HAMILTON, Circuit Judges.\n KANNE, Circuit Judge. After Anthony Walker was involved\nin a physical altercation with another employee of Ingersoll\nCutting Tools, the company discharged him. He sued Inger-\nsoll, alleging racial discrimination under Title VII and retalia-\ntory discharge under Illinois law. The district court granted\nsummary judgment for Ingersoll on all claims. On appeal,\nWalker abandoned his Title VII racial discrimination claims.\nBecause Walker did not identify evidence of a causal\n\f2 No. 18-2673\n\nconnection between his termination and conduct protected by\nIllinois law, we aﬃrm the district court’s grant of summary\njudgment.\n I. BACKGROUND\n Anthony Walker has worked as a machinist at Ingersoll\nCutting Tools since October 2008. Ingersoll asserts that\nWalker has a history of conflict with coworkers. That appears\nto be largely undisputed by Walker, but the facts relevant for\nthe present appeal involve an incident on October 21, 2014.\nOn that day, Walker was listening and dancing to music while\nworking at his machine. Another coworker, Todd Raﬀerty,\ntold Walker to mute the radio. The parties dispute the severity\nof the confrontation. Walker alleges that he was physically as-\nsaulted—by which he means he was bumped—and threat-\nened with additional violence. Ingersoll questions whether\nphysical contact or threats of violence occurred. But everyone\nacknowledges that Raﬀerty yelled at Walker to turn the music\noﬀ, and then the two men engaged in a shouting match.\n The unit supervisor, Daniel Thompson, separated the two\nmen, calmed them down, and questioned them. Afterwards,\nWalker returned to work and Raﬀerty went home for the day.\nThe two men worked without incident on October 22. On Oc-\ntober 23, Walker met with Thompson and another supervisor\nto discuss the incident. Walker asked Thompson to discipline\nRaﬀerty (perhaps by a mandatory leave of absence). It is un-\nclear whether Thompson directly refused to do so. But Walker\nwas frustrated with the inaction by Ingersoll. Walker told\nThompson that he no longer trusted or respected him because\nhe had not disciplined Raﬀerty for the assault (and because of\nWalker’s perception that Thompson inadequately responded\n\fNo. 18-2673 3\n\nto workplace disputes in the past). Walker also suggested that\nthe conflict with Raﬀerty was aﬀecting his physical wellbeing.\n The supervisors suspended Walker with pay while the\ncompany determined how to proceed. Accordingly, October\n23, 2014, was Walker’s last day of work at Ingersoll.\n On October 26, 2014, Thompson told his supervisor, Scott\nTilton, that “I don’t see now how [Walker] can remain part of\n[the unit] any longer.” Thompson cited Walker’s admitted\ndislike towards his coworkers and his disrespect towards his\nsupervisor. Thompson and Tilton met on October 27 and de-\ncided to terminate Walker’s employment. They informed\nIngersoll’s human resources manager by email the same day.\nShe confirmed receipt of the email on October 28 and began\nthe termination process.\n On October 29—one day after Ingersoll had concluded\nthat Walker would be fired—Walker’s attorney informed the\ncompany that he intended to sue for discrimination and retal-\niation unless Ingersoll brought him back to work. The same\nday, Walker reported the alleged physical assault by Raﬀerty\nto the local police department. The local prosecutor ultimately\ndeclined to bring charges. Ingersoll formally terminated\nWalker’s employment on November 18, 2014.\n II. ANALYSIS\n During oral argument, Walker withdrew his Title VII\nclaims of discrimination and retaliation. He did not expressly\nwithdraw his claim of Illinois Worker’s Compensation Act re-\ntaliation. But Walker did not mention that claim during oral\nargument or in his opening brief (Walker declined to file a re-\nply brief). Thus, Walker waived any challenge to the district\ncourt’s judgment on that claim. Puﬀer v. Allstate Ins. Co., 675\n\f4 No. 18-2673\n\nF.3d 709, 718 (7th Cir. 2012). The sole remaining issue, then, is\nwhether the district court properly granted summary judg-\nment on Walker’s claim that Ingersoll fired him for reporting\na crime. We review the district court’s summary judgment de-\ncision de novo and draw all reasonable inferences in Walker’s\nfavor. Burritt v. Ditlefsen, 807 F.3d 239, 248 (7th Cir. 2015).\n Walker first argues that, upon granting judgment on his\nfederal claims, the district court should have relinquished ju-\nrisdiction over his state law claims. That argument rests on a\nmisapprehension of how federal supplemental jurisdiction\nworks. If a district court possesses original jurisdiction over\none claim, 28 U.S.C. § 1367(a) permits that court to also exer-\ncise supplemental jurisdiction over any claim that is “so re-\nlated to claims in the action within such original jurisdiction\nthat they form part of the same case or controversy.” If the\ndistrict court dismisses the federal claims on any basis other\nthan for lack of jurisdiction, the court has discretion regarding\nwhether to maintain supplemental jurisdiction over the state\nlaw claims. Hansen v. Bd. of Tr. of Hamilton Se. Sch. Corp., 551\nF.3d 599, 607 (7th Cir. 2008). Here, the district court did not\ndismiss the federal claims for lack of jurisdiction. And there\nwas no abuse of discretion in the district court’s decision to\nresolve the state law retaliation claims on the merits.\n We turn now to those merits. Under Illinois law, a plaintiﬀ\nmay sue for retaliatory discharge if “(1) the employer dis-\ncharged the employee, (2) in retaliation for the employeeʹs ac-\ntivities, and (3) that the discharge violates a clear mandate of\npublic policy.” Turner v. Mem’l Med. Ctr., 911 N.E.2d 369, 374\n(Ill. 2009).\n Walker’s claim fails on the second element. “The require-\nment that the discharge be in retaliation for plaintiﬀʹs\n\fNo. 18-2673 5\n\nactivities requires that a plaintiﬀ establish a causal relation-\nship between the employee’s activities and the discharge.”\nMichael v. Precision All. Grp., LLC, 2014 IL 117376, ¶ 31. And,\nto prove causality, the plaintiﬀ must show “more than a se-\nquential connection.” Roger v. Yellow Freight Sys., Inc., 21 F.3d\n146, 149 (7th Cir. 1994). Rather, the plaintiﬀ has the burden of\n“aﬃrmatively show[ing] that the discharge was primarily in\nretaliation for his exercise of a protected right.” Id.\n Ingersoll made the decision to discharge Walker on Octo-\nber 27; Walker filed his police report on October 29. He makes\nno attempt to undermine or question the company’s evidence\nregarding when it decided to terminate his employment.\nWalker thus cannot show even a sequential connection be-\ntween reporting the alleged crime and his discharge.\n Undeterred, Walker argues that the protected conduct was\nhis reporting of the incident to Ingersoll, not his police report.\nWalker cites no authority to support his assertion that Illinois\nhas articulated a clear public policy mandate against firing an\nemployee who was involved in a workplace dispute. It would\nbe diﬃcult to square such a conclusion with the “general rule\nthat an ‘at-will’ employment is terminable at any time for any\nor no cause.” Palmateer v. Int’l Harvester Co., 421 N.E.2d 876,\n878 (Ill. 1981). It’s true that Walker now emphasizes that the\ndispute involved a “bump.” But he does not identify any evi-\ndence which suggests that his complaints to Ingersoll focused\non the physical contact specifically or alleged that a crime oc-\ncurred. And, regardless, Walker hasn’t pointed us to support\nfor the idea that Illinois has established a clear public policy\nagainst firing an employee who was bumped during a shout-\ning match with a coworker. We are deeply skeptical.\n\f6 No. 18-2673\n\n Even assuming that Walker has identified protected con-\nduct, this alternative theory still fails to satisfy the causality\nelement. There is a sequential connection between the alterca-\ntion and Walker’s discharge. But Walker has not provided ev-\nidence aﬃrmatively showing that Ingersoll fired him because\nhe accused Raﬀerty of assault. The company asserts that it\nfired Walker because of his history of workplace conflict and\nhis stated distrust and disrespect for his coworkers and su-\npervisor. When a worker is fired for “impugn[ing] the com-\npany’s integrity,” the discharge does not violate public policy.\nPalmateer, 421 N.E.2d at 879 (citing Abrisz v. Pulley Freight\nLines, Inc., 270 N.W.2d 454, 456 (Iowa 1978)). Walker falls short\nof identifying a material issue of fact on the causality element\nof his state law retaliation claim. The district court properly\ngranted judgment for Ingersoll.\n III. CONCLUSION\n Walker waived his challenge to the district court’s judg-\nment on his Title VII and Illinois Worker’s Compensation Act\nclaims. Regarding the remaining claim, Walker simply failed\nto support his allegation that he was fired for reporting a\ncrime.\nAFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369163/", "author_raw": "Michael Stephen Kanne"}]}	FLAUM	KANNE	HAMILTON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591910/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,011	Danny R. RUARK, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.	Danny Ruark v. Union Pacific Railroad Compan	2019-02-20	17-2429	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Rovner, Scudder", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2429\nDANNY R. RUARK,\n Plaintiff-Appellant,\n v.\n\nUNION PACIFIC RAILROAD COMPANY,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Illinois.\n No. 3:14-cv-00329-DRH-RJD — David R. Herndon, Judge.\n ____________________\n\n ARGUED DECEMBER 5, 2018 — DECIDED FEBRUARY 20, 2019\n ____________________\n\n Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.\n ROVNER, Circuit Judge. The Federal Employers Liability\nAct (FELA), 45 U.S.C. §§ 51-60, was enacted more than a hun-\ndred years ago to compensate railroad employees for injuries\nthey receive on the job. Ruark was an employee of the Union\nPacific Railroad when a hydraulic rail drill malfunctioned and\nsprayed him with hot oil. He sought relief under FELA using\nthe legal doctrine of “res ipsa loquitur,” a doctrine that asks a\nfinder of fact to infer liability when (as the Latin is often\n\f2 No. 17-2429\n\ntranslated) “the thing speaks for itself.” Because of the bur-\nden-shifting nature of the doctrine, it requires some baseline\nconditions—namely that the defendant was in control of the\ninstrumentality that caused the injury and that the plaintiff\nwas not also negligent. The district court found that these con-\nditions were not met and thus the jury should not be in-\nstructed that they could assume that “the matter spoke for it-\nself” under the doctrine. We agree and find that the district\ncourt did not abuse its discretion by refusing to grant Ruark a\ncontinuance before trial. We affirm on both points.\n I.\n On September 22, 2013, Ruark was working as a machine\noperator on rail maintenance on the Union Pacific Railroad\nusing a hydraulic rail drill to drill holes into the rails. To use\nthe drill, the operator clamps it in place on the rail and then\nuses a lever to start the drill. When the drill is finished, the\noperator pushes the lever back to stop the drill and retract the\nbit, and then unclamps it from the rail. The drill is powered\nby hydraulics which requires that it connect to machinery by\nhoses carrying fluid. Ruark began working at six o’clock in\nthe morning and was involved in hooking the drill up to the\nhydraulic lines before the work began. He used the drill\nthroughout the day, attaching it to the rail, pushing the lever\nto start the drilling, pushing the lever to stop the drill and re-\ntract it, and then detaching it from the rail. Ruark used the\nmachine to drill five or six holes that day, including the last\none, and had not noticed any leaking hydraulic fluid or other\nmalfunction. As he drilled the last hole, Ruark reached down\nto retract the drill bit out of the hole and turn the drill off when\n\fNo. 17-2429 3\n\nhe heard a “boom.” 1 Hot fluid sprayed over him, including\nin his eyes. Ruark jerked upward, twisted, and stumbled\nbackward. After Ruark informed his supervisor that the drill\nhad exploded, the supervisor gave him napkins to wipe off\nthe oil and Ruark declined further medical attention. The su-\npervisor sent him home to clean up and told him to return to\nwork the next day and report how he was feeling. Ruark re-\nturned to work the following day, but did not participate in\nmuch of the work, because, as he stated at his deposition, “it\nhurt too bad.” Ruark’s Short App. at 88. Ruark went home\nthat evening and made an appointment to see his regular\nnurse practitioner the next day. The form he completed at her\noffice stated that he was experiencing “sinus and stomach\nproblems.” Ruark’s Short App. at 125. Ruark did not return to\nwork after September 23 and was pulled out of service a few\ndays later because he had been convicted of a felony unre-\nlated to the workplace accident. On October 2, Ruark com-\npleted an accident report form based on the September 22 in-\ncident. On March 13, 2014, Ruark filed suit under FELA claim-\ning injuries from the incident with the rail drill.\n Ruark began a prison sentence a short while later (on June\n28, 2016), a fact we note because it interrupted Ruark’s repre-\nsentation and trial preparation. Two months into Ruark’s in-\ncarceration (the end of August, 2016), his first set of lawyers\nmoved to withdraw, asserting that it was impossible to\n\n1 Because this is an appeal from a grant of judgment as a matter of law\npursuant to Fed. R. Civ. P. 50(a)(1), we note the facts in the light most fa-\nvorable to the party against whom judgment has been entered—in this\ncase, Ruark. Equal Employment Opportunity Comm'n v. Costco Wholesale\nCorp., 903 F.3d 618, 621 (7th Cir. 2018).\n\f4 No. 17-2429\n\nrepresent him in this tort matter while he was incarcerated.\nHis new counsel took over a few months later (early Decem-\nber, 2016) and the district court scheduled a pretrial confer-\nence for the end of February. At that conference, the judge de-\nnied a pending motion for a continuance, reasoning that the\ncase had been pending for almost three years, Ruark had been\nwell represented by his initial counsel, he had been given a\nnormal scheduling order, and the fact of his incarceration was\nnot cause to reopen exhausted deadlines and allow Ruark to\nbegin the discovery process anew. Despite the denial, the dis-\ntrict court judge did permit some planned discovery to con-\ntinue. He allowed Ruark’s counsel to take his client’s trial tes-\ntimony by video deposition and to depose Ruark’s treating\nphysician. He also stated that he would consider a new mo-\ntion to reopen discovery once a trial date was set and the new\ncounsel became more familiar with the case. Ruark’s lawyer,\nhowever, did not pursue that option. The trial began on June\n13, 2017. Ruark proceeded on a theory of negligence based on\nres ipsa loquitur. Once the district court determined that the\nplaintiff had not met the requirements for use of the doctrine,\nit granted Union Pacific’s motion for judgment as a matter of\nlaw, on June 14, 2017, a ruling which we review de novo. Mar-\ntin v. Milwaukee Cty., 904 F.3d 544, 550 (7th Cir. 2018). Judg-\nment as a matter of law is proper if “a reasonable jury would\nnot have a legally sufficient evidentiary basis to find for the\nparty on that issue.” Id. (quoting Fed. R. Civ. P. 50(a)(1)). We\nreview the district court’s decision to deny the motions for a\ncontinuance and to reopen discovery for an abuse of discre-\ntion.\n\fNo. 17-2429 5\n\n II.\n A. Judgment as a matter of law on the FELA claim.\n This case involves an interplay between FELA and the\ndoctrine of res ipsa loquitur. While FELA provides the cause\nof action under federal statute for injuries received while in\nthe employ of the railroad, the plaintiff here, Ruark, went\nabout hoping to prove that liability by using the doctrine of\nres ipsa loquitur. Res ipsa loquitur describes not a substantive\nclaim, but a manner of proceeding on that claim. As we will\ndescribe in more detail below, it is “a shortcut to a negligence\nclaim.” Blasius v. Angel Auto., Inc., 839 F.3d 639, 649 (7th Cir.\n2016) (citing Maroules v. Jumbo, Inc., 452 F.3d 639, 642 (7th Cir.\n2006)). Thus whether Ruark could proceed below depended\non whether he had met the prerequisites for a res ipsa claim.\nIn short, FELA provides the substantive framework for\nRuark’s claim but the evidentiary theory under which he\nopted to proceed is that rail drills do not, in the ordinary\ncourse of events, spray oil on their users. As we will discuss,\nthe cost of admission to this plaintiff-friendly, burden-shifting\ndoctrine requires a plaintiff to make some significant prelim-\ninary showings.\n As for FELA, it may be true, as Ruark argues, that FELA\nrequires a lower threshold for submitting matters to the jury.\nFELA is a remedial statute, lowering the burden of proof so\nthat an employee might meet it if “employer negligence\nplayed any part, even the slightest, in producing the injury.”\nRogers v. Missouri Pac. R.R., 352 U.S. 500, 506 (1957); Brown v.\nBurlington N. Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014).\n\f6 No. 17-2429\n\n This lowered threshold, however, does not mean that an\nemployer is responsible for any injury that occurs in the\ncourse of employment. As the Supreme Court explained:\n That FELA is to be liberally construed, however,\n does not mean that it is a workers’ compensa-\n tion statute. We have insisted that FELA does\n not make the employer the insurer of the safety\n of his employees while they are on duty. The ba-\n sis of his liability is his negligence, not the fact\n that injuries occur.\nConsol. Rail Corp. v. Gottshall, 512 U.S. 532, 543–44, 114 S. Ct.\n2396, 2404 (1994) (internal citations omitted).\n Ruark, therefore, is correct that a FELA case should go to\na jury if even the slightest of facts support a finding of negli-\ngence. As the plaintiff has established in the multitude of\nFELA cases it has set forth in its brief (none of which, we note\nhowever, is a claim brought on the theory of res ipsa loquitur),\nthe amount of evidence required to submit a FELA case to the\njury is “scarcely more substantial than pigeon bone broth.”\nRuark Brief at 11 (citing Green v. CSX Transp., Inc., 414 F.3d\n758, 766 (7th Cir. 2005)). But, “[a]s light as this burden is, the\nplaintiff must still present some evidence of negligence …\nspecifically, the plaintiff must offer evidence creating a genu-\nine issue of fact on the common law elements of negligence,\nincluding duty, breach, foreseeability, and causation.” Green,\n414 F.3d at 766. See also Tennant v. Peoria & P. U. Ry. Co., 321\nU.S. 29, 32, 64 S. Ct. 409, 411 (1944) (“[p]etitioner [is] required\nto present probative facts from which the negligence and the\ncausal relation could reasonably be inferred.”). A FELA plain-\ntiff “is not impervious to summary judgment. If the plaintiff\npresents no evidence whatsoever to support the inference of\n\fNo. 17-2429 7\n\nnegligence, the railroad’s summary judgment motion is\nproperly granted.” Lisek v. Norfolk & W. Ry. Co., 30 F.3d 823,\n832 (7th Cir. 1994). And if the plaintiff opts to proceed on a\ndoctrine that the injury speaks for itself, as opposed to some\nother theory of liability, he must meet the requirements to\nproceed on that theory, just as he would have been required\nto offer evidence creating a genuine issue of fact on duty,\nbreach, foreseeability, and causation if Ruark’s theory of the\ncase had been an ordinary negligence claim. See Green, 414\nF.3d at 766. In this case, Ruark’s theory of the case is that Un-\nion Pacific’s negligence should be inferred under the doctrine\nof res ipsa loquitur, and so we turn now to the requirements\nfor the evidence he was required to offer to present his case to\na jury.\n Ordinarily negligence may not be inferred from the mere\nfact that an injury occurred, but the doctrine of res ipsa loqui-\ntur recognizes that “in some situations an occurrence is so un-\nusual that, absent a reasonable justification, the person in con-\ntrol of the situation should be held responsible.” Maroules, 452\nF.3d at 642. The doctrine of res ipsa loquitur permits an infer-\nence of liability on the part of the defendant if the plaintiff can\ndemonstrate that certain conditions existed making it likely\nthat the defendant was responsible for the injury. The doc-\ntrine means “the matter speaks for itself” and thus, as the Su-\npreme Court explained,\n When a thing which causes injury, without fault\n of the injured person, is shown to be under the\n exclusive control of the defendant, and the in-\n jury is such, as in the ordinary course of things,\n does not occur if the one having such control\n uses proper care, it affords reasonable evidence,\n\f8 No. 17-2429\n\n in the absence of an explanation, that the injury\n arose from the defendant’s want of care.\nJesionowski v. Boston & M.R.R., 329 U.S. 452, 456, 67 S. Ct. 401,\n403 (1947) (citing San Juan Light & Transit Co. v. Requena, 224\nU.S. 89, 98–99, 32 S. Ct. 399, 401 (1912)). And because courts\nare fond of enumerated lists, we often state the prerequisites\nfor a res ipsa claim as follows: (1) The injury must be one that\ndoes not ordinarily occur absent negligence; (2) the injury\nmust have been caused by some agency or instrumentality in\nthe exclusive control of the defendant; and (3) the injury must\nnot have been due to any contribution or voluntary activity\non the part of the plaintiff. Robinson v. Burlington N. R.R. Co.,\n131 F.3d 648, 652 (7th Cir. 1997) (citing Stillman v. Norfolk & W.\nRy, 811 F.2d 834, 836–37 (4th Cir. 1987)).\n Once the plaintiff has met the prerequisites listed above,\nthe reward is high. She is entitled to have the court instruct\nthe jury that it may draw an inference of negligence. That is\nnot to say that the jury would be compelled to find negli-\ngence—just that the facts of the occurrence warrant such an\ninference. Jesionowski, 329 U.S. at 457, 67 S. Ct. at 404 (citing\nSweeney v. Errving, 228 U.S. 233, 240, 33 S. Ct. 416, 418 (1913)).\n A plaintiff may use the doctrine of res ipsa loquitur in a\nFELA case. See Robinson, 131 F.3d at 652. And in this case, the\nlast two factors in the list are the ones at play—that is whether\nthe Railroad had exclusive control of the drill or not, and\nwhether any of Ruark’s injuries could be attributed to his own\nactions. And these factors are, of course, really two sides of\nthe same coin. In order for a plaintiff to show that the defend-\nant was responsible for the accident, he must preclude other\npossible causes of the injury—including his own contribution.\nSee Jesionowski, 329 U.S. at 454, 67 S. Ct. at 402.\n\fNo. 17-2429 9\n\n In this case, the key question, therefore, was whether\nRuark’s injury was caused by some agency or instrumentality\nin the exclusive control of the Railroad. The district court con-\ncluded that there was no question that the drill was not in the\nexclusive control of the Railroad, and we agree. As Ruark tes-\ntified, he was touching and using the drill when the hydraulic\nfluid came squirting out. He was involved in hooking the rail\ndrill to the hydraulic lines on the machine that day, and he\nused the rail drill to drill at least four or five holes. The drill\nwas operating properly when he first began using it and\nworked without incident throughout the day up until the\ntime of the accident. In fact, at the hearing on Union Pacific’s\nmotion for judgment as a matter of law, Ruark’s counsel ad-\nmitted that he had partial control over the drill.\n Court: We know that he—at least he was, in\n part, in control of this drill, correct?\n Ruark’s counsel: Correct.\n As the district court concluded, “in light of the plaintiff’s\ntestimony about the control that he had in this case, hooking\nup the hoses, hooking up the hoses to the drill, hooking up\nthe drill to the rail, pulling the lever in and out, turning the\ndrill on and off, I find res ipsa loquitur does not apply.” R. 110\nat 28. We agree.\n Ruark attempts to nudge the control factor in Ruark’s fa-\nvor in two ways. First, Ruark claims that the requirement of\n“exclusive control” is not as exclusive as the phrase might\nsuggest. Second, he argues that Union Pacific had a “non-del-\negable duty to maintain its equipment in safe working order\nand to provide Ruark with a safe place in which to work and\nsafe equipment.” Ruark Brief at 21.\n\f10 No. 17-2429\n\n Turning to exclusive control first, Ruark argues that the\ndoctrine is applicable even where there is some evidence that\nthe “plaintiff’s participation in the employer’s activity might\nhave produced the accident.” Ruark Brief at 6. For this prop-\nosition, Ruark cites Colmenares Vivas v. Sun Alliance. Ins. Co.,\n807 F.2d 1102 (1st Cir. 1986). In Colmenares Vivas, the plaintiffs\nwere injured when an airport escalator handrail malfunc-\ntioned causing them to tumble down the stairs. The court had\nto decide whether the doctrine of res ipsa loquitur could be\napplied where the Ports Authority of Puerto Rico owned and\nmaintained the airport but contracted with Westinghouse to\nmaintain the escalator. Id. at 1105-06. In deciding that res ipsa\nloquitur could be applied in the case against the airport au-\nthority, the court used the following language, on which\nRuark relies:\n Thus, res ipsa loquitur applies even if the de-\n fendant shares responsibility with another, or if\n the defendant is responsible for the instrumen-\n tality even though someone else had physical\n control over it. … It follows that a defendant\n charged with a nondelegable duty of care to\n maintain an instrumentality in a safe condition\n effectively has exclusive control over it for the\n purposes of applying res ipsa loquitur.\nColmenares Vivas, 807 F.2d at 1106 (internal citations omitted).\nBut in Colmenares Vivas, the court was deciding which of two\npotential tort feasors (in a non-FELA case) effectively had con-\ntrol over the escalator. There was no question that the injured\nparties themselves had no control over the escalator. Id. at\n1107. In this case, in contrast, the question is whether the\nplaintiff may have contributed to the accident, and the\n\fNo. 17-2429 11\n\nSupreme Court and this court have been clear that one cannot\nemploy the doctrine of res ipsa loquitur where there is a pos-\nsibility of negligence on the part of the injured plaintiff. Rob-\ninson, 131 F.3d at 653–54. The injury must have occurred\n“without fault of the injured person.” Jesionowski, 329 U.S. at\n456–57, 67 S. Ct. at 403-04 (1947).\n Ruark is correct that a court can still give an instruction on\nres ipsa loquitur when the plaintiff’s allegedly negligent acts\nare “part of the employer’s general activity.” Robinson, 131\nF.3d at 655, n. 6. But this is only true if a jury can first eliminate\nthe possibility that the plaintiff’s activity contributed to the\ninjury. Jesionowski, 329 U.S. at 456–57, 67 S. Ct. at 403–04; Rob-\ninson, 131 F.3d at 653–54. What matters is whether the injured\nperson participated in the operations in a manner that con-\ntributed to the accident—not merely whether he participated\nin the operations of the injuring instrumentality. Jesionowski,\n329 U.S. at 457, 67 S. Ct. at 404. Robinson, 131 F.3d at 655 & n.6.\nSee also Potthast v. Metro-N. R.R. Co., 400 F.3d 143, 151 (2d Cir.\n2005) (“It is this consideration of inappropriate interaction, ra-\nther than whether there ever was or was not any interaction\ninvolving the plaintiff and the instrumentality of the injury,\nthat constitutes the salient criterion.”) (emphasis in original).\n And so, for example, if a jury concludes that an injured\nbrakeman’s activities—throwing a switch and giving a sig-\nnal—did not contribute to the accident where he was thrown\nfrom a rail car and killed, the defendant railroad qualifies as\nthe exclusive controller of the factors which caused the injury.\nJesionowski, 329 U.S. at 458, 67 S. Ct. at 404. The jury may then\nproceed on a res ipsa loquitur instruction, inferring negli-\ngence on the part of the railroad. Id. In contrast, a railroad em-\nployee who is not riding in the proper position while\n\f12 No. 17-2429\n\nswitching railcars may have contributed to her own injuries\nand thus is not entitled to a res ipsa instruction. See Robinson,\n131 F. 3d at 655. Nor is a railroad worker plaintiff entitled to\nsuch an instruction if he made the decision to attempt to free\na jammed forklift load by pulling on it while standing beneath\nit. Stillman, 811 F.2d at 837. See also McGinnis v. Consolidated\nRail Corp., Nos. 96-2571, 97–1009, 1997 WL 457530, at 3 (4th\nCir. Aug. 12, 1997) (railroad worker who lost his balance and\ngrabbed a coupler which then crushed his hand could not re-\ncover on a res ipsa loquitur theory because of his contribution\nto or voluntary activity in the accident); Mandrgoc v. Patapsco\n& Back Rivers R.R. Co., No. 95-3123, 1996 WL 477253, at 5 (4th\nCir. Aug. 23, 1996) (an employee had partial control of the in-\nstrumentality of injury because he operated the switch and\nelected to jump from the car in anticipation of the derailment);\nSanta Maria v. Metro-North Commuter R.R., 81 F.3d 265, 272 (2d\nCir. 1996) (holding res ipsa loquitur instruction was inappro-\npriate because employee had partial control over a cot, sup-\nplied by the Railroad, which collapsed while the employee\nwas sleeping on it).\n Ruark argues that there was “no evidence that Plaintiff op-\nerated the drill in any negligent manner.” Ruark Reply Brief\nat 3. This is, of course, correct, but it misunderstands the rela-\ntionship between the second and third requirements of a res\nipsa loquitur claim and the plaintiff’s burden. Recall that the\ndoctrine of res ipsa loquitur shifts the burden to the defendant\nand allows a jury to infer negligence. This is not the usual way\nour legal system proceeds and places a heavy thumb on the\nplaintiff’s side of the scale. Before that thumb can be placed,\nthe doctrine requires that a plaintiff make a significant show-\ning that he can eliminate other possible explanations for the\ninjury—aside from the employer’s negligence. The\n\fNo. 17-2429 13\n\nprerequisites, therefore, are “rigidly defined.” Jesionowski, 329\nU.S. at 456, 67 S. Ct. at 403. One of those prerequisites is that\n“the defendant must have exclusive control of all the things\nused in an operation which might probably have caused in-\njury.” Jesionowski, 329 U.S. at 456, 67 S. Ct. at 403. If the em-\nployer is not in control of the instrumentality of the injury\nthen there is a greater chance that the person or thing that is,\nin fact, in control of that instrumentality caused the injury. Be-\ncause Ruark controlled the drill and its set up, his actions\ncould have been the cause of his injury. That is not to say that\nthey were. Ruark is correct that there is no evidence that he\noperated the drill negligently. There need not be. But without\na demonstration that Union Pacific had control of the instru-\nmentality of the injury, we cannot employ a doctrine that as-\nsumes Union Pacific’s negligence by mere fact of the accident\nitself. As the Supreme Court put it:\n there can be no application of the doctrine of res\n ipsa loquitur if other causes than the negligence\n of the defendant, its agents or servants, might\n have produced the accident[.] [T]he plaintiff …\n has the burden to exclude the operation of such\n causes by a fair preponderance of the evidence\n before the rule can be applied. This is so because\n if there are other causes than the negligence of\n the defendant that might have caused the acci-\n dent, the defendant cannot be said to be in ex-\n clusive control—one of the prerequisites to the\n application of the rule here invoked.\nJesionowski, 329 U.S. at 454, 67 S. Ct. at 402 (1947).\n Here the district court concluded that “it isn’t just that the\nplaintiff had some role, but that he was in control of this tool,\n\f14 No. 17-2429\n\nthis instrumentality, and … more so than the railroad.” R. 110\nat 29. And thus the court concluded that Ruark had not pre-\nsented sufficient evidence that the Railroad controlled the\ndrill in order to meet the prerequisites for a res ipsa loquitur\ninstruction. R. 110 at 24. We agree.\n Ruark’s brief also states, without argument, that “Union\nPacific has a non-delegable duty to maintain its equipment in\nsafe working order and to provide Ruark with a safe place in\nwhich to work and safe equipment.” Ruark Brief at 21. This\nseems to be just another way of saying that a jury can infer\nnegligence by an employer any time an accident occurs. If this\nposition were true, then in every FELA case, the railroad\nwould be assumed to have complete control over everything\nin the workplace regardless of the plaintiff’s contributory neg-\nligence, and every FELA case would warrant a res ipsa loqui-\ntur instruction. We know, however, that is not so. See, e.g.,\nRobinson, 131 F. 3d at 654; Stillman, 811 F.2d at 837; Santa Ma-\nria, 81 F.3d at 272; McGinnis, 1997 WL 457530, at 3; Mandrgoc,\n1996 WL 477253, at 5.\n Ruark failed to meet the prerequisites for a res ipsa loqui-\ntur instruction, and because this was his sole theory of the\ncase, the district court correctly granted Union Pacific’s mo-\ntion for judgment as a matter of law.\n B. The denial of a request for a continuance.\n As Ruark’s FELA case ambled along, so too did the crimi-\nnal claims against him in his unrelated criminal case. After he\nwas incarcerated in that matter, his lawyers moved to with-\ndraw, claiming it was impossible to represent him under the\n\fNo. 17-2429 15\n\ncircumstances. (R. 41, R. 43, R. 39 at ¶ 7, R. 42 at ¶ 6).2 Once\nRuark’s new counsel first appeared in the case, the judge set\na pretrial conference for two months later. Sixteen days before\nthat conference, Ruark’s counsel first requested to continue\nthe conference and trial. He did not expressly request that the\ncourt reopen discovery, but he noted that he wanted to take\nstatements or depositions of multiple individuals and wished\nto hire an economist. The Railroad argued that all of those in-\ndividuals had been disclosed and were known to the plaintiff\nsince 2014 and could have been deposed in a timely manner.\nThe district court denied the motion.\n Ruark argues that the district court abused its discretion\nby denying the motion to continue. A district court, however,\nmust have a wide berth to manage caseloads and dockets and\ntherefore “[a] district court’s exercise of its discretion in\nscheduling trials and granting or denying continuances is ‘al-\nmost standardless.’”United States v. Egwaoje, 335 F.3d 579,\n587–88 (7th Cir. 2003) (citing United States v. Moya-Gomez, 860\nF.2d 706, 742 (7th Cir. 1988)). See also, Flint v. City of Belvidere,\n791 F.3d 764, 768 (7th Cir. 2015). And in this case, the district\ncourt judge managed his discretion reasonably. As explana-\ntion for denying the motion for the continuance at the Febru-\nary 6 pretrial conference, the judge noted that Ruark had a\nnormal scheduling order, competent former counsel, and that\nthe trial had already been continued two or three times\n\n\n2 Ruark’s brief states that, “[t]he district judge seemed to begrudge that\nRuark was serving a sentence on an unrelated issue … .” Ruark Brief at 24.\nIt is worth noting that the district court did not seem particularly con-\ncerned about the logistical problems of deposing Ruark in prison, noting\nthat the judge had been involved in a similar case where a plaintiff who\nwas in prison needed to be deposed. R. 109 at 12.\n\f16 No. 17-2429\n\npreviously. Moreover, he did not deny definitively Ruark’s\nmotion for a continuance, but rather he denied it for the time\nbeing, encouraging Ruark’s counsel to file such a motion if it\nbecame necessary later in the proceedings:\n … as you get more familiar with your case, I am\n open to you filing a motion to—[a] formal mo-\n tion to continue that trial date, setting out the\n kind of things you talked about, which defend-\n ant can respond to, and I’ll rule on that motion,\n you know, and see if you come up with any-\n thing that might convince me.\nR. 109 at 15-16. Additionally, on February 22, 2017, the district\ncourt entered a formal written order that stated “[u]pon a trial\ndate being set, Plaintiff is granted leave to file a formal motion\nto continue, if appropriate.” R. 58.\n Loss of counsel is not a per se reason that a district court\nmight reopen discovery. Like other factors it is one of many\nthat a court might consider in exercising its broad discretion\nto grant or deny a continuance. See, e.g., Egwaoje, 335 F.3d at\n588 (considering plaintiff’s knowledge of the trial schedule,\nhis repeated requests for a speedy trial, multiple rescheduling\nafter the plaintiff fired counsel, likelihood of prejudice, com-\nplexity of case, diligent use of trial preparation time, and in-\nconvenience and burden to the court and parties); Washington\nv. Sherwin Real Estate, Inc., 694 F.2d 1081, 1085–86, 1088–89 (7th\nCir. 1982) (affirming the denial of continuance where the\nplaintiffs’ lawyer withdrew on the day of trial, the case had\nbeen pending for three years, and the district court permissi-\nbly concluded that “no further delay could be tolerated.”). In\nthis case, however, the judge recognized that the change of\ncounsel might be a hindrance to preparation and advised\n\fNo. 17-2429 17\n\nRuark’s counsel that he would keep an open mind in consid-\nering a new motion to continue.\n Plaintiff’s counsel, however, never filed a motion to con-\ntinue the June trial date or to reopen discovery, and instead\nproceeded to trial. Even if the judge had erred (and for the\nreasons asserted above, we find that he was well within his\ndiscretion), Ruark cannot show any prejudice from the district\ncourt’s ruling. He knew the identities of the individuals he\nwanted to interview, but he appears to have abandoned any\nattempt to interview them or reopen discovery.\n III.\n In short, we conclude that the district court correctly en-\ntered judgment as a matter of law for the Railroad as Ruark\nfailed to satisfy the prerequisites for the theory of negligence\nunder which he pursued the case—res ipsa loquitur. The dis-\ntrict court did not abuse its discretion in refusing to grant a\nmotion for a continuance. We therefore AFFIRM the judg-\nment in all respects.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369264/", "author_raw": "Ilana Kara Diamond Rovner"}]}	FLAUM	ROVNER	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592011/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,012		Anthony Walker v. Ingersoll Cutting Tool Company	2019-02-20	18-2673	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, KANNE, and HAMILTON, Circuit Judges.", "parties": "", "opinions": [{"author": "Michael Stephen Kanne", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2673\nANTHONY WALKER,\n Plaintiff-Appellant,\n v.\n\nINGERSOLL CUTTING TOOL COMPANY,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Western Division\n No. 16 C 50040 — Frederick J. Kapala, Judge.\n ____________________\n\n ARGUED JANUARY 15, 2019 — DECIDED FEBRUARY 20, 2019\n ____________________\n\n Before FLAUM, KANNE, and HAMILTON, Circuit Judges.\n KANNE, Circuit Judge. After Anthony Walker was involved\nin a physical altercation with another employee of Ingersoll\nCutting Tools, the company discharged him. He sued Inger-\nsoll, alleging racial discrimination under Title VII and retalia-\ntory discharge under Illinois law. The district court granted\nsummary judgment for Ingersoll on all claims. On appeal,\nWalker abandoned his Title VII racial discrimination claims.\nBecause Walker did not identify evidence of a causal\n\f2 No. 18-2673\n\nconnection between his termination and conduct protected by\nIllinois law, we aﬃrm the district court’s grant of summary\njudgment.\n I. BACKGROUND\n Anthony Walker has worked as a machinist at Ingersoll\nCutting Tools since October 2008. Ingersoll asserts that\nWalker has a history of conflict with coworkers. That appears\nto be largely undisputed by Walker, but the facts relevant for\nthe present appeal involve an incident on October 21, 2014.\nOn that day, Walker was listening and dancing to music while\nworking at his machine. Another coworker, Todd Raﬀerty,\ntold Walker to mute the radio. The parties dispute the severity\nof the confrontation. Walker alleges that he was physically as-\nsaulted—by which he means he was bumped—and threat-\nened with additional violence. Ingersoll questions whether\nphysical contact or threats of violence occurred. But everyone\nacknowledges that Raﬀerty yelled at Walker to turn the music\noﬀ, and then the two men engaged in a shouting match.\n The unit supervisor, Daniel Thompson, separated the two\nmen, calmed them down, and questioned them. Afterwards,\nWalker returned to work and Raﬀerty went home for the day.\nThe two men worked without incident on October 22. On Oc-\ntober 23, Walker met with Thompson and another supervisor\nto discuss the incident. Walker asked Thompson to discipline\nRaﬀerty (perhaps by a mandatory leave of absence). It is un-\nclear whether Thompson directly refused to do so. But Walker\nwas frustrated with the inaction by Ingersoll. Walker told\nThompson that he no longer trusted or respected him because\nhe had not disciplined Raﬀerty for the assault (and because of\nWalker’s perception that Thompson inadequately responded\n\fNo. 18-2673 3\n\nto workplace disputes in the past). Walker also suggested that\nthe conflict with Raﬀerty was aﬀecting his physical wellbeing.\n The supervisors suspended Walker with pay while the\ncompany determined how to proceed. Accordingly, October\n23, 2014, was Walker’s last day of work at Ingersoll.\n On October 26, 2014, Thompson told his supervisor, Scott\nTilton, that “I don’t see now how [Walker] can remain part of\n[the unit] any longer.” Thompson cited Walker’s admitted\ndislike towards his coworkers and his disrespect towards his\nsupervisor. Thompson and Tilton met on October 27 and de-\ncided to terminate Walker’s employment. They informed\nIngersoll’s human resources manager by email the same day.\nShe confirmed receipt of the email on October 28 and began\nthe termination process.\n On October 29—one day after Ingersoll had concluded\nthat Walker would be fired—Walker’s attorney informed the\ncompany that he intended to sue for discrimination and retal-\niation unless Ingersoll brought him back to work. The same\nday, Walker reported the alleged physical assault by Raﬀerty\nto the local police department. The local prosecutor ultimately\ndeclined to bring charges. Ingersoll formally terminated\nWalker’s employment on November 18, 2014.\n II. ANALYSIS\n During oral argument, Walker withdrew his Title VII\nclaims of discrimination and retaliation. He did not expressly\nwithdraw his claim of Illinois Worker’s Compensation Act re-\ntaliation. But Walker did not mention that claim during oral\nargument or in his opening brief (Walker declined to file a re-\nply brief). Thus, Walker waived any challenge to the district\ncourt’s judgment on that claim. Puﬀer v. Allstate Ins. Co., 675\n\f4 No. 18-2673\n\nF.3d 709, 718 (7th Cir. 2012). The sole remaining issue, then, is\nwhether the district court properly granted summary judg-\nment on Walker’s claim that Ingersoll fired him for reporting\na crime. We review the district court’s summary judgment de-\ncision de novo and draw all reasonable inferences in Walker’s\nfavor. Burritt v. Ditlefsen, 807 F.3d 239, 248 (7th Cir. 2015).\n Walker first argues that, upon granting judgment on his\nfederal claims, the district court should have relinquished ju-\nrisdiction over his state law claims. That argument rests on a\nmisapprehension of how federal supplemental jurisdiction\nworks. If a district court possesses original jurisdiction over\none claim, 28 U.S.C. § 1367(a) permits that court to also exer-\ncise supplemental jurisdiction over any claim that is “so re-\nlated to claims in the action within such original jurisdiction\nthat they form part of the same case or controversy.” If the\ndistrict court dismisses the federal claims on any basis other\nthan for lack of jurisdiction, the court has discretion regarding\nwhether to maintain supplemental jurisdiction over the state\nlaw claims. Hansen v. Bd. of Tr. of Hamilton Se. Sch. Corp., 551\nF.3d 599, 607 (7th Cir. 2008). Here, the district court did not\ndismiss the federal claims for lack of jurisdiction. And there\nwas no abuse of discretion in the district court’s decision to\nresolve the state law retaliation claims on the merits.\n We turn now to those merits. Under Illinois law, a plaintiﬀ\nmay sue for retaliatory discharge if “(1) the employer dis-\ncharged the employee, (2) in retaliation for the employeeʹs ac-\ntivities, and (3) that the discharge violates a clear mandate of\npublic policy.” Turner v. Mem’l Med. Ctr., 911 N.E.2d 369, 374\n(Ill. 2009).\n Walker’s claim fails on the second element. “The require-\nment that the discharge be in retaliation for plaintiﬀʹs\n\fNo. 18-2673 5\n\nactivities requires that a plaintiﬀ establish a causal relation-\nship between the employee’s activities and the discharge.”\nMichael v. Precision All. Grp., LLC, 2014 IL 117376, ¶ 31. And,\nto prove causality, the plaintiﬀ must show “more than a se-\nquential connection.” Roger v. Yellow Freight Sys., Inc., 21 F.3d\n146, 149 (7th Cir. 1994). Rather, the plaintiﬀ has the burden of\n“aﬃrmatively show[ing] that the discharge was primarily in\nretaliation for his exercise of a protected right.” Id.\n Ingersoll made the decision to discharge Walker on Octo-\nber 27; Walker filed his police report on October 29. He makes\nno attempt to undermine or question the company’s evidence\nregarding when it decided to terminate his employment.\nWalker thus cannot show even a sequential connection be-\ntween reporting the alleged crime and his discharge.\n Undeterred, Walker argues that the protected conduct was\nhis reporting of the incident to Ingersoll, not his police report.\nWalker cites no authority to support his assertion that Illinois\nhas articulated a clear public policy mandate against firing an\nemployee who was involved in a workplace dispute. It would\nbe diﬃcult to square such a conclusion with the “general rule\nthat an ‘at-will’ employment is terminable at any time for any\nor no cause.” Palmateer v. Int’l Harvester Co., 421 N.E.2d 876,\n878 (Ill. 1981). It’s true that Walker now emphasizes that the\ndispute involved a “bump.” But he does not identify any evi-\ndence which suggests that his complaints to Ingersoll focused\non the physical contact specifically or alleged that a crime oc-\ncurred. And, regardless, Walker hasn’t pointed us to support\nfor the idea that Illinois has established a clear public policy\nagainst firing an employee who was bumped during a shout-\ning match with a coworker. We are deeply skeptical.\n\f6 No. 18-2673\n\n Even assuming that Walker has identified protected con-\nduct, this alternative theory still fails to satisfy the causality\nelement. There is a sequential connection between the alterca-\ntion and Walker’s discharge. But Walker has not provided ev-\nidence aﬃrmatively showing that Ingersoll fired him because\nhe accused Raﬀerty of assault. The company asserts that it\nfired Walker because of his history of workplace conflict and\nhis stated distrust and disrespect for his coworkers and su-\npervisor. When a worker is fired for “impugn[ing] the com-\npany’s integrity,” the discharge does not violate public policy.\nPalmateer, 421 N.E.2d at 879 (citing Abrisz v. Pulley Freight\nLines, Inc., 270 N.W.2d 454, 456 (Iowa 1978)). Walker falls short\nof identifying a material issue of fact on the causality element\nof his state law retaliation claim. The district court properly\ngranted judgment for Ingersoll.\n III. CONCLUSION\n Walker waived his challenge to the district court’s judg-\nment on his Title VII and Illinois Worker’s Compensation Act\nclaims. Regarding the remaining claim, Walker simply failed\nto support his allegation that he was fired for reporting a\ncrime.\nAFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369265/", "author_raw": "Michael Stephen Kanne"}]}	FLAUM	KANNE	HAMILTON	1	{"FLAUM": ", Circuit", "KANNE": ", Circuit", "HAMILTON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592012/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,218	PEERLESS NETWORK, INC., Et Al., Plaintiffs-Appellees, v. MCI COMMUNICATIONS SERVICES, INC., Verizon Services Corp., and Verizon Select Services, Inc., Defendants-Appellants.	Peerless Network, Inc. v. MCI Communications Services, I	2019-02-20	18-2747	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2747\nPEERLESS NETWORK, INC., et al.,\n Plaintiffs-Appellees,\n v.\n\nMCI COMMUNICATIONS SERVICES, INC.,\nVERIZON SERVICES CORP., and\nVERIZON SELECT SERVICES, INC.,\n Defendants-Appellants.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:14-cv-07417 — Thomas M. Durkin, Judge.\n ____________________\n\n ARGUED JANUARY 14, 2019 — DECIDED FEBRUARY 20, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir-\ncuit Judges.\n ST. EVE, Circuit Judge. This case takes us into the complex\nworld of telecommunications, but the question we confront is\nsimple: Was the district court correct to grant partial final\njudgment under Federal Rule of Civil Procedure 54(b) on\nsome claims, despite their significant factual overlap with\n\f2 No. 18-2747\n\npending claims? We conclude that it was not. We also con-\nclude that a genuine issue of fact persists with respect to cer-\ntain breach-of-contract claims. We therefore vacate the Rule\n54(b) judgment on certain counts, dismiss in part for lack of\njurisdiction, and otherwise reverse and remand.\n I. Background\n Local Exchange Carriers (“LECs”) and Interexchange Car-\nriers (“IXCs”) are types of telecommunications service pro-\nviders. They work together to enable phone users to make\nlong-distance calls. LECs operate in a limited geographical\narea, IXCs transport calls across LECs to allow customers to\nmake calls to geographic areas outside their own. As the dis-\ntrict court succinctly described:\n A common example of this would be a long-distance\n call from Chicago to St. Louis. In that example,\n AT&T Illinois (the incumbent LEC in Chicago) per-\n forms transport and switching functions and origi-\n nates the call on its network, and hands the call over\n to an IXC, such as Sprint Long-Distance, which car-\n ries the call to St. Louis. Sprint then hands the call\n off to AT&T Missouri (the incumbent LEC in St.\n Louis), which performs switching functions and de-\n livers the call to the called party. While the process\n sounds cumbersome, in practice it happens in frac-\n tions of seconds.\nPeerless Network, Inc. v. MCI Commc’ns Servs., Inc., No. 14 C\n7417, 2018 WL 1378347, at *2 (N.D. Ill. Mar. 16, 2018). Switch-\ning functions include tandem switching, which connects\nLECs to IXCs, and end-office switching, which connects LECs\nto end-users.\n\fNo. 18-2747 3\n\n IXCs pay a fee in exchange for access to an LEC’s network,\nknown as an “access service charge.” The rates are set forth\neither in tariffs the LEC has filed with regulatory agencies or\nin negotiated agreements between the IXC and LEC.\n In February 2009, Peerless, an LEC, and Verizon, an IXC, 1\nentered into a “Tandem Service Agreement,” a contract that\nprovided for lowered rates for certain switching services. If a\ncontractually provided rate did not apply, Peerless billed Ver-\nizon its tariff rates, which Peerless filed with the Federal Com-\nmunications Commission and state public utility commis-\nsions.\n In 2013, the relationship between the parties broke down.\nVerizon disputed and withheld payment for certain charges\non Peerless’s bills. In September 2013, the parties entered into\na standstill agreement in an attempt to avoid litigation. The\nagreement, however, did not have its intended effect. Verizon\ncontinued to withhold payment, and in July 2014, Peerless no-\ntified Verizon that it was replacing certain rates in the Tan-\ndem Service Agreement with the tariff rates. Verizon still\nwithheld payment, and in September 2014, Peerless sued Ver-\nizon.\n\n\n\n\n 1\n The Peerless plaintiffs-appellees are a parent company and several\nsubsidiary competitive LECs, meaning that they are LECs that entered the\nmarket after the Telecommunications Act of 1996. See Indiana Bell Tel. Co.\nv. McCarty, 362 F.3d 378, 382 & n.5 (7th Cir. 2004). Two subsidiaries are\nnot competitive LECs, but that is irrelevant to this appeal. The Verizon\ndefendants-appellants consist of an IXC, a telecommunications carrier,\nand a management company.\n\f4 No. 18-2747\n\n Peerless’s complaint alleged twelve counts, but only a sub-\nset of those are relevant to this appeal. 2 Counts I and II alleged\na breach of the Tandem Service Agreement. Counts III\nthrough V and XI alleged a breach of federal and state tariffs\nand a related declaratory-judgment claim.\n In defense, Verizon alleged that, for multiple reasons,\nPeerless was not entitled to collect on the outstanding\namounts it had billed Verizon. First, Verizon asserted that\nPeerless qualifies as an access stimulator, which is an LEC\nwith high rates that “enters into an arrangement with a pro-\nvider of high call volume operations such as chat lines, adult\nentertainment calls, and ‘free’ conference calls.” In re Connect\nAm. Fund, 26 F.C.C. Rcd. 17663, ¶ 656 (2011). “The arrange-\nment inflates or stimulates the access minutes terminated to\nthe LEC, and the LEC then shares a portion of the increased\naccess revenues resulting from the increased demand with\nthe ‘free’ service provider, or offers some other benefit to the\n‘free’ service provider.” Id. Verizon asserted that, despite en-\ngaging in access stimulation since 2012, Peerless failed to re-\nduce its tariff rates until 2015, as the FCC requires access stim-\nulators to do. See 47 C.F.R. § 61.26(g). Even then, Verizon ar-\ngues, the reduced rates did not comply with FCC rules.\n Second, Verizon alleged that Peerless was billing certain\nservices at higher rates that did not apply to those services.\nSpecifically, Verizon alleged that Peerless (1) billed end-office\nrates for routing Voice over Internet Protocol (“VoIP”) calls\n\n\n 2\n The district court dismissed Counts VI through IX at the motion to\ndismiss stage, and the district court granted summary judgment for Veri-\nzon on Count X. Peerless stated in the proceedings below that it would\nwithdraw Count XII “[a]t the appropriate time.”\n\fNo. 18-2747 5\n\neven though routing such calls does not meet the definition of\nend-office switching; and (2) billed terminating switched-ac-\ncess rates for routing calls to two-stage calling providers, such\nas prepaid calling-card services, even though Peerless was not\nactually terminating the calls. Verizon alleged that billing at\nthese higher rates violated telecommunications law and the\nterms of Peerless’s tariffs.\n Verizon also asserted four counterclaims for breach of fed-\neral and state tariffs and related declaratory judgments. These\ncounterclaims relied on the same access stimulation, VoIP,\nand two-stage calling arguments. In its breach-of-tariff coun-\nterclaims, however, Verizon sought to recover amounts it had\nalready paid Peerless for the charges allegedly made in viola-\ntion of Peerless’s tariffs and telecommunications law.\n The parties cross-moved for partial summary judgment.\nThe district court referred the access stimulation, VoIP, and\ntwo-stage calling issues, as alleged in the counterclaims, to the\nFCC under the primary-jurisdiction doctrine because they in-\nvolved complicated issues of telecommunications law that\ndepended on “the resolution of numerous interpretive ques-\ntions.” See United States ex rel. Sheet Metal Workers Int’l Ass’n,\nLocal Union 20 v. Horning Invs., LLC, 828 F.3d 587, 592 (7th Cir.\n2016) (“Primary jurisdiction is a permissive doctrine that ap-\nplies when resolving a claim requires the resolution of issues\nwhich, under a regulatory scheme, have been placed within\nthe special competence of an administrative body.”) (internal\nquotation marks omitted). The district court accordingly\nstayed Verizon’s counterclaims. 3\n\n\n 3\n In its summary judgment order, the district court expressly stayed\nonly Counterclaims I and III. In its Rule 54(b) order, however, the district\n\f6 No. 18-2747\n\n Despite the referral and stay, the district court granted\nsummary judgment to Peerless on its breach-of-tariff claims.\nThe district court concluded that Verizon’s access stimulation\ndefense could be adjudicated separately from Peerless’s col-\nlection action, reasoning that Verizon was required to pay dis-\nputed charges before challenging them. The district court did\nnot independently resolve the VoIP and two-stage calling de-\nfenses, instead stating summarily in a footnote that the same\nreasoning applied to those challenges.\n The district court entered a partial final judgment on Peer-\nless’s breach-of-tariff claims pursuant to Federal Rule of Civil\nProcedure 54(b). It determined that it would be “unjust” to\nmake Peerless wait to collect on the unpaid bills until the FCC\nresolved Verizon’s claims, and that the risk that Verizon\nmight be entitled to a refund is outweighed by the potential\ndamage to Peerless in further delay.\n The district court also granted summary judgment and\nRule 54(b) partial final judgment on Peerless’s claims regard-\ning the breach of the Tandem Service Agreement. The district\ncourt concluded that Verizon had not disputed the alleged\nbreach, only the amount owed. Verizon appeals.\n II. Discussion\n Neither party disputes that Verizon’s counterclaims were\nproperly referred to the FCC. But Verizon argues that the dis-\ntrict court erred in granting partial final judgment on Peer-\nless’s breach-of-tariff claims. Because Peerless’s entitlement to\ncollect under its tariffs substantially overlaps with the claims\n\ncourt referred generally to staying “Verizon’s counterclaims.” We inter-\npret this to mean that all four of Verizon’s counterclaims are currently\nstayed in the district court.\n\fNo. 18-2747 7\n\nthat are pending in the district court and before the FCC, we\nagree. We therefore do not reach the underlying merits of\nthese claims.\n Peerless’s claims that Verizon breached the Tandem Ser-\nvice Agreement, however, are properly before us. Verizon\ncontests that it breached the agreement and argues that Peer-\nless has not presented sufficient evidence to show a breach.\nWe conclude that a genuine dispute of material fact remains\non those claims and summary judgment was improper.\nA. The Tariff Claims\n When a case involves more than one claim, Rule 54(b) al-\nlows a federal court to direct entry of a final judgment on “one\nor more, but fewer than all, claims,” provided there is no just\nreason for delay. Fed. R. Civ. P. 54(b). A final judgment en-\ntered under Rule 54(b) is immediately appealable though the\nrest of the case remains pending in the district court. VDF Fu-\ntureCeuticals, Inc. v. Stiefel Labs., Inc., 792 F.3d 842, 845 (7th Cir.\n2015).\n We conduct a two-step analysis of a Rule 54(b) partial final\njudgment. First, we make sure that the order was truly a final\njudgment—a review we undertake de novo. Gen. Ins. Co. of Am.\nv. Clark Mall Corp., 644 F.3d 375, 379 (7th Cir. 2011). Second,\nwe ask whether the district court abused its discretion in find-\ning no just reason to delay the appeal of the claim that was\nfinally decided. The goal of our analysis is to prevent “piece-\nmeal appeals” involving the same facts. Id. (quoting Curtiss-\nWright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980)).\n Our inquiry starts and stops at the first step. The Rule\n54(b) order was improper as to the breach-of-tariff claims be-\ncause it did not constitute a final judgment. When it comes to\n\f8 No. 18-2747\n\ndetermining if a judgment is truly final, we consider whether\nthere is too much factual overlap with claims remaining in the\ndistrict court. VDF FutureCeuticals, 792 F.3d at 845. Even if\nmultiple claims arise from the same set of facts, we consider\nwhether they are based on “entirely different legal entitle-\nments yielding separate recoveries” or “different legal theo-\nries aimed at the same recovery”—the latter of which makes\nRule 54(b) partial final judgment improper. Marseilles Hydro\nPower, LLC v. Marseilles Land & Water Co., 518 F.3d 459, 464\n(7th Cir. 2008). Where, as here, “final” claims may yet be un-\ndercut by a claim still pending before the district court, there\nmay be unacceptable overlap. VDF FutureCeuticals, 792 F.3d\nat 845.\n The breach-of-tariff claims before us now and those stayed\nin the district court are factually and legally intertwined.\nReaching the merits of this appeal would require, in part, ad-\ndressing the lawfulness of Peerless’s tariffs and the interpre-\ntation of both the tariff and unsettled areas of federal telecom-\nmunications law. Verizon asks us to determine whether a tar-\niff that does not meet requirements for access stimulators can\never be enforceable. It also asks us to determine whether Peer-\nless’s VoIP and two-stage calling billing practices comply\nwith thorny areas of FCC and D.C. Circuit precedent. These\nare the exact same issues that form the basis of Verizon’s\ncounterclaims, which have been referred to and are pending\nresolution before the FCC. If the FCC decides those issues in\nfavor of Verizon, then Peerless may not have been entitled to\ncollect on its invoices. If Peerless was not entitled to collect,\nthen the district court’s entry of judgment was for naught.\nAnd, regardless of how the FCC decides, the unsuccessful\nparties could appeal the district court’s application of that de-\ncision to the currently stayed counterclaims. It is therefore\n\fNo. 18-2747 9\n\npossible, indeed likely, that the very same facts and issues will\narise before us again once the district court resolves Verizon’s\ncounterclaims. This scenario is exactly the type of judicial in-\nefficiency that makes Rule 54(b) partial final judgment im-\nproper here. Gen. Ins., 644 F.3d at 379.\n True, an argument that a tariff is unreasonable or unlawful\nmust be brought as a counterclaim and can be adjudicated\nseparately from a collection action, including for Rule 54(b)\npurposes. 4 See Reiter v. Cooper, 507 U.S. 258, 266 (1993); Balti-\nmore & Ohio Chicago Terminal R. Co. v. Wisconsin Cent. Ltd., 154\nF.3d 404, 407 (7th Cir. 1998). And as Peerless asserts, Verizon’s\nchallenge to the tariff rates on the grounds that Peerless is an\naccess stimulator is an unreasonable-rate challenge which\nmay, in certain circumstances, be stayed while the remainder\nof the collection action goes forward.\n But the rest of Verizon’s challenges are to Peerless’s com-\npliance with its own tariff rates and with federal communica-\ntions law—not challenges to the tariffs themselves. Verizon\nargues that Peerless billed end-office switching rates for rout-\ning VoIP calls despite the fact that routing such calls does not\nmeet the definition of end-office switching as defined in the\ntariff or by law. 5 Verizon also argues that, in violation of the\n\n\n 4\n This is a function of the filed-rate doctrine, the details of which we\nneed not go into in this opinion.\n 5\n Whether routing VoIP calls is the “functional equivalent” of end-of-\nfice switching is an area of uncertainty in federal telecommunications law,\nhence the district court’s referral of this issue to the FCC. See AT&T Corp.\nv. Fed. Commc’ns Comm’n, 841 F.3d 1047, 1049 (D.C. Cir. 2016) (vacating an\nFCC declaratory ruling that VoIP providers and LECs partner to provide\nthe functional equivalent of end-office switching).\n\f10 No. 18-2747\n\ntariff and telecommunications law, Peerless billed terminat-\ning switched-access rates for routing calls to two-stage calling\nproviders, such as calling card services, even though those\ncalls continue and are terminated somewhere else, for exam-\nple, internationally. These complicated concepts can be dis-\ntilled into a simple allegation: Peerless is billing Verizon for\nservices it is not providing. And, unlike a pure unreasonable-\nrate challenge, such an allegation can serve as a defense, not\njust a counterclaim.\n Yet, the district court conflated Verizon’s defenses and\ncounterclaims. It overlooked that the VoIP and two-stage ar-\nguments serve not only as a basis to recover past-paid\namounts under Verizon’s counterclaims; they also serve as\ndefenses to the allegations that Verizon owes outstanding\namounts to Peerless—defenses that would undercut any\namount that Verizon purportedly owes Peerless. The district\ncourt must resolve any defenses in order to fully adjudicate\nPeerless’s breach-of-tariff claims and determine what Peerless\nis legally entitled to bill Verizon for. But here, it cannot—like\nVerizon’s counterclaims, the resolution of Verizon’s defenses\nturns on the issues pending before the FCC. That these de-\nfenses cannot yet be resolved shows again that Rule 54(b) par-\ntial final judgment is inappropriate here.\n Because the district court erred in granting partial final\njudgment on Peerless’s breach-of-tariff claims, we vacate the\nRule 54(b) judgment on Counts III through V and XI. Under\n28 U.S.C. § 1291, this court has jurisdiction only over “final\ndecisions,” therefore, the appeal as to these counts must be\ndismissed for want of jurisdiction.\n\fNo. 18-2747 11\n\nB. The Contract Claims\n Verizon does not contend, and we do not conclude, that\nthe district court erred in ordering Rule 54(b) partial final\njudgment for Counts I and II, which alleged a breach of the\nTandem Service Agreement. The amounts Verizon allegedly\nowes under the agreement are not tied to Peerless’s tariffs,\nthey are based on discounted, contractually agreed-upon\nrates. Thus, unlike the tariff claims, these breach-of-contract\nclaims “rely on entirely different legal entitlements” than the\ntariff-related counterclaims still pending in the district court.\nMarseilles, 518 F.3d at 464. Judgment on Counts I and II is\nproperly considered final.\n The district court did not specifically address the breach-\nof-contract claims in concluding that there was no just reason\nto delay final judgment. Understandably so—the tariff claims\nmade up the vast majority of this nearly $50 million complex\nlawsuit. But the district court’s determination that Peerless’s\ninterest in prompt payment outweighed the risk that Verizon\nmay be entitled to a refund presumably applied to the con-\ntract claims as well as the tariff claims. That was not an abuse\nof discretion. It is unclear how long the remaining issues will\nbe pending before the FCC, delaying the resolution of these\nentirely separate breach-of-contract counts. Therefore, Rule\n54(b) partial final judgment was appropriate on Counts I and\nII, and we have jurisdiction to address the merits of Verizon’s\nappeal as to these counts.\n Verizon argues that the district court erred in granting\nsummary judgment for Peerless on these counts. We review\ngrants of summary judgment de novo. “Summary judgment is\nappropriate when there is no genuine dispute as to a material\nfact.” Estate of Jones v. Children’s Hosp. & Health Sys. Inc.\n\f12 No. 18-2747\n\nPension Plan, 892 F.3d 919, 923 (7th Cir. 2018). When both par-\nties have moved for summary judgment, “we construe all in-\nferences in favor of the party against whom the motion under\nconsideration is made.” Schlaf v. Safeguard Prop., LLC, 899 F.3d\n459, 465 (7th Cir. 2018) (quoting Hendricks-Robinson v. Excel\nCorp., 154 F.3d 685, 692 (7th Cir. 1998)).\n The district court concluded that summary judgment for\nPeerless was appropriate because, supposedly, Verizon did\nnot dispute that it had failed to pay charges owed under the\nTandem Service Agreement—Verizon disputed only the\namount of damages. The record says otherwise. In the pro-\nceedings below, Verizon acknowledged Peerless’s allegations\nthat it owed outstanding amounts under the Tandem Service\nAgreement. Verizon responded, however, that Peerless had\nfailed to specifically identify any unpaid invoices. Verizon\nalso submitted an affidavit from a Senior Manager of Invoice\nValidation attesting that she was unaware of which invoices\npurportedly reflected any outstanding amount. Viewing the\nfacts in the light most favorable to Verizon, as we must, the\nconflicting evidence creates a genuine dispute as to whether\nVerizon owes any unpaid amount under the Tandem Service\nAgreement.\n Peerless argues that because Verizon and Peerless jointly\nstipulated to a damages amount for the breach-of-contract\nclaims, Verizon cannot now challenge the district court’s de-\ntermination of liability on these counts. Peerless is incorrect,\nthe stipulation is irrelevant. By that point, the district court\nhad already found against Verizon on the issue of liability,\nand we allow parties to challenge a determination of liability\neven if they later stipulate to damages. See, e.g., Pitcher v. Prin-\ncipal Mut. Life Ins. Co., 93 F.3d 407, 411 (7th Cir. 1996). We\n\fNo. 18-2747 13\n\nconclude that the district court erred in its liability determina-\ntion and improperly granted summary judgment for Peerless\non Counts I and II, alleging a breach of the Tandem Service\nAgreement.\n III. Conclusion\n The district court erred in entering partial final judgment\nunder Rule 54(b) on Counts III through V and XI. We\nVACATE the Rule 54(b) judgment on those counts and\nDISMISS the appeal of those counts for want of jurisdiction.\nWe also conclude that the district court erred in granting sum-\nmary judgment on Counts I and II, and we REVERSE and\nREMAND for further proceedings on those counts consistent\nwith this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369471/", "author_raw": "ST. EVE, Circuit Judge"}]}	WOOD	BRENNAN	ST EVE	1	{"WOOD": ", Chief", "BRENNAN": ", Cir cuit", "ST EVE": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592218/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,219		Danny Ruark v. Union Pacific Railroad Compan	2019-02-20	17-2429	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2429\nDANNY R. RUARK,\n Plaintiff-Appellant,\n v.\n\nUNION PACIFIC RAILROAD COMPANY,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Illinois.\n No. 3:14-cv-00329-DRH-RJD — David R. Herndon, Judge.\n ____________________\n\n ARGUED DECEMBER 5, 2018 — DECIDED FEBRUARY 20, 2019\n ____________________\n\n Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.\n ROVNER, Circuit Judge. The Federal Employers Liability\nAct (FELA), 45 U.S.C. §§ 51-60, was enacted more than a hun-\ndred years ago to compensate railroad employees for injuries\nthey receive on the job. Ruark was an employee of the Union\nPacific Railroad when a hydraulic rail drill malfunctioned and\nsprayed him with hot oil. He sought relief under FELA using\nthe legal doctrine of “res ipsa loquitur,” a doctrine that asks a\nfinder of fact to infer liability when (as the Latin is often\n\f2 No. 17-2429\n\ntranslated) “the thing speaks for itself.” Because of the bur-\nden-shifting nature of the doctrine, it requires some baseline\nconditions—namely that the defendant was in control of the\ninstrumentality that caused the injury and that the plaintiff\nwas not also negligent. The district court found that these con-\nditions were not met and thus the jury should not be in-\nstructed that they could assume that “the matter spoke for it-\nself” under the doctrine. We agree and find that the district\ncourt did not abuse its discretion by refusing to grant Ruark a\ncontinuance before trial. We affirm on both points.\n I.\n On September 22, 2013, Ruark was working as a machine\noperator on rail maintenance on the Union Pacific Railroad\nusing a hydraulic rail drill to drill holes into the rails. To use\nthe drill, the operator clamps it in place on the rail and then\nuses a lever to start the drill. When the drill is finished, the\noperator pushes the lever back to stop the drill and retract the\nbit, and then unclamps it from the rail. The drill is powered\nby hydraulics which requires that it connect to machinery by\nhoses carrying fluid. Ruark began working at six o’clock in\nthe morning and was involved in hooking the drill up to the\nhydraulic lines before the work began. He used the drill\nthroughout the day, attaching it to the rail, pushing the lever\nto start the drilling, pushing the lever to stop the drill and re-\ntract it, and then detaching it from the rail. Ruark used the\nmachine to drill five or six holes that day, including the last\none, and had not noticed any leaking hydraulic fluid or other\nmalfunction. As he drilled the last hole, Ruark reached down\nto retract the drill bit out of the hole and turn the drill off when\n\fNo. 17-2429 3\n\nhe heard a “boom.” 1 Hot fluid sprayed over him, including\nin his eyes. Ruark jerked upward, twisted, and stumbled\nbackward. After Ruark informed his supervisor that the drill\nhad exploded, the supervisor gave him napkins to wipe off\nthe oil and Ruark declined further medical attention. The su-\npervisor sent him home to clean up and told him to return to\nwork the next day and report how he was feeling. Ruark re-\nturned to work the following day, but did not participate in\nmuch of the work, because, as he stated at his deposition, “it\nhurt too bad.” Ruark’s Short App. at 88. Ruark went home\nthat evening and made an appointment to see his regular\nnurse practitioner the next day. The form he completed at her\noffice stated that he was experiencing “sinus and stomach\nproblems.” Ruark’s Short App. at 125. Ruark did not return to\nwork after September 23 and was pulled out of service a few\ndays later because he had been convicted of a felony unre-\nlated to the workplace accident. On October 2, Ruark com-\npleted an accident report form based on the September 22 in-\ncident. On March 13, 2014, Ruark filed suit under FELA claim-\ning injuries from the incident with the rail drill.\n Ruark began a prison sentence a short while later (on June\n28, 2016), a fact we note because it interrupted Ruark’s repre-\nsentation and trial preparation. Two months into Ruark’s in-\ncarceration (the end of August, 2016), his first set of lawyers\nmoved to withdraw, asserting that it was impossible to\n\n1 Because this is an appeal from a grant of judgment as a matter of law\npursuant to Fed. R. Civ. P. 50(a)(1), we note the facts in the light most fa-\nvorable to the party against whom judgment has been entered—in this\ncase, Ruark. Equal Employment Opportunity Comm'n v. Costco Wholesale\nCorp., 903 F.3d 618, 621 (7th Cir. 2018).\n\f4 No. 17-2429\n\nrepresent him in this tort matter while he was incarcerated.\nHis new counsel took over a few months later (early Decem-\nber, 2016) and the district court scheduled a pretrial confer-\nence for the end of February. At that conference, the judge de-\nnied a pending motion for a continuance, reasoning that the\ncase had been pending for almost three years, Ruark had been\nwell represented by his initial counsel, he had been given a\nnormal scheduling order, and the fact of his incarceration was\nnot cause to reopen exhausted deadlines and allow Ruark to\nbegin the discovery process anew. Despite the denial, the dis-\ntrict court judge did permit some planned discovery to con-\ntinue. He allowed Ruark’s counsel to take his client’s trial tes-\ntimony by video deposition and to depose Ruark’s treating\nphysician. He also stated that he would consider a new mo-\ntion to reopen discovery once a trial date was set and the new\ncounsel became more familiar with the case. Ruark’s lawyer,\nhowever, did not pursue that option. The trial began on June\n13, 2017. Ruark proceeded on a theory of negligence based on\nres ipsa loquitur. Once the district court determined that the\nplaintiff had not met the requirements for use of the doctrine,\nit granted Union Pacific’s motion for judgment as a matter of\nlaw, on June 14, 2017, a ruling which we review de novo. Mar-\ntin v. Milwaukee Cty., 904 F.3d 544, 550 (7th Cir. 2018). Judg-\nment as a matter of law is proper if “a reasonable jury would\nnot have a legally sufficient evidentiary basis to find for the\nparty on that issue.” Id. (quoting Fed. R. Civ. P. 50(a)(1)). We\nreview the district court’s decision to deny the motions for a\ncontinuance and to reopen discovery for an abuse of discre-\ntion.\n\fNo. 17-2429 5\n\n II.\n A. Judgment as a matter of law on the FELA claim.\n This case involves an interplay between FELA and the\ndoctrine of res ipsa loquitur. While FELA provides the cause\nof action under federal statute for injuries received while in\nthe employ of the railroad, the plaintiff here, Ruark, went\nabout hoping to prove that liability by using the doctrine of\nres ipsa loquitur. Res ipsa loquitur describes not a substantive\nclaim, but a manner of proceeding on that claim. As we will\ndescribe in more detail below, it is “a shortcut to a negligence\nclaim.” Blasius v. Angel Auto., Inc., 839 F.3d 639, 649 (7th Cir.\n2016) (citing Maroules v. Jumbo, Inc., 452 F.3d 639, 642 (7th Cir.\n2006)). Thus whether Ruark could proceed below depended\non whether he had met the prerequisites for a res ipsa claim.\nIn short, FELA provides the substantive framework for\nRuark’s claim but the evidentiary theory under which he\nopted to proceed is that rail drills do not, in the ordinary\ncourse of events, spray oil on their users. As we will discuss,\nthe cost of admission to this plaintiff-friendly, burden-shifting\ndoctrine requires a plaintiff to make some significant prelim-\ninary showings.\n As for FELA, it may be true, as Ruark argues, that FELA\nrequires a lower threshold for submitting matters to the jury.\nFELA is a remedial statute, lowering the burden of proof so\nthat an employee might meet it if “employer negligence\nplayed any part, even the slightest, in producing the injury.”\nRogers v. Missouri Pac. R.R., 352 U.S. 500, 506 (1957); Brown v.\nBurlington N. Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014).\n\f6 No. 17-2429\n\n This lowered threshold, however, does not mean that an\nemployer is responsible for any injury that occurs in the\ncourse of employment. As the Supreme Court explained:\n That FELA is to be liberally construed, however,\n does not mean that it is a workers’ compensa-\n tion statute. We have insisted that FELA does\n not make the employer the insurer of the safety\n of his employees while they are on duty. The ba-\n sis of his liability is his negligence, not the fact\n that injuries occur.\nConsol. Rail Corp. v. Gottshall, 512 U.S. 532, 543–44, 114 S. Ct.\n2396, 2404 (1994) (internal citations omitted).\n Ruark, therefore, is correct that a FELA case should go to\na jury if even the slightest of facts support a finding of negli-\ngence. As the plaintiff has established in the multitude of\nFELA cases it has set forth in its brief (none of which, we note\nhowever, is a claim brought on the theory of res ipsa loquitur),\nthe amount of evidence required to submit a FELA case to the\njury is “scarcely more substantial than pigeon bone broth.”\nRuark Brief at 11 (citing Green v. CSX Transp., Inc., 414 F.3d\n758, 766 (7th Cir. 2005)). But, “[a]s light as this burden is, the\nplaintiff must still present some evidence of negligence …\nspecifically, the plaintiff must offer evidence creating a genu-\nine issue of fact on the common law elements of negligence,\nincluding duty, breach, foreseeability, and causation.” Green,\n414 F.3d at 766. See also Tennant v. Peoria & P. U. Ry. Co., 321\nU.S. 29, 32, 64 S. Ct. 409, 411 (1944) (“[p]etitioner [is] required\nto present probative facts from which the negligence and the\ncausal relation could reasonably be inferred.”). A FELA plain-\ntiff “is not impervious to summary judgment. If the plaintiff\npresents no evidence whatsoever to support the inference of\n\fNo. 17-2429 7\n\nnegligence, the railroad’s summary judgment motion is\nproperly granted.” Lisek v. Norfolk & W. Ry. Co., 30 F.3d 823,\n832 (7th Cir. 1994). And if the plaintiff opts to proceed on a\ndoctrine that the injury speaks for itself, as opposed to some\nother theory of liability, he must meet the requirements to\nproceed on that theory, just as he would have been required\nto offer evidence creating a genuine issue of fact on duty,\nbreach, foreseeability, and causation if Ruark’s theory of the\ncase had been an ordinary negligence claim. See Green, 414\nF.3d at 766. In this case, Ruark’s theory of the case is that Un-\nion Pacific’s negligence should be inferred under the doctrine\nof res ipsa loquitur, and so we turn now to the requirements\nfor the evidence he was required to offer to present his case to\na jury.\n Ordinarily negligence may not be inferred from the mere\nfact that an injury occurred, but the doctrine of res ipsa loqui-\ntur recognizes that “in some situations an occurrence is so un-\nusual that, absent a reasonable justification, the person in con-\ntrol of the situation should be held responsible.” Maroules, 452\nF.3d at 642. The doctrine of res ipsa loquitur permits an infer-\nence of liability on the part of the defendant if the plaintiff can\ndemonstrate that certain conditions existed making it likely\nthat the defendant was responsible for the injury. The doc-\ntrine means “the matter speaks for itself” and thus, as the Su-\npreme Court explained,\n When a thing which causes injury, without fault\n of the injured person, is shown to be under the\n exclusive control of the defendant, and the in-\n jury is such, as in the ordinary course of things,\n does not occur if the one having such control\n uses proper care, it affords reasonable evidence,\n\f8 No. 17-2429\n\n in the absence of an explanation, that the injury\n arose from the defendant’s want of care.\nJesionowski v. Boston & M.R.R., 329 U.S. 452, 456, 67 S. Ct. 401,\n403 (1947) (citing San Juan Light & Transit Co. v. Requena, 224\nU.S. 89, 98–99, 32 S. Ct. 399, 401 (1912)). And because courts\nare fond of enumerated lists, we often state the prerequisites\nfor a res ipsa claim as follows: (1) The injury must be one that\ndoes not ordinarily occur absent negligence; (2) the injury\nmust have been caused by some agency or instrumentality in\nthe exclusive control of the defendant; and (3) the injury must\nnot have been due to any contribution or voluntary activity\non the part of the plaintiff. Robinson v. Burlington N. R.R. Co.,\n131 F.3d 648, 652 (7th Cir. 1997) (citing Stillman v. Norfolk & W.\nRy, 811 F.2d 834, 836–37 (4th Cir. 1987)).\n Once the plaintiff has met the prerequisites listed above,\nthe reward is high. She is entitled to have the court instruct\nthe jury that it may draw an inference of negligence. That is\nnot to say that the jury would be compelled to find negli-\ngence—just that the facts of the occurrence warrant such an\ninference. Jesionowski, 329 U.S. at 457, 67 S. Ct. at 404 (citing\nSweeney v. Errving, 228 U.S. 233, 240, 33 S. Ct. 416, 418 (1913)).\n A plaintiff may use the doctrine of res ipsa loquitur in a\nFELA case. See Robinson, 131 F.3d at 652. And in this case, the\nlast two factors in the list are the ones at play—that is whether\nthe Railroad had exclusive control of the drill or not, and\nwhether any of Ruark’s injuries could be attributed to his own\nactions. And these factors are, of course, really two sides of\nthe same coin. In order for a plaintiff to show that the defend-\nant was responsible for the accident, he must preclude other\npossible causes of the injury—including his own contribution.\nSee Jesionowski, 329 U.S. at 454, 67 S. Ct. at 402.\n\fNo. 17-2429 9\n\n In this case, the key question, therefore, was whether\nRuark’s injury was caused by some agency or instrumentality\nin the exclusive control of the Railroad. The district court con-\ncluded that there was no question that the drill was not in the\nexclusive control of the Railroad, and we agree. As Ruark tes-\ntified, he was touching and using the drill when the hydraulic\nfluid came squirting out. He was involved in hooking the rail\ndrill to the hydraulic lines on the machine that day, and he\nused the rail drill to drill at least four or five holes. The drill\nwas operating properly when he first began using it and\nworked without incident throughout the day up until the\ntime of the accident. In fact, at the hearing on Union Pacific’s\nmotion for judgment as a matter of law, Ruark’s counsel ad-\nmitted that he had partial control over the drill.\n Court: We know that he—at least he was, in\n part, in control of this drill, correct?\n Ruark’s counsel: Correct.\n As the district court concluded, “in light of the plaintiff’s\ntestimony about the control that he had in this case, hooking\nup the hoses, hooking up the hoses to the drill, hooking up\nthe drill to the rail, pulling the lever in and out, turning the\ndrill on and off, I find res ipsa loquitur does not apply.” R. 110\nat 28. We agree.\n Ruark attempts to nudge the control factor in Ruark’s fa-\nvor in two ways. First, Ruark claims that the requirement of\n“exclusive control” is not as exclusive as the phrase might\nsuggest. Second, he argues that Union Pacific had a “non-del-\negable duty to maintain its equipment in safe working order\nand to provide Ruark with a safe place in which to work and\nsafe equipment.” Ruark Brief at 21.\n\f10 No. 17-2429\n\n Turning to exclusive control first, Ruark argues that the\ndoctrine is applicable even where there is some evidence that\nthe “plaintiff’s participation in the employer’s activity might\nhave produced the accident.” Ruark Brief at 6. For this prop-\nosition, Ruark cites Colmenares Vivas v. Sun Alliance. Ins. Co.,\n807 F.2d 1102 (1st Cir. 1986). In Colmenares Vivas, the plaintiffs\nwere injured when an airport escalator handrail malfunc-\ntioned causing them to tumble down the stairs. The court had\nto decide whether the doctrine of res ipsa loquitur could be\napplied where the Ports Authority of Puerto Rico owned and\nmaintained the airport but contracted with Westinghouse to\nmaintain the escalator. Id. at 1105-06. In deciding that res ipsa\nloquitur could be applied in the case against the airport au-\nthority, the court used the following language, on which\nRuark relies:\n Thus, res ipsa loquitur applies even if the de-\n fendant shares responsibility with another, or if\n the defendant is responsible for the instrumen-\n tality even though someone else had physical\n control over it. … It follows that a defendant\n charged with a nondelegable duty of care to\n maintain an instrumentality in a safe condition\n effectively has exclusive control over it for the\n purposes of applying res ipsa loquitur.\nColmenares Vivas, 807 F.2d at 1106 (internal citations omitted).\nBut in Colmenares Vivas, the court was deciding which of two\npotential tort feasors (in a non-FELA case) effectively had con-\ntrol over the escalator. There was no question that the injured\nparties themselves had no control over the escalator. Id. at\n1107. In this case, in contrast, the question is whether the\nplaintiff may have contributed to the accident, and the\n\fNo. 17-2429 11\n\nSupreme Court and this court have been clear that one cannot\nemploy the doctrine of res ipsa loquitur where there is a pos-\nsibility of negligence on the part of the injured plaintiff. Rob-\ninson, 131 F.3d at 653–54. The injury must have occurred\n“without fault of the injured person.” Jesionowski, 329 U.S. at\n456–57, 67 S. Ct. at 403-04 (1947).\n Ruark is correct that a court can still give an instruction on\nres ipsa loquitur when the plaintiff’s allegedly negligent acts\nare “part of the employer’s general activity.” Robinson, 131\nF.3d at 655, n. 6. But this is only true if a jury can first eliminate\nthe possibility that the plaintiff’s activity contributed to the\ninjury. Jesionowski, 329 U.S. at 456–57, 67 S. Ct. at 403–04; Rob-\ninson, 131 F.3d at 653–54. What matters is whether the injured\nperson participated in the operations in a manner that con-\ntributed to the accident—not merely whether he participated\nin the operations of the injuring instrumentality. Jesionowski,\n329 U.S. at 457, 67 S. Ct. at 404. Robinson, 131 F.3d at 655 & n.6.\nSee also Potthast v. Metro-N. R.R. Co., 400 F.3d 143, 151 (2d Cir.\n2005) (“It is this consideration of inappropriate interaction, ra-\nther than whether there ever was or was not any interaction\ninvolving the plaintiff and the instrumentality of the injury,\nthat constitutes the salient criterion.”) (emphasis in original).\n And so, for example, if a jury concludes that an injured\nbrakeman’s activities—throwing a switch and giving a sig-\nnal—did not contribute to the accident where he was thrown\nfrom a rail car and killed, the defendant railroad qualifies as\nthe exclusive controller of the factors which caused the injury.\nJesionowski, 329 U.S. at 458, 67 S. Ct. at 404. The jury may then\nproceed on a res ipsa loquitur instruction, inferring negli-\ngence on the part of the railroad. Id. In contrast, a railroad em-\nployee who is not riding in the proper position while\n\f12 No. 17-2429\n\nswitching railcars may have contributed to her own injuries\nand thus is not entitled to a res ipsa instruction. See Robinson,\n131 F. 3d at 655. Nor is a railroad worker plaintiff entitled to\nsuch an instruction if he made the decision to attempt to free\na jammed forklift load by pulling on it while standing beneath\nit. Stillman, 811 F.2d at 837. See also McGinnis v. Consolidated\nRail Corp., Nos. 96-2571, 97–1009, 1997 WL 457530, at 3 (4th\nCir. Aug. 12, 1997) (railroad worker who lost his balance and\ngrabbed a coupler which then crushed his hand could not re-\ncover on a res ipsa loquitur theory because of his contribution\nto or voluntary activity in the accident); Mandrgoc v. Patapsco\n& Back Rivers R.R. Co., No. 95-3123, 1996 WL 477253, at 5 (4th\nCir. Aug. 23, 1996) (an employee had partial control of the in-\nstrumentality of injury because he operated the switch and\nelected to jump from the car in anticipation of the derailment);\nSanta Maria v. Metro-North Commuter R.R., 81 F.3d 265, 272 (2d\nCir. 1996) (holding res ipsa loquitur instruction was inappro-\npriate because employee had partial control over a cot, sup-\nplied by the Railroad, which collapsed while the employee\nwas sleeping on it).\n Ruark argues that there was “no evidence that Plaintiff op-\nerated the drill in any negligent manner.” Ruark Reply Brief\nat 3. This is, of course, correct, but it misunderstands the rela-\ntionship between the second and third requirements of a res\nipsa loquitur claim and the plaintiff’s burden. Recall that the\ndoctrine of res ipsa loquitur shifts the burden to the defendant\nand allows a jury to infer negligence. This is not the usual way\nour legal system proceeds and places a heavy thumb on the\nplaintiff’s side of the scale. Before that thumb can be placed,\nthe doctrine requires that a plaintiff make a significant show-\ning that he can eliminate other possible explanations for the\ninjury—aside from the employer’s negligence. The\n\fNo. 17-2429 13\n\nprerequisites, therefore, are “rigidly defined.” Jesionowski, 329\nU.S. at 456, 67 S. Ct. at 403. One of those prerequisites is that\n“the defendant must have exclusive control of all the things\nused in an operation which might probably have caused in-\njury.” Jesionowski, 329 U.S. at 456, 67 S. Ct. at 403. If the em-\nployer is not in control of the instrumentality of the injury\nthen there is a greater chance that the person or thing that is,\nin fact, in control of that instrumentality caused the injury. Be-\ncause Ruark controlled the drill and its set up, his actions\ncould have been the cause of his injury. That is not to say that\nthey were. Ruark is correct that there is no evidence that he\noperated the drill negligently. There need not be. But without\na demonstration that Union Pacific had control of the instru-\nmentality of the injury, we cannot employ a doctrine that as-\nsumes Union Pacific’s negligence by mere fact of the accident\nitself. As the Supreme Court put it:\n there can be no application of the doctrine of res\n ipsa loquitur if other causes than the negligence\n of the defendant, its agents or servants, might\n have produced the accident[.] [T]he plaintiff …\n has the burden to exclude the operation of such\n causes by a fair preponderance of the evidence\n before the rule can be applied. This is so because\n if there are other causes than the negligence of\n the defendant that might have caused the acci-\n dent, the defendant cannot be said to be in ex-\n clusive control—one of the prerequisites to the\n application of the rule here invoked.\nJesionowski, 329 U.S. at 454, 67 S. Ct. at 402 (1947).\n Here the district court concluded that “it isn’t just that the\nplaintiff had some role, but that he was in control of this tool,\n\f14 No. 17-2429\n\nthis instrumentality, and … more so than the railroad.” R. 110\nat 29. And thus the court concluded that Ruark had not pre-\nsented sufficient evidence that the Railroad controlled the\ndrill in order to meet the prerequisites for a res ipsa loquitur\ninstruction. R. 110 at 24. We agree.\n Ruark’s brief also states, without argument, that “Union\nPacific has a non-delegable duty to maintain its equipment in\nsafe working order and to provide Ruark with a safe place in\nwhich to work and safe equipment.” Ruark Brief at 21. This\nseems to be just another way of saying that a jury can infer\nnegligence by an employer any time an accident occurs. If this\nposition were true, then in every FELA case, the railroad\nwould be assumed to have complete control over everything\nin the workplace regardless of the plaintiff’s contributory neg-\nligence, and every FELA case would warrant a res ipsa loqui-\ntur instruction. We know, however, that is not so. See, e.g.,\nRobinson, 131 F. 3d at 654; Stillman, 811 F.2d at 837; Santa Ma-\nria, 81 F.3d at 272; McGinnis, 1997 WL 457530, at 3; Mandrgoc,\n1996 WL 477253, at 5.\n Ruark failed to meet the prerequisites for a res ipsa loqui-\ntur instruction, and because this was his sole theory of the\ncase, the district court correctly granted Union Pacific’s mo-\ntion for judgment as a matter of law.\n B. The denial of a request for a continuance.\n As Ruark’s FELA case ambled along, so too did the crimi-\nnal claims against him in his unrelated criminal case. After he\nwas incarcerated in that matter, his lawyers moved to with-\ndraw, claiming it was impossible to represent him under the\n\fNo. 17-2429 15\n\ncircumstances. (R. 41, R. 43, R. 39 at ¶ 7, R. 42 at ¶ 6).2 Once\nRuark’s new counsel first appeared in the case, the judge set\na pretrial conference for two months later. Sixteen days before\nthat conference, Ruark’s counsel first requested to continue\nthe conference and trial. He did not expressly request that the\ncourt reopen discovery, but he noted that he wanted to take\nstatements or depositions of multiple individuals and wished\nto hire an economist. The Railroad argued that all of those in-\ndividuals had been disclosed and were known to the plaintiff\nsince 2014 and could have been deposed in a timely manner.\nThe district court denied the motion.\n Ruark argues that the district court abused its discretion\nby denying the motion to continue. A district court, however,\nmust have a wide berth to manage caseloads and dockets and\ntherefore “[a] district court’s exercise of its discretion in\nscheduling trials and granting or denying continuances is ‘al-\nmost standardless.’”United States v. Egwaoje, 335 F.3d 579,\n587–88 (7th Cir. 2003) (citing United States v. Moya-Gomez, 860\nF.2d 706, 742 (7th Cir. 1988)). See also, Flint v. City of Belvidere,\n791 F.3d 764, 768 (7th Cir. 2015). And in this case, the district\ncourt judge managed his discretion reasonably. As explana-\ntion for denying the motion for the continuance at the Febru-\nary 6 pretrial conference, the judge noted that Ruark had a\nnormal scheduling order, competent former counsel, and that\nthe trial had already been continued two or three times\n\n\n2 Ruark’s brief states that, “[t]he district judge seemed to begrudge that\nRuark was serving a sentence on an unrelated issue … .” Ruark Brief at 24.\nIt is worth noting that the district court did not seem particularly con-\ncerned about the logistical problems of deposing Ruark in prison, noting\nthat the judge had been involved in a similar case where a plaintiff who\nwas in prison needed to be deposed. R. 109 at 12.\n\f16 No. 17-2429\n\npreviously. Moreover, he did not deny definitively Ruark’s\nmotion for a continuance, but rather he denied it for the time\nbeing, encouraging Ruark’s counsel to file such a motion if it\nbecame necessary later in the proceedings:\n … as you get more familiar with your case, I am\n open to you filing a motion to—[a] formal mo-\n tion to continue that trial date, setting out the\n kind of things you talked about, which defend-\n ant can respond to, and I’ll rule on that motion,\n you know, and see if you come up with any-\n thing that might convince me.\nR. 109 at 15-16. Additionally, on February 22, 2017, the district\ncourt entered a formal written order that stated “[u]pon a trial\ndate being set, Plaintiff is granted leave to file a formal motion\nto continue, if appropriate.” R. 58.\n Loss of counsel is not a per se reason that a district court\nmight reopen discovery. Like other factors it is one of many\nthat a court might consider in exercising its broad discretion\nto grant or deny a continuance. See, e.g., Egwaoje, 335 F.3d at\n588 (considering plaintiff’s knowledge of the trial schedule,\nhis repeated requests for a speedy trial, multiple rescheduling\nafter the plaintiff fired counsel, likelihood of prejudice, com-\nplexity of case, diligent use of trial preparation time, and in-\nconvenience and burden to the court and parties); Washington\nv. Sherwin Real Estate, Inc., 694 F.2d 1081, 1085–86, 1088–89 (7th\nCir. 1982) (affirming the denial of continuance where the\nplaintiffs’ lawyer withdrew on the day of trial, the case had\nbeen pending for three years, and the district court permissi-\nbly concluded that “no further delay could be tolerated.”). In\nthis case, however, the judge recognized that the change of\ncounsel might be a hindrance to preparation and advised\n\fNo. 17-2429 17\n\nRuark’s counsel that he would keep an open mind in consid-\nering a new motion to continue.\n Plaintiff’s counsel, however, never filed a motion to con-\ntinue the June trial date or to reopen discovery, and instead\nproceeded to trial. Even if the judge had erred (and for the\nreasons asserted above, we find that he was well within his\ndiscretion), Ruark cannot show any prejudice from the district\ncourt’s ruling. He knew the identities of the individuals he\nwanted to interview, but he appears to have abandoned any\nattempt to interview them or reopen discovery.\n III.\n In short, we conclude that the district court correctly en-\ntered judgment as a matter of law for the Railroad as Ruark\nfailed to satisfy the prerequisites for the theory of negligence\nunder which he pursued the case—res ipsa loquitur. The dis-\ntrict court did not abuse its discretion in refusing to grant a\nmotion for a continuance. We therefore AFFIRM the judg-\nment in all respects.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369472/", "author_raw": "Ilana Kara Diamond Rovner"}]}	FLAUM	ROVNER	SCUDDER	1	{"FLAUM": ", Circuit", "ROVNER": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592219/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,244		Peerless Network, Inc. v. MCI Communications Services, I	2019-02-20	18-2747	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2747\nPEERLESS NETWORK, INC., et al.,\n Plaintiffs-Appellees,\n v.\n\nMCI COMMUNICATIONS SERVICES, INC.,\nVERIZON SERVICES CORP., and\nVERIZON SELECT SERVICES, INC.,\n Defendants-Appellants.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:14-cv-07417 — Thomas M. Durkin, Judge.\n ____________________\n\n ARGUED JANUARY 14, 2019 — DECIDED FEBRUARY 20, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir-\ncuit Judges.\n ST. EVE, Circuit Judge. This case takes us into the complex\nworld of telecommunications, but the question we confront is\nsimple: Was the district court correct to grant partial final\njudgment under Federal Rule of Civil Procedure 54(b) on\nsome claims, despite their significant factual overlap with\n\f2 No. 18-2747\n\npending claims? We conclude that it was not. We also con-\nclude that a genuine issue of fact persists with respect to cer-\ntain breach-of-contract claims. We therefore vacate the Rule\n54(b) judgment on certain counts, dismiss in part for lack of\njurisdiction, and otherwise reverse and remand.\n I. Background\n Local Exchange Carriers (“LECs”) and Interexchange Car-\nriers (“IXCs”) are types of telecommunications service pro-\nviders. They work together to enable phone users to make\nlong-distance calls. LECs operate in a limited geographical\narea, IXCs transport calls across LECs to allow customers to\nmake calls to geographic areas outside their own. As the dis-\ntrict court succinctly described:\n A common example of this would be a long-distance\n call from Chicago to St. Louis. In that example,\n AT&T Illinois (the incumbent LEC in Chicago) per-\n forms transport and switching functions and origi-\n nates the call on its network, and hands the call over\n to an IXC, such as Sprint Long-Distance, which car-\n ries the call to St. Louis. Sprint then hands the call\n off to AT&T Missouri (the incumbent LEC in St.\n Louis), which performs switching functions and de-\n livers the call to the called party. While the process\n sounds cumbersome, in practice it happens in frac-\n tions of seconds.\nPeerless Network, Inc. v. MCI Commc’ns Servs., Inc., No. 14 C\n7417, 2018 WL 1378347, at *2 (N.D. Ill. Mar. 16, 2018). Switch-\ning functions include tandem switching, which connects\nLECs to IXCs, and end-office switching, which connects LECs\nto end-users.\n\fNo. 18-2747 3\n\n IXCs pay a fee in exchange for access to an LEC’s network,\nknown as an “access service charge.” The rates are set forth\neither in tariffs the LEC has filed with regulatory agencies or\nin negotiated agreements between the IXC and LEC.\n In February 2009, Peerless, an LEC, and Verizon, an IXC, 1\nentered into a “Tandem Service Agreement,” a contract that\nprovided for lowered rates for certain switching services. If a\ncontractually provided rate did not apply, Peerless billed Ver-\nizon its tariff rates, which Peerless filed with the Federal Com-\nmunications Commission and state public utility commis-\nsions.\n In 2013, the relationship between the parties broke down.\nVerizon disputed and withheld payment for certain charges\non Peerless’s bills. In September 2013, the parties entered into\na standstill agreement in an attempt to avoid litigation. The\nagreement, however, did not have its intended effect. Verizon\ncontinued to withhold payment, and in July 2014, Peerless no-\ntified Verizon that it was replacing certain rates in the Tan-\ndem Service Agreement with the tariff rates. Verizon still\nwithheld payment, and in September 2014, Peerless sued Ver-\nizon.\n\n\n\n\n 1\n The Peerless plaintiffs-appellees are a parent company and several\nsubsidiary competitive LECs, meaning that they are LECs that entered the\nmarket after the Telecommunications Act of 1996. See Indiana Bell Tel. Co.\nv. McCarty, 362 F.3d 378, 382 & n.5 (7th Cir. 2004). Two subsidiaries are\nnot competitive LECs, but that is irrelevant to this appeal. The Verizon\ndefendants-appellants consist of an IXC, a telecommunications carrier,\nand a management company.\n\f4 No. 18-2747\n\n Peerless’s complaint alleged twelve counts, but only a sub-\nset of those are relevant to this appeal. 2 Counts I and II alleged\na breach of the Tandem Service Agreement. Counts III\nthrough V and XI alleged a breach of federal and state tariffs\nand a related declaratory-judgment claim.\n In defense, Verizon alleged that, for multiple reasons,\nPeerless was not entitled to collect on the outstanding\namounts it had billed Verizon. First, Verizon asserted that\nPeerless qualifies as an access stimulator, which is an LEC\nwith high rates that “enters into an arrangement with a pro-\nvider of high call volume operations such as chat lines, adult\nentertainment calls, and ‘free’ conference calls.” In re Connect\nAm. Fund, 26 F.C.C. Rcd. 17663, ¶ 656 (2011). “The arrange-\nment inflates or stimulates the access minutes terminated to\nthe LEC, and the LEC then shares a portion of the increased\naccess revenues resulting from the increased demand with\nthe ‘free’ service provider, or offers some other benefit to the\n‘free’ service provider.” Id. Verizon asserted that, despite en-\ngaging in access stimulation since 2012, Peerless failed to re-\nduce its tariff rates until 2015, as the FCC requires access stim-\nulators to do. See 47 C.F.R. § 61.26(g). Even then, Verizon ar-\ngues, the reduced rates did not comply with FCC rules.\n Second, Verizon alleged that Peerless was billing certain\nservices at higher rates that did not apply to those services.\nSpecifically, Verizon alleged that Peerless (1) billed end-office\nrates for routing Voice over Internet Protocol (“VoIP”) calls\n\n\n 2\n The district court dismissed Counts VI through IX at the motion to\ndismiss stage, and the district court granted summary judgment for Veri-\nzon on Count X. Peerless stated in the proceedings below that it would\nwithdraw Count XII “[a]t the appropriate time.”\n\fNo. 18-2747 5\n\neven though routing such calls does not meet the definition of\nend-office switching; and (2) billed terminating switched-ac-\ncess rates for routing calls to two-stage calling providers, such\nas prepaid calling-card services, even though Peerless was not\nactually terminating the calls. Verizon alleged that billing at\nthese higher rates violated telecommunications law and the\nterms of Peerless’s tariffs.\n Verizon also asserted four counterclaims for breach of fed-\neral and state tariffs and related declaratory judgments. These\ncounterclaims relied on the same access stimulation, VoIP,\nand two-stage calling arguments. In its breach-of-tariff coun-\nterclaims, however, Verizon sought to recover amounts it had\nalready paid Peerless for the charges allegedly made in viola-\ntion of Peerless’s tariffs and telecommunications law.\n The parties cross-moved for partial summary judgment.\nThe district court referred the access stimulation, VoIP, and\ntwo-stage calling issues, as alleged in the counterclaims, to the\nFCC under the primary-jurisdiction doctrine because they in-\nvolved complicated issues of telecommunications law that\ndepended on “the resolution of numerous interpretive ques-\ntions.” See United States ex rel. Sheet Metal Workers Int’l Ass’n,\nLocal Union 20 v. Horning Invs., LLC, 828 F.3d 587, 592 (7th Cir.\n2016) (“Primary jurisdiction is a permissive doctrine that ap-\nplies when resolving a claim requires the resolution of issues\nwhich, under a regulatory scheme, have been placed within\nthe special competence of an administrative body.”) (internal\nquotation marks omitted). The district court accordingly\nstayed Verizon’s counterclaims. 3\n\n\n 3\n In its summary judgment order, the district court expressly stayed\nonly Counterclaims I and III. In its Rule 54(b) order, however, the district\n\f6 No. 18-2747\n\n Despite the referral and stay, the district court granted\nsummary judgment to Peerless on its breach-of-tariff claims.\nThe district court concluded that Verizon’s access stimulation\ndefense could be adjudicated separately from Peerless’s col-\nlection action, reasoning that Verizon was required to pay dis-\nputed charges before challenging them. The district court did\nnot independently resolve the VoIP and two-stage calling de-\nfenses, instead stating summarily in a footnote that the same\nreasoning applied to those challenges.\n The district court entered a partial final judgment on Peer-\nless’s breach-of-tariff claims pursuant to Federal Rule of Civil\nProcedure 54(b). It determined that it would be “unjust” to\nmake Peerless wait to collect on the unpaid bills until the FCC\nresolved Verizon’s claims, and that the risk that Verizon\nmight be entitled to a refund is outweighed by the potential\ndamage to Peerless in further delay.\n The district court also granted summary judgment and\nRule 54(b) partial final judgment on Peerless’s claims regard-\ning the breach of the Tandem Service Agreement. The district\ncourt concluded that Verizon had not disputed the alleged\nbreach, only the amount owed. Verizon appeals.\n II. Discussion\n Neither party disputes that Verizon’s counterclaims were\nproperly referred to the FCC. But Verizon argues that the dis-\ntrict court erred in granting partial final judgment on Peer-\nless’s breach-of-tariff claims. Because Peerless’s entitlement to\ncollect under its tariffs substantially overlaps with the claims\n\ncourt referred generally to staying “Verizon’s counterclaims.” We inter-\npret this to mean that all four of Verizon’s counterclaims are currently\nstayed in the district court.\n\fNo. 18-2747 7\n\nthat are pending in the district court and before the FCC, we\nagree. We therefore do not reach the underlying merits of\nthese claims.\n Peerless’s claims that Verizon breached the Tandem Ser-\nvice Agreement, however, are properly before us. Verizon\ncontests that it breached the agreement and argues that Peer-\nless has not presented sufficient evidence to show a breach.\nWe conclude that a genuine dispute of material fact remains\non those claims and summary judgment was improper.\nA. The Tariff Claims\n When a case involves more than one claim, Rule 54(b) al-\nlows a federal court to direct entry of a final judgment on “one\nor more, but fewer than all, claims,” provided there is no just\nreason for delay. Fed. R. Civ. P. 54(b). A final judgment en-\ntered under Rule 54(b) is immediately appealable though the\nrest of the case remains pending in the district court. VDF Fu-\ntureCeuticals, Inc. v. Stiefel Labs., Inc., 792 F.3d 842, 845 (7th Cir.\n2015).\n We conduct a two-step analysis of a Rule 54(b) partial final\njudgment. First, we make sure that the order was truly a final\njudgment—a review we undertake de novo. Gen. Ins. Co. of Am.\nv. Clark Mall Corp., 644 F.3d 375, 379 (7th Cir. 2011). Second,\nwe ask whether the district court abused its discretion in find-\ning no just reason to delay the appeal of the claim that was\nfinally decided. The goal of our analysis is to prevent “piece-\nmeal appeals” involving the same facts. Id. (quoting Curtiss-\nWright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980)).\n Our inquiry starts and stops at the first step. The Rule\n54(b) order was improper as to the breach-of-tariff claims be-\ncause it did not constitute a final judgment. When it comes to\n\f8 No. 18-2747\n\ndetermining if a judgment is truly final, we consider whether\nthere is too much factual overlap with claims remaining in the\ndistrict court. VDF FutureCeuticals, 792 F.3d at 845. Even if\nmultiple claims arise from the same set of facts, we consider\nwhether they are based on “entirely different legal entitle-\nments yielding separate recoveries” or “different legal theo-\nries aimed at the same recovery”—the latter of which makes\nRule 54(b) partial final judgment improper. Marseilles Hydro\nPower, LLC v. Marseilles Land & Water Co., 518 F.3d 459, 464\n(7th Cir. 2008). Where, as here, “final” claims may yet be un-\ndercut by a claim still pending before the district court, there\nmay be unacceptable overlap. VDF FutureCeuticals, 792 F.3d\nat 845.\n The breach-of-tariff claims before us now and those stayed\nin the district court are factually and legally intertwined.\nReaching the merits of this appeal would require, in part, ad-\ndressing the lawfulness of Peerless’s tariffs and the interpre-\ntation of both the tariff and unsettled areas of federal telecom-\nmunications law. Verizon asks us to determine whether a tar-\niff that does not meet requirements for access stimulators can\never be enforceable. It also asks us to determine whether Peer-\nless’s VoIP and two-stage calling billing practices comply\nwith thorny areas of FCC and D.C. Circuit precedent. These\nare the exact same issues that form the basis of Verizon’s\ncounterclaims, which have been referred to and are pending\nresolution before the FCC. If the FCC decides those issues in\nfavor of Verizon, then Peerless may not have been entitled to\ncollect on its invoices. If Peerless was not entitled to collect,\nthen the district court’s entry of judgment was for naught.\nAnd, regardless of how the FCC decides, the unsuccessful\nparties could appeal the district court’s application of that de-\ncision to the currently stayed counterclaims. It is therefore\n\fNo. 18-2747 9\n\npossible, indeed likely, that the very same facts and issues will\narise before us again once the district court resolves Verizon’s\ncounterclaims. This scenario is exactly the type of judicial in-\nefficiency that makes Rule 54(b) partial final judgment im-\nproper here. Gen. Ins., 644 F.3d at 379.\n True, an argument that a tariff is unreasonable or unlawful\nmust be brought as a counterclaim and can be adjudicated\nseparately from a collection action, including for Rule 54(b)\npurposes. 4 See Reiter v. Cooper, 507 U.S. 258, 266 (1993); Balti-\nmore & Ohio Chicago Terminal R. Co. v. Wisconsin Cent. Ltd., 154\nF.3d 404, 407 (7th Cir. 1998). And as Peerless asserts, Verizon’s\nchallenge to the tariff rates on the grounds that Peerless is an\naccess stimulator is an unreasonable-rate challenge which\nmay, in certain circumstances, be stayed while the remainder\nof the collection action goes forward.\n But the rest of Verizon’s challenges are to Peerless’s com-\npliance with its own tariff rates and with federal communica-\ntions law—not challenges to the tariffs themselves. Verizon\nargues that Peerless billed end-office switching rates for rout-\ning VoIP calls despite the fact that routing such calls does not\nmeet the definition of end-office switching as defined in the\ntariff or by law. 5 Verizon also argues that, in violation of the\n\n\n 4\n This is a function of the filed-rate doctrine, the details of which we\nneed not go into in this opinion.\n 5\n Whether routing VoIP calls is the “functional equivalent” of end-of-\nfice switching is an area of uncertainty in federal telecommunications law,\nhence the district court’s referral of this issue to the FCC. See AT&T Corp.\nv. Fed. Commc’ns Comm’n, 841 F.3d 1047, 1049 (D.C. Cir. 2016) (vacating an\nFCC declaratory ruling that VoIP providers and LECs partner to provide\nthe functional equivalent of end-office switching).\n\f10 No. 18-2747\n\ntariff and telecommunications law, Peerless billed terminat-\ning switched-access rates for routing calls to two-stage calling\nproviders, such as calling card services, even though those\ncalls continue and are terminated somewhere else, for exam-\nple, internationally. These complicated concepts can be dis-\ntilled into a simple allegation: Peerless is billing Verizon for\nservices it is not providing. And, unlike a pure unreasonable-\nrate challenge, such an allegation can serve as a defense, not\njust a counterclaim.\n Yet, the district court conflated Verizon’s defenses and\ncounterclaims. It overlooked that the VoIP and two-stage ar-\nguments serve not only as a basis to recover past-paid\namounts under Verizon’s counterclaims; they also serve as\ndefenses to the allegations that Verizon owes outstanding\namounts to Peerless—defenses that would undercut any\namount that Verizon purportedly owes Peerless. The district\ncourt must resolve any defenses in order to fully adjudicate\nPeerless’s breach-of-tariff claims and determine what Peerless\nis legally entitled to bill Verizon for. But here, it cannot—like\nVerizon’s counterclaims, the resolution of Verizon’s defenses\nturns on the issues pending before the FCC. That these de-\nfenses cannot yet be resolved shows again that Rule 54(b) par-\ntial final judgment is inappropriate here.\n Because the district court erred in granting partial final\njudgment on Peerless’s breach-of-tariff claims, we vacate the\nRule 54(b) judgment on Counts III through V and XI. Under\n28 U.S.C. § 1291, this court has jurisdiction only over “final\ndecisions,” therefore, the appeal as to these counts must be\ndismissed for want of jurisdiction.\n\fNo. 18-2747 11\n\nB. The Contract Claims\n Verizon does not contend, and we do not conclude, that\nthe district court erred in ordering Rule 54(b) partial final\njudgment for Counts I and II, which alleged a breach of the\nTandem Service Agreement. The amounts Verizon allegedly\nowes under the agreement are not tied to Peerless’s tariffs,\nthey are based on discounted, contractually agreed-upon\nrates. Thus, unlike the tariff claims, these breach-of-contract\nclaims “rely on entirely different legal entitlements” than the\ntariff-related counterclaims still pending in the district court.\nMarseilles, 518 F.3d at 464. Judgment on Counts I and II is\nproperly considered final.\n The district court did not specifically address the breach-\nof-contract claims in concluding that there was no just reason\nto delay final judgment. Understandably so—the tariff claims\nmade up the vast majority of this nearly $50 million complex\nlawsuit. But the district court’s determination that Peerless’s\ninterest in prompt payment outweighed the risk that Verizon\nmay be entitled to a refund presumably applied to the con-\ntract claims as well as the tariff claims. That was not an abuse\nof discretion. It is unclear how long the remaining issues will\nbe pending before the FCC, delaying the resolution of these\nentirely separate breach-of-contract counts. Therefore, Rule\n54(b) partial final judgment was appropriate on Counts I and\nII, and we have jurisdiction to address the merits of Verizon’s\nappeal as to these counts.\n Verizon argues that the district court erred in granting\nsummary judgment for Peerless on these counts. We review\ngrants of summary judgment de novo. “Summary judgment is\nappropriate when there is no genuine dispute as to a material\nfact.” Estate of Jones v. Children’s Hosp. & Health Sys. Inc.\n\f12 No. 18-2747\n\nPension Plan, 892 F.3d 919, 923 (7th Cir. 2018). When both par-\nties have moved for summary judgment, “we construe all in-\nferences in favor of the party against whom the motion under\nconsideration is made.” Schlaf v. Safeguard Prop., LLC, 899 F.3d\n459, 465 (7th Cir. 2018) (quoting Hendricks-Robinson v. Excel\nCorp., 154 F.3d 685, 692 (7th Cir. 1998)).\n The district court concluded that summary judgment for\nPeerless was appropriate because, supposedly, Verizon did\nnot dispute that it had failed to pay charges owed under the\nTandem Service Agreement—Verizon disputed only the\namount of damages. The record says otherwise. In the pro-\nceedings below, Verizon acknowledged Peerless’s allegations\nthat it owed outstanding amounts under the Tandem Service\nAgreement. Verizon responded, however, that Peerless had\nfailed to specifically identify any unpaid invoices. Verizon\nalso submitted an affidavit from a Senior Manager of Invoice\nValidation attesting that she was unaware of which invoices\npurportedly reflected any outstanding amount. Viewing the\nfacts in the light most favorable to Verizon, as we must, the\nconflicting evidence creates a genuine dispute as to whether\nVerizon owes any unpaid amount under the Tandem Service\nAgreement.\n Peerless argues that because Verizon and Peerless jointly\nstipulated to a damages amount for the breach-of-contract\nclaims, Verizon cannot now challenge the district court’s de-\ntermination of liability on these counts. Peerless is incorrect,\nthe stipulation is irrelevant. By that point, the district court\nhad already found against Verizon on the issue of liability,\nand we allow parties to challenge a determination of liability\neven if they later stipulate to damages. See, e.g., Pitcher v. Prin-\ncipal Mut. Life Ins. Co., 93 F.3d 407, 411 (7th Cir. 1996). We\n\fNo. 18-2747 13\n\nconclude that the district court erred in its liability determina-\ntion and improperly granted summary judgment for Peerless\non Counts I and II, alleging a breach of the Tandem Service\nAgreement.\n III. Conclusion\n The district court erred in entering partial final judgment\nunder Rule 54(b) on Counts III through V and XI. We\nVACATE the Rule 54(b) judgment on those counts and\nDISMISS the appeal of those counts for want of jurisdiction.\nWe also conclude that the district court erred in granting sum-\nmary judgment on Counts I and II, and we REVERSE and\nREMAND for further proceedings on those counts consistent\nwith this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369497/", "author_raw": "ST. EVE, Circuit Judge"}]}	WOOD	BRENNAN	ST EVE	1	{"WOOD": ", Chief", "BRENNAN": ", Cir cuit", "ST EVE": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592244/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,245		Fred Gates v. Board of Education of the City	2019-02-20	17-3143	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before MANION, HAMILTON, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "David Frank Hamilton", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐3143 \nFRED GATES, \n Plaintiff‐Appellant, \n v. \n\nBOARD OF EDUCATION OF THE CITY OF CHICAGO, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 1:15‐CV‐1394 — Robert M. Dow, Jr., Judge. \n ____________________ \n\n ARGUED SEPTEMBER 20, 2018 — DECIDED FEBRUARY 20, 2019 \n ____________________ \n\n Before MANION, HAMILTON, and SCUDDER, Circuit Judges. \n HAMILTON, Circuit Judge. Plaintiﬀ Fred Gates testified that \nhis direct supervisor, Rafael Rivera, addressed him with the \nN‐word twice, and once threatened to write up his “black \nass.” The district court granted the employer’s motion for \nsummary judgment on Gates’s claim for a racially hostile \nwork environment under Title VII of the Civil Rights Act of \n1964, 42 U.S.C. § 2000e‐2. In granting summary judgment for \nthe defendant‐employer, the district court noted that Gates \n\f2 No. 17‐3143 \n\nfaced a high bar, “as ‘[t]he workplace that is actionable is one \nthat is ‘hellish.’” Gates v. Board of Education of the City of Chi‐\ncago, No. 15‐CV‐1394, 2017 WL 4310648, at 13 (N.D. Ill. Sept. \n28, 2017), quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, \n1013 (7th Cir. 1997) (alteration in original). The court ulti‐\nmately decided that Rivera’s comments were not severe or \npervasive enough to rise to the level of a hostile work envi‐\nronment, an adverse employment action that could entitle \nGates to relief under Title VII. Id. at 15. \n The district court’s analysis erred in two respects. First, it \nrelied on the “hellish” standard, which is not a standard a \nplaintiﬀ must satisfy. See Jackson v. County of Racine, 474 F.3d \n493, 500 (7th Cir. 2007); Johnson v. Advocate Health and Hospitals \nCorp., 892 F.3d 887, 901 (7th Cir. 2018), quoting Harris v. Fork‐\nlift Systems, Inc., 510 U.S. 17, 21–22 (1993) (“Title VII comes \ninto play before the harassing conduct leads to a nervous \nbreakdown.”). Second, the district court failed to focus on the \ndiﬀerence in our hostile environment cases between having \nthe plaintiﬀ’s co‐workers show racial hostility and having the \nplaintiﬀ’s supervisor show racial hostility, especially in using \nsuch poisonous racial epithets as shown in the evidence here. \nSee, e.g., Robinson v. Perales, 894 F.3d 818, 828–29 (7th Cir. \n2018); Rodgers v. Western‐Southern Life Insurance Co., 12 F.3d \n668, 675 (7th Cir. 1993). While we aﬃrm all other portions of \nthe district court’s judgment, we reverse on the claim for a ra‐\ncially hostile environment. \nI. Factual and Procedural Background \n A. Facts Relevant to Summary Judgment \n Our account of the facts reflects the defendant Board’s \nchoice to move for summary judgment. As required, we give \n\fNo. 17‐3143 3\n\nplaintiﬀ Gates the benefit of conflicts in the evidence and \nmake reasonable inferences in his favor. Terry v. Gary Commu‐\nnity School Corp., 910 F.3d 1000, 1004 (7th Cir. 2018); Johnson, \n892 F.3d at 893. The Board and its witnesses will be free to \noﬀer their own conflicting evidence at trial, and we do not \nvouch for the objective truth of Gates’s testimony that we \nmust credit in this appeal. \n Gates is an African‐American male born in 1965. He has \nbeen a building engineer with the Chicago Board of Educa‐\ntion since 2004. In 2010, Gates was hired to fill the sole engi‐\nneer position at William C. Goudy Technology Academy. He \nreported to school Principal Pamela Brandt until December \n2012, when Rafael Rivera became his supervisor. Rivera was \na facilities engineer who oversaw engineering work at sixteen \nschools, including Gates’s. Because Rivera supervised so \nmany schools, he and Gates saw each other in person only \nthree times or so per month. \n Gates’s issues with Rivera began in June 2013. Gates testi‐\nfied that at a performance meeting that month, Rivera told \nhim: “you will not be promoted because of your age and be‐\ncause you’re black[.]” Despite Rivera’s comment, Gates still \napplied for a promotion in July and August of 2013, which he \ndid not receive. Gates testified that Rivera prevented him \nfrom getting a better job. \n According to Gates, in the late summer of 2013, Rivera’s \nbehavior became increasingly oﬀensive. Gates testified that \non several occasions Rivera uttered racial epithets against \nhim. Gates described one meeting with Rivera at his school in \nJuly or August of 2013. Rivera passed gas and then asked \nGates why he did not laugh in response. Gates responded that \nhe did not know why he should laugh or why it was funny. \n\f4 No. 17‐3143 \n\nRivera said “you know what they call that[?]” Gates asked \n“call what?” and Rivera responded “[w]hen someone fart and \na black guy’s sitting there.” Gates said “no,” and Rivera an‐\nswered, “you call that a shit‐sniﬃng nigger.” Gates claimed \nthat he complained about this incident to Rivera’s supervisor \nat the time, Ms. Bilqis Jacob‐El. Gates testified that Jacob‐El \nasked him whether he had told anyone else about the com‐\nment. He said no. She then instructed Gates to keep to himself \nthe details of his encounter with Rivera. \n Gates also claimed that in November 2013, Rivera again \ncame to Gates’s school and spoke with him. At this meeting, \nRivera yelled at Gates, telling him “you will kiss the princi‐\npal’s ass to make her happy” or Rivera “would write [him] \nup, which would cause [Gates] to get low work evaluations \nand get fired.” Gates testified later that Rivera specifically \nthreatened to write Gates’s “black ass up.” Gates also testified \nthat in a March 2014 meeting, Rivera ordered him to sit down, \nprompting the following exchange: \n I said I don’t want to sit down, Rafael. He said, \n well, I’m your boss. I’m ordering you to sit \n down. So I said I’m not going to sit down. He \n said I’m tired of you people. I said who are you \n referring to? He said, nigger, you know what \n I’m talking about. So I walked out of the library. \n On appeal, the Board argued that Rivera could not have \nexposed Gates to a racially hostile work environment because \nhis interactions with Gates were too infrequent. The Board \nnoted that Rivera made his oﬀending comments over the \ncourse of six months, Gates saw Rivera only three times or so \nper month, and from November 2013 to November 2014, \nGates worked only eleven days. (Gates was absent so often \n\fNo. 17‐3143 5\n\nbecause during that year he took multiple approved leaves \nfrom work, including bereavement leave for his father’s \ndeath, a one‐month sick leave, leave under the Family Medi‐\ncal Leave Act to care for his grandfather, and then a nearly \none‐month military leave.) Gates testified that he used the \none‐month sick leave in December 2013 to seek medical atten‐\ntion for homicidal thoughts he was experiencing towards Ri‐\nvera, Principal Brandt, and his school’s vice principal. The \nhomicidal thoughts, Gates testified, were brought on by the \ndiscrimination he faced at work. \n Rivera began to prepare a pre‐discipline notice for Gates \nin December 2013 citing uncompleted work orders at Gates’s \nschool.1 Rivera did not actually give this notice to Gates. Ri‐\nvera later wrote up and issued Gates a diﬀerent pre‐discipline \nnotice on March 17, 2014, just before the library incident. The \nnotice told Gates to report to a pre‐discipline hearing to ad‐\ndress the issues with his performance on March 20, 2014. Ac‐\ncording to Gates, the library incident in which Rivera called \nhim the N‐word for a second time happened on March 17 or \n18 of 2014. Rivera issued Gates a second pre‐discipline notice \non March 19, 2014 citing insubordination. The second notice \nscheduled a pre‐discipline hearing on March 25, 2014. At the \nfirst pre‐discipline hearing on March 20, Gates and a repre‐\nsentative from his union met with Rivera. Gates told his union \nrepresentative that he believed he was being discriminated \nagainst at work, and the representative advised him to hire an \nattorney. Gates did not attend the March 25 hearing because \n \n 1 Pre‐discipline notices notify employees that there is a problem with \n\ntheir work or behavior and that pre‐discipline hearings will be held with \nemployees and their union representatives to decide whether discipline is \nwarranted. \n\f6 No. 17‐3143 \n\nhe had been injured on the job in the meantime. No formal \ndisciplinary action was taken against Gates. After his injury, \nGates went on workers’ compensation leave, and during that \ntime began working a second job at the University of Illinois‐\nChicago. Rivera informed an employee with the Board’s legal \ndepartment that Gates had taken several extensive leaves and \nthen found a second job. Gates believed that Rivera took this \naction to have him fired. \n When Gates returned from his leave in November 2014, he \nwas assigned to the Far South Side or Southwest Collabora‐\ntive, a group of traveling building engineers who work at dif‐\nferent schools throughout the southwest side of Chicago. In \nthe position at William C. Goudy Technology Academy that \nGates held before his leaves, he was a Class 3 engineer (the \nlowest‐paid of three classes), earning around $82,000 to \n$87,000 a year.2 When Gates testified at his deposition in 2016, \nhe was a Class 2 engineer with the Southwest Collaborative \nearning between $94,000 and $97,000 a year. \n B. Proceedings in Civil Rights Agencies and the District Court \n Gates never filed a formal internal complaint with the \nBoard about the discrimination he says he suﬀered. Instead, \non April 14, 2014, he filed a formal charge of discrimination \nwith the Illinois Department of Human Rights and the United \nStates Equal Employment Opportunity Commission. The \nEEOC issued Gates a notice of his right to sue. Gates then filed \na five‐count complaint against the Board in the district court \n\n \n 2 The term Chief Engineer was abolished in 2012 under the terms of a \n\ncollective bargaining agreement. When the title was in use, it applied au‐\ntomatically to any building engineer appointed to a school with only one \nengineer—so Gates was the Chief Engineer at Goudy. \n\fNo. 17‐3143 7\n\nalleging age and race discrimination and retaliation. The \nBoard eventually moved for summary judgment on all claims, \nand the district court granted the motion. Gates v. Board of Ed‐\nucation of the City of Chicago, No. 15‐CV‐1394, 2017 WL \n4310648, at 1 (N.D. Ill. Sept. 28, 2017). \n As the district court noted, neither Gates’s complaint nor \nhis answers to the Board’s interrogatories said that Rivera had \never used the terms “black,” “black ass,” “age,” or the N‐\nword. Id. at 7. Those specifics surfaced for the first time dur‐\ning Gates’s deposition testimony. The district court carefully \nconsidered whether to treat those portions of his testimony as \npart of the summary judgment evidence and ultimately de‐\ncided to consider this testimony. That was probably the cor‐\nrect decision, and in any event that point is not disputed on \nappeal. Still, the district court concluded that Gates could not \nsuﬃciently establish that he suﬀered a racially hostile work \nenvironment in violation of Title VII. The court explained that \n“the threshold for plaintiﬀs is high, as “[t]he workplace that \nis actionable is one that is ‘hellish.’” Id. at 13, quoting Perry v. \nHarris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997). The \nharassing conduct, the court continued, must be severe or per‐\nvasive and Rivera’s behavior towards Gates was neither. Id. at \n14–15.3 \n \n \n 3 The district court also granted summary judgment for the Board on \n\nGates’s other claims for age and race discrimination based on a denial of \na promotion and the pre‐discipline notices plus a negative performance \nreview, as well as his retaliation claims based on a denial of a promotion \nand the pre‐discipline notices plus a negative performance review. Gates, \n2017 WL 4310648, at 13, 17–18. Gates does not challenge those aspects of \nthe judgment on appeal. \n\f8 No. 17‐3143 \n\nII. Analysis \n A. Standard of Review \n We review de novo the district court’s grant of summary \njudgment. Jackson v. County of Racine, 474 F.3d 493, 498 (7th \nCir. 2007); Johnson v. Advocate Health and Hospitals Corp., 892 \nF.3d 887, 894 (7th Cir. 2018); Whitaker v. Wisconsin Dep’t of \nHealth Services, 849 F.3d 681, 684 (7th Cir. 2017). Summary \njudgment is proper where “the movant shows that there is no \ngenuine dispute as to any material fact and the movant is en‐\ntitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In \nour review, we “constru[e] all facts, and draw[] all reasonable \ninferences from those facts, in favor of the nonmoving party.” \nWhittaker v. Northern Illinois University, 424 F.3d 640, 644–45 \n(7th Cir. 2005), quoting Telemark Development Group Inc. v. \nMengelt, 313 F.3d 972, 976 (7th Cir. 2002). \n B. Racially Hostile Work Environment \n The district court ruled that Gates provided insuﬃcient \nevidence to establish that he was subject to a hostile work en‐\nvironment. To prevail on a Title VII claim, a plaintiﬀ must \nshow that \n [1] he is a member of a class protected by the \n statute, [2] that he has been the subject of some \n form of adverse employment action (or that he \n has been subjected to a hostile work environ‐\n ment), and [3] that the employer took this ad‐\n verse action on account of the plaintiﬀ’s mem‐\n bership in the protected class. \nAbrego v. Wilkie, 907 F.3d 1004, 1012 (7th Cir. 2018), quoting \nMorgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013). Subject‐\ning an employee to a hostile work environment counts as an \n\fNo. 17‐3143 9\n\nadverse action (“unlawful employment practice”) within the \nmeaning of Title VII’s prohibition of race discrimination in 42 \nU.S.C. § 2000e‐2(a). E.g., Alexander v. Casino Queen, Inc., 739 \nF.3d 972, 980, 982 (7th Cir. 2014). \n To prove that an employment environment was actiona‐\nbly hostile, a plaintiﬀ must show that “(1) he was subject to \nunwelcome harassment; (2) the harassment was based on race \n(or another protected category); (3) the harassment was severe \nor pervasive to a degree that altered the conditions of employ‐\nment and created a hostile or abusive work environment; and \n(4) there is a basis for employer liability.” Robinson v. Perales, \n894 F.3d 818, 828 (7th Cir. 2018), citing Meritor Savings Bank, \nFSB v. Vinson, 477 U.S. 57, 66–72 (1986), Johnson, 892 F.3d at \n900–01, and Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017); see \nalso Johnson, 892 F.3d at 900.4 Relevant to this inquiry are “the \nseverity of the alleged conduct, its frequency, whether it [wa]s \nphysically threatening or humiliating (or merely oﬀensive), \nand whether it unreasonably interfere[d] with the employee’s \n \n 4 “Sometimes our cases phrase the test differently, looking instead for \n\nevidence that the workplace was both subjectively and objectively offen‐\nsive—either in lieu of the first prong—that the employee was subject to \nunwelcome harassment—or the third prong—whether the harassment \nwas severe or pervasive enough to rise to the level of a hostile work envi‐\nronment.” Johnson, 892 F.3d at 900, citing Cole v. Board of Trustees of North‐\nern Illinois University, 838 F. 3d 888, 896 n.6 (7th Cir. 2016); see also Alexan‐\nder, 739 F.3d at 982 (requiring plaintiffs to show “(1) that the work envi‐\nronment was both subjectively and objectively offensive; (2) that the har‐\nassment was based on membership in a protected class; (3) that the con‐\nduct was severe or pervasive; and (4) that there is a basis for employer \nliability.”). “In the end, we have concluded that the inquiry is the same” \nunder these different phrasings of the test. Johnson, 892 F.3d at 900, citing \nCole, 838 F.3d at 896 n.6. \n \n\f10 No. 17‐3143 \n\nwork performance.” Robinson, 894 F.3d at 828; see Jackson, 474 \nF.3d at 499; see Whittaker, 424 F.3d at 645. To withstand sum‐\nmary judgment, Gates needed to provide evidence suﬃcient \nto allow a reasonable jury to find that Rivera’s conduct “was \nsevere or pervasive enough to constitute a hostile work envi‐\nronment.” Robinson, 894 F.3d at 828. \n The district court identified these inquiries properly but \nerred in their application. Most important, the court incor‐\nrectly stated that “the threshold for plaintiﬀs is high, as “[t]he \nworkplace that is actionable is one that is ‘hellish.’” Gates, 2017 \nWL 4310648, at 13, quoting Perry, 126 F.3d at 1013 (alteration \nin original). While a “hellish” workplace is surely actionable, \nplaintiﬀs’ evidence need not show a descent into the Inferno. \nIn 2007, we rejected the so‐called “hellish” standard in Jackson \nv. County of Racine, 474 F.3d at 500, and in other decisions after \nthe district court’s decision in this case, such as Johnson v. Ad‐\nvocate Health and Hospitals Corp., 892 F.3d at 901, we have again \nmade the point. In Jackson we said that language in our earlier \nopinions indicating that an environment must reach the point \nof “hellishness” before becoming actionable is impossible to \nreconcile with Harris v. Forklift Systems, Inc., where the Su‐\npreme Court wrote: \n Title VII comes into play before the harassing \n conduct leads to a nervous breakdown. A dis‐\n criminatorily abusive work environment, even \n one that does not seriously aﬀect employees’ \n psychological well‐being, can and often will de‐\n tract from employees’ job performance, discour‐\n age employees from remaining on the job, or \n keep them from advancing in their careers … \n The appalling conduct alleged in Meritor, and \n\fNo. 17‐3143 11\n\n the reference in that case to environments “so \n heavily polluted with discrimination as to de‐\n stroy completely the emotional and psychologi‐\n cal stability of minority group workers,” merely \n present some especially egregious examples of \n harassment. They do not mark the boundary of \n what is actionable. \n510 U.S. at 22, quoting Meritor Savings Bank, FSB v. Vinson, 477 \nU.S. 57, 66 (1986). In Jackson, pointing to this same passage \nfrom Harris, we clarified: “The Supreme Court’s decision in \nHarris established that something short of the Ninth Ring” \nmay violate Title VII. Jackson, 474 F.3d at 500; see also Alamo \nv. Bliss, 864 F.3d 541, 550 (7th Cir. 2017) (“a workplace need \nnot be ‘hellish’ to constitute a hostile work environment”), cit‐\ning Jackson, 474 F.3d at 500. \n The issue is whether the discriminatory conduct Gates tes‐\ntified to qualifies as suﬃciently severe or pervasive to alter the \nconditions of his work environment. The principal racial har‐\nassment Gates described was at the hand of Rivera. Three in‐\ncidents are key: (1) the 2013 “joke” in which Rivera called \nGates the N‐word; (2) the 2013 meeting in which Rivera \nthreated to write up Gates’s “black ass”; and (3) the 2014 “you \npeople” comment in which Rivera again addressed Gates us‐\ning the N‐word.5 The district court decided at summary judg‐\nment that as a matter of law, this level of harassment from a \n\n \n 5 Gates pointed to additional harassing conduct including the pre‐dis‐\n\nciplinary notices that Rivera issued him, racially offensive conduct by \nPrincipal Brandt, and Rivera’s general pattern of speaking to Gates in a \n“demeaning and unprofessional manner.” However, the three incidents \ndiscussed here are the most severe comments actually considered by the \ndistrict court at summary judgment and are sufficient for us to decide that \n\f12 No. 17‐3143 \n\nsupervisor was not severe or pervasive enough to render an \nemployee’s work environment hostile. The court concluded \nthat our precedents showed generally “that one or two utter‐\nances of the N‐word are not severe or pervasive enough to rise \nto the level of establishing liability absent an unusually se‐\nvere, physically threatening, or humiliating incident.” Gates, \n2017 WL 4310648, at 14. The district court’s analysis is \nflawed, however, because it overlooked the fact that in most \nof the cases it cited rejecting hostile work environment claims, \na co‐worker as opposed to a supervisor uttered the racially of‐\nfensive language. This distinction is critical in general, and in \nthis case. See Nichols v. Michigan City Plant Planning Dep’t, 755 \nF.3d 594, 601 (7th Cir. 2014) (aﬃrming summary judgment for \nemployer; one use of racial epithet and several other incidents \nof harassment by co‐workers were not severe or pervasive \nenough to establish hostile work environment); Smith v. \nNortheastern Illinois University, 388 F.3d 559, 562 n. 2, 566–67 \n(7th Cir. 2004) (aﬃrming summary judgment on one of plain‐\ntiﬀ’s hostile environment claims where that plaintiﬀ heard de‐\nfendant—who may or may not have been her supervisor—\nutter only one racist comment not directed at her); Rodgers v. \nWestern‐Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir. \n1993) (multiple instances of supervisor using the N‐word in \nemployee’s presence established actionable hostile work en‐\nvironment); Shanoﬀ v. Illinois Dep’t of Human Services, 258 F.3d \n696, 698–99, 705–06 (7th Cir. 2001) (hostile work environment \nclaim should have withstood summary judgment motion \n\n \nthe district erred in granting summary judgment to the Board on Gates’s \nTitle VII hostile work environment claim. They are also the only three \ncomments that Gates used on appeal to argue that his work environment \nwas offensive enough subjectively and objectively to be actionable. \n\fNo. 17‐3143 13\n\nwhere plaintiﬀ’s supervisor repeatedly harassed him with de‐\nrogatory comments about his race and religion). 6 \n We have repeatedly treated a supervisor’s use of racially \ntoxic language in the workplace as much more serious than a \nco‐worker’s. See, e.g., Robinson, 894 F.3d at 828–29; Rodgers, 12 \nF.3d at 675; see also Dandy v. United Parcel Service, Inc., 388 \nF.3d 263, 271 (7th Cir. 2004) (use of the N‐word by supervisors \nhas particularly severe impact on work environments). This is \nparticularly true when supervisors address these derogatory \nand humiliating remarks directly to the employees in ques‐\ntion. See Johnson, 892 F.3d at 902 (“Comments made to non‐\nplaintiﬀ co‐workers carry less weight in the evaluation of a \nhostile environment claim, but they are not irrelevant.”); \nDandy, 388 F.3d at 271 (in evaluating whether oﬀensive lan‐\nguage created hostile work environment, it is necessary to \nnote “whether the remarks were stated directly to the plaintiﬀ \nor whether the plaintiﬀ heard them secondhand[.] That is not \nto say that racial epithets must be stated directly to a plaintiﬀ \nto create an objectively hostile work environment. Repeated \nuse of such highly oﬀensive terms … may create an objec‐\ntively hostile work environment, even if they are heard \nsecondhand.”), citing McPhaul v. Board of Commissioners of \n \n 6 The district court found more direct support in Roberts v. Fairfax \n\nCounty Public Schools, 858 F. Supp. 2d 605, 609 (E.D. Va. 2012), where a \nsupervisor (a teacher) threatened her subordinate and called her by the N‐\nword. The case came before the Eastern District of Virginia court on De‐\nfendant Fairfax County Public School’s motion for summary judgment. Id. \nat 606–07. The court held that this conduct was not severe or pervasive \nenough to create a hostile work environment. Id. at 609–11. But this deci‐\nsion runs contrary to our circuit’s precedents that distinguish between su‐\npervisor and co‐worker conduct as well as between direct and indirect \nharassment. \n\f14 No. 17‐3143 \n\nMadison County, 226 F.3d 558, 567 (7th Cir. 2000), overruled on \nother grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. \n2013). \n In Rodgers v. Western‐Southern Life Insurance Co., we af‐\nfirmed a verdict for an employee where his supervisor used \nthe N‐word multiple times in his presence and made several \nother racially oﬀensive comments. Rodgers, 12 F.3d at 671, \n676–78. We explained: “Perhaps no single act can more \nquickly ‘alter the conditions of employment and create an \nabusive working environment,’ than the use of an unambigu‐\nously racial epithet such as ‘nigger’ by a supervisor in the \npresence of his subordinates.” Id. at 675, quoting Meritor, 477 \nU.S. at 67. “[A] supervisor’s use of the [N‐word] impacts the \nwork environment far more severely than use by co‐equals.” \nId. at 675. \n In Johnson v. Advocate Health and Hospitals Corp., we evalu‐\nated plaintiﬀs’ claim that their “supervisors subjected [them] \nto oﬀensive and derogatory racial comments, creating a hos‐\ntile work environment.” 892 F.3d at 893. Plaintiﬀs testified \nthat their supervisors made racially‐charged comments di‐\nrectly to them and others and used the N‐word in their pres‐\nence. Id. at 901–03. We held that evidence that supervisors en‐\ngaged in this atrocious conduct “should allow a reasonable \njury to find that each of the plaintiﬀs experienced a racially \nhostile working environment.” Id. at 904. \n In Robinson v. Perales, we considered a hostile work envi‐\nronment claim where Robinson, a biracial police oﬃcer with \nthe University of Illinois at Chicago presented evidence that \nPerales, his lieutenant and supervisor, used the N‐word in his \npresence on two occasions, once in reference to Robinson him‐\nself. 894 F.3d at 823–24. The district court granted defendant \n\fNo. 17‐3143 15\n\nPerales summary judgment on Robinson’s hostile work envi‐\nronment claim. We reversed the district court’s judgment \n“that a few instances of the use of this particular epithet [the \nN‐word] were not significant enough to meet the standard for \nhostile environment.” Id. at 828. We emphasized that “Perales \nwas not simply a co‐worker; he was a supervisor with direct \nauthority over Robinson.” Id. at 828. \n In short, when the harassment involves such appalling \nracist language in comments made directly to employees by \ntheir supervisors, we have not aﬃrmed summary judgment \nfor employers. \n The district court also found that the harassment Gates de‐\nscribed was too infrequent to be pervasive (three racial slurs \nin a sixth‐month period of a four‐year employment), not ob‐\njectively oﬀensive, and not “particularly ‘severe,’ physically \nthreatening, or humiliating.” Gates, 2017 WL 4310648, at 15. \nIn support of its holding, the district court cited cases that fit \ninto one of four distinguishable categories: (1) the alleged ac‐\ntions or comments were comparably horrific to using the N‐\nword but were done or said by a co‐worker, not a supervisor; \n(2) the actions or comments alleged were made by a supervi‐\nsor but were more ambiguous or significantly less oﬀensive \nthan addressing an employee with the N‐word; (3) the alleged \nremarks were very oﬀensive and made by a supervisor but \nwere not spoken directly to the plaintiﬀ; or (4) the conduct or \nremarks were evaluated under the now‐rejected “hellish” \nstandard. Id. at 13–15. See Nichols, 755 F.3d at 601 (co‐worker \nusing racial epithet); McPherson v. City of Waukegan, 379 F.3d \n430, 434–35, 439 (7th Cir. 2004) (several sexually‐suggestive \ncomments along the lines of asking the colors of plaintiﬀ’s and \nothers’ bras and underwear did not alone establish hostile \n\f16 No. 17‐3143 \n\nwork environment); Patt v. Family Health Systems, Inc., 280 \nF.3d 749, 751, 754 (7th Cir. 2002) (no actionable hostile work \nenvironment because of eight gender‐based comments by \nthen surgery department chief, when only two such com‐\nments were made directly to plaintiﬀ and neither referred to \nher specifically);7 Baskerville v. Culligan International Co., 50 \nF.3d 428, 430 (7th Cir. 1995) (applying “hellish” standard, \ncourt did “not think that these incidents [sexually‐harassing \ncomments], spread over seven months, could reasonably be \nthought to add up to sexual harassment.”); North v. Madison \nArea Ass’n for Retarded Citizens‐Developmental Centers Corp., \n844 F.2d 401, 409 (7th Cir. 1988) (two or three oﬀensive state‐\nments that at most “might be considered as racial slurs” did \nnot establish “a suﬃciently pervasive atmosphere of racial \nharassment”); Poullard v. McDonald, 829 F.3d 844, 858–59 (7th \nCir. 2016) (no actionable hostile work environment where pri‐\nmary allegations concerned three incidents of supervisor har‐\nassment that had at best “a tenuously arguable connection to \nrace”; the supervisor comments made “were at worst mild \nand ambiguous”);8 Ford v. Minteq Shapes & Services, Inc., 587 \nF.3d 845, 846–48 (7th Cir. 2009) (co‐worker’s comments refer‐\nring to plaintiﬀ Ford as “black man” and “black African‐\nAmerican,” Ford’s supervisor’s comment that “he didn’t have \n \n 7 The defendants’ brief in the Patt case made clear that “only two of \n\nthe alleged comments were heard by Dr. Patt [plaintiff] directly” and that \n“Dr. Patt acknowledge[d] that neither of the references were directed to‐\nward her and admitted that neither statement offended her.” Brief for De‐\nfendants‐Appellees at 26, Patt v. Family Health Systems, Inc., 280 F.3d 749 \n(7th Cir. 2002) (No. 00‐2948). \n 8 The district court here cited the district court opinion in Poullard. See \n\nGates, 2017 WL 4310648, at 15, citing Poullard v. Shinseki, No. 12 C 7497, \n2015 WL 1428105, at 11 (N.D. Ill. Mar. 26, 2015). \n\fNo. 17‐3143 17\n\nto worry about losing his job because Minteq [employer] \nwanted to appear integrated[,]” another supervisor’s com‐\nment calling Ford a gorilla, and Minteq not letting Ford bring \nhis grandchildren to work Christmas parties did not amount \nto hostile work environment); Whittaker v. Northern Illinois \nUniversity, 424 F.3d 640, 644–45 (7th Cir. 2005) (no actionable \nhostile work environment where gender‐based comments \nwere made “outside [plaintiﬀ’s] presence, and there [was] no \nevidence that she was aware of these defendants’ remarks \nduring her tenure with [employer].”). \n Gates testified to quite diﬀerent circumstances. His super‐\nvisor used race‐based epithets including the N‐word directly \nand in reference to him. The district court acknowledged the \nseverity of Rivera’s epithets, but its analysis did not address \nthe significance of the diﬀerences between supervisors and \nco‐workers and between direct and indirect harassment that \nare important in hostile work environment cases. Gates, 2017 \nWL 4310648, at *14, citing and quoting Cerros v. Steel Technol‐\nogies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (“there is no \n‘magic number of slurs’” needed to show hostile work envi‐\nronment, and “an unambiguously racial epithet falls on the \n‘more severe’ end of the spectrum”); Hrobowski v. Worthington \nSteel Co., 358 F.3d 473, 477 (7th Cir. 2004) (“Given American \nhistory, we recognize that the word ‘nigger’ can have a highly \ndisturbing impact on the listener.”). \n If the only evidence of racial harassment Gates had was a \nco‐worker’s use of the three epithets uttered by Rivera, we \nwould likely reach a diﬀerent conclusion in this case. Given \nRivera’s position as Gates’s supervisor, however, if a jury \ncredits Gates’s testimony about Rivera’s comments, it could \nreasonably find that Gates suﬀered an actionable hostile work \n\f18 No. 17‐3143 \n\nenvironment. Whether conduct is “‘suﬃciently severe or per‐\nvasive to alter the conditions of employment’ … depends on \n‘the severity of the allegedly discriminatory conduct, its fre‐\nquency, whether it is physically threatening or humiliating or \nmerely oﬀensive, and whether it unreasonably interferes with \nan employee’s work performance.’” Johnson, 892 F.3d at 900, \nquoting Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir. \n2009). A jury would likely have a diﬃcult time concluding \nthat a supervisor calling his employee the “N‐word” and \nthreatening to write up his “black ass” were not examples of \nharassing comments motivated by race. Although Rivera’s \nconduct was relatively infrequent and not “physically threat‐\nening” or “humiliating” in a public setting, it was severe and \nhumiliating. A reasonable jury could also find that it did in‐\nterfere with Gates’s work performance, not least because it led \nhim to take a leave from work to seek medical treatment. Su‐\npervisor conduct as severe and direct as described in Gates’s \ntestimony cannot be deemed insuﬃciently severe or perva‐\nsive as a matter of law. \n C. Waiver & Forfeiture of Remaining Claims \n Gates is entitled to a trial on his hostile environment case, \nbut he waived or forfeited all of his remaining claims. He ar‐\ngues, though, that he did not forfeit his Title VII retaliation \nclaim in the district court. We disagree. The Board’s motion \nsought summary judgment on all claims. In opposing sum‐\nmary judgment in the district court, Gates failed to assert that \nhe was subject to a hostile work environment in retaliation for \ncomplaining about the discrimination he says he suﬀered. He \ndid not specifically argue that Rivera or Principal Brandt cre‐\nated a hostile work environment because he reported their \n\fNo. 17‐3143 19\n\ndiscriminatory conduct to Jacob‐El or the EEOC. Gates did ar‐\ngue that he was retaliated against, but only in the form of not \nbeing promoted and being written up by Rivera. In his sum‐\nmary judgment memorandum, Gates also discussed two of \nthe instances of racially‐harassing conduct that he used to \nsupport his hostile work environment claim—the incident in \nwhich Rivera threatened to write up his “black ass” and the \nlibrary incident in which Rivera used the N‐word. However, \nhe never specifically argued that this conduct was retaliatory. \nPerhaps Gates could have linked those incidents to his claims \nof retaliation, but he did not. The district court was not re‐\nquired to address a claim or theory that plaintiﬀ did not as‐\nsert. \n The district court’s grant of summary judgment on Gates’s \nhostile work environment claim is REVERSED and the case is \nREMANDED for further proceedings on that claim consistent \nwith this opinion. In all other respects, the judgment of the \ndistrict court is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369498/", "author_raw": "David Frank Hamilton"}]}	MANION	HAMILTON	SCUDDER	1	{"MANION": ", Circuit", "HAMILTON": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592245/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,246	Douglas HOLLOWAY, Plaintiff-Appellant, v. SOO LINE RAILROAD COMPANY, D/B/A Canadian Pacific, Defendant-Appellee.	Douglas Holloway v. Soo Line Railroad Company	2019-02-20	18-2431	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Barrett, Scudder", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2431\nDOUGLAS HOLLOWAY,\n Plaintiff-Appellant,\n v.\n\nSOO LINE RAILROAD COMPANY,\nd/b/a as Canadian Pacific,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:16-cv-09191 — Jorge L. Alonso, Judge.\n ____________________\n\n ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 20, 2019\n ____________________\n\n Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. Douglas Hollway’s year-and-a-\nhalf long employment with Canadian Pacific ended after he\nreceived multiple suspensions for violating safety standards\nand other work rules. The final chapter came when Holloway\nsustained an injury in a vehicle collision while not wearing a\nseatbelt. When combined with Holloway’s prior record of\ninfractions, this new safety-standard violation was enough for\n\f2 No. 18-2431\n\nthe company to terminate Holloway. In his ensuing lawsuit,\nHolloway alleged he was fired not for violating Canadian\nPacific’s rules, but instead for reporting a workplace injury.\nWe agree with the district court that the record evidence does\nnot support his contention and therefore aﬃrm.\n I\n Canadian Pacific hired Douglas Holloway as a conductor\nin July 2014. In short order he found himself the subject of\nseveral disciplinary actions. In November 2014, for example,\nCanadian Pacific advised Holloway that his attendance record\nwas lacking and that he needed to be available to work when\nthe company needed him. By way of another example,\nHolloway received a 10-day suspension in May 2015 for not\nproviding his engineer with important safety information\nwhile working on a railcar. In time a pattern emerged, as\nHolloway received suspensions for violating Canadian\nPacific’s safety and work rules again in August 2015 and\nSeptember 2015.\n The final straw came on October 18, 2015. It was then that\nHolloway and another employee, J.S., were doing a “switch\njob”—railroad lingo for moving railcars as part of building a\ntrain. The work required J.S. and Holloway to use an all-pur-\npose vehicle to move around Canadian Pacific’s Bensenville\nYard. J.S. drove while Holloway rode in the passenger seat,\nbut neither fastened a seatbelt. Holloway also never inspected\nthe vehicle for safety defects, later saying he assumed J.S. had\ndone so. A subsequent inspection revealed that the vehicle\nneeded repairs—for example, zip ties were being used to hold\na makeshift windshield covered with dirt and scratches to the\nvehicle’s frame.\n\fNo. 18-2431 3\n\n At one point during the assembly work, J.S. crashed the\nvehicle into a pole. Both J.S. and Holloway sustained injuries\nthat required medical care at a hospital. The particular treat-\nment Holloway received triggered an obligation under the\nFederal Railway Act for Canadian Pacific to report his injury\nto the Federal Railroad Administration. J.S.’s injury was mi-\nnor and did not require such reporting.\n After the accident, Canadian Pacific notified J.S. and\nHolloway that a formal investigation and hearing would\nfollow. In the months leading to the hearing, however, J.S.\nwas furloughed and therefore did not attend. Holloway\nattended the hearing along with a representative from the\nUnited Transportation Union. The hearing oﬃcer determined\nthat Holloway had violated Canadian Pacific’s seatbelt\nrequirement and a separate rule requiring him to inspect for\nand report safety defects with the company’s vehicles. The\nhearing oﬃcer’s final report canvassed Holloway’s lengthy\ndiscipline history and led to a recommendation of\ntermination. Canadian Pacific accepted the recommendation\nand fired Holloway in December 2015. At no point did the\ncompany discipline J.S. for her role in the accident.\n Holloway unsuccessfully appealed his dismissal through\nthe procedures in the collective bargaining agreement\nbetween his union and Canadian Pacific. After receiving\npermission to sue from the Equal Employment Opportunity\nCommission, he brought several claims against Canadian\nPacific in district court.\n The district court denied Holloway relief on each of his\nclaims. Now on appeal, he challenges only the district court’s\naward of summary judgment to Canadian Pacific on his claim\n\f4 No. 18-2431\n\nfor unlawful retaliation in violation of the Federal Railway\nSafety Act.\n II\n We review the district court’s grant of summary judgment\nin favor of Canadian Pacific de novo. See Rahn v. Board of\nTrustees of N. Ill. Univ., 803 F.3d 285, 287 (7th Cir. 2015).\n The Federal Railway Safety Act prohibits a railroad from\ndischarging or otherwise discriminating against an employee\n“if such discrimination is due, in whole or in part, to the\nemployee’s lawful, good faith act done … to notify, or attempt\nto notify, the railroad carrier or the Secretary of\nTransportation of a work-related personal injury or work-\nrelated illness of an employee.” 49 U.S.C. § 20109(a)(4). To\nprevail on such a claim, Holloway needed to show, among\nother things, that his reporting of his workplace injury from\nthe October 2015 incident contributed to Canadian Pacific’s\ndecision to fire him. See Armstrong v. BNSF Ry. Co., 880 F.3d\n377, 381 (7th Cir. 2018) (citing 49 U.S.C. § 20109(d)(2)(A) and\n29 C.F.R. § 1982.104(e)(2)); see also Araujo v. New Jersey Transit\nRail Operations, Inc., 708 F.3d 152, 156–57 (3d Cir. 2013)\n(applying the same statutory standards).\n Holloway argues, as he did in the district court, that “[i]t\nis obvious that the protected activity was a contributing factor\nin the adverse action.” He sees the point as obvious because\nhe was fired only after he came forward and reported his\nworkplace injury. Holloway also contends that Canadian\nPacific’s decision not to fire J.S. for her involvement in the\naccident supports his allegation of retaliation. These\ncontentions fall short on the law and the facts.\n\fNo. 18-2431 5\n\n Our caselaw is clear that a plaintiﬀ alleging retaliation in\nviolation of § 20109(a)(4) cannot point only to the sequence of\nevents—an injury report followed by a later dismissal—to\nshow that the complaint was a contributing factor in the ad-\nverse employment action. See Koziara v. BNSF Ry. Co., 840\nF.3d 873, 877–78 (7th Cir. 2016) (rejecting the district court’s\nconclusion that the plaintiﬀ’s injury report was a contributing\nfactor to the adverse action simply because it “initiated the\nevents that led to his discipline”); see also Armstrong, 880 F.3d\nat 382 (explaining that the phrase “contributing factor” is a\nstandard of causation that does not eliminate the requirement\nfor a plaintiﬀ to present evidence of an improper motive).\n Something more than the mere sequence of events is re-\nquired, and Holloway has failed to provide that something\nmore. At summary judgment he came forward with no evi-\ndence, direct or circumstantial, that his termination reflected\nCanadian Pacific’s retaliation for reporting his injury. He\npointed to nothing showing that anyone within the company\nfaulted or was frustrated with him for reporting the October\n2015 accident. Nor did he identify any evidence suggesting\nanimus toward him—for example, that his supervisor had\nbeen looking for a reason to fire him and used his report of\nthe accident as the reason to let him go.\n The record evidence is altogether diﬀerent. What it shows\nis that, in fewer than two years with Canadian Pacific,\nHolloway repeatedly violated the company’s work and safety\nrules and was eventually fired for accumulating so many\nviolations. That he happened during the same time period to\nbe involved in a workplace accident and to have reported an\ninjury does not—without more—create an inference that\n\f6 No. 18-2431\n\nreporting his injury contributed to Canadian Pacific’s decision\nto terminate him.\n Holloway is right to observe that J.S. was not disciplined\nfor the October 2015 accident. But the observation does not go\nvery far, as J.S.’s disciplinary history paled in comparison to\nHolloway’s record. J.S. had received a reprimand and coun-\nseling on one prior occasion but otherwise had a clean record\nwith Canadian Pacific. Nothing in the Federal Railway Safety\nAct precluded the company from taking stock of Holloway’s\nemployment history, beset as it was with disciplinary prob-\nlems, and proceeding to dismiss him.\n Holloway’s comparison of his circumstances to those of\nJ.S. misfires on another front. He altogether overlooks that he\nand J.S. engaged in the same protected activity—reporting an\ninjury to Canadian Pacific. See 49 U.S.C. § 20109(a)(4). But\neven though J.S. engaged in the same protected activity, she\nwas not disciplined. So Holloway’s comparison of the treat-\nment he and J.S. received from Canadian Pacific only rein-\nforces that the company did not retaliate against him for his\nengaging in protected activity, but rather fired him because of\nhis long record of disciplinary problems.\n We owe a final word to Holloway’s assertion that the dis-\ntrict court impermissibly weighed evidence and made credi-\nbility determinations when granting summary judgment to\nCanadian Pacific. We have reviewed the record and find no\nsupport for this contention. The district court provided a thor-\nough and detailed recounting of the evidence brought forth\nby both parties and in no way strayed from the standards gov-\nerning summary judgment.\n For these reasons, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369499/", "author_raw": "SCUDDER, Circuit Judge"}]}	FLAUM	BARRETT	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592246/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,264		Fred Gates v. Board of Education of the City	2019-02-20	17-3143	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before MANION, HAMILTON, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "David Frank Hamilton", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐3143 \nFRED GATES, \n Plaintiff‐Appellant, \n v. \n\nBOARD OF EDUCATION OF THE CITY OF CHICAGO, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Northern District of Illinois, Eastern Division. \n No. 1:15‐CV‐1394 — Robert M. Dow, Jr., Judge. \n ____________________ \n\n ARGUED SEPTEMBER 20, 2018 — DECIDED FEBRUARY 20, 2019 \n ____________________ \n\n Before MANION, HAMILTON, and SCUDDER, Circuit Judges. \n HAMILTON, Circuit Judge. Plaintiﬀ Fred Gates testified that \nhis direct supervisor, Rafael Rivera, addressed him with the \nN‐word twice, and once threatened to write up his “black \nass.” The district court granted the employer’s motion for \nsummary judgment on Gates’s claim for a racially hostile \nwork environment under Title VII of the Civil Rights Act of \n1964, 42 U.S.C. § 2000e‐2. In granting summary judgment for \nthe defendant‐employer, the district court noted that Gates \n\f2 No. 17‐3143 \n\nfaced a high bar, “as ‘[t]he workplace that is actionable is one \nthat is ‘hellish.’” Gates v. Board of Education of the City of Chi‐\ncago, No. 15‐CV‐1394, 2017 WL 4310648, at 13 (N.D. Ill. Sept. \n28, 2017), quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, \n1013 (7th Cir. 1997) (alteration in original). The court ulti‐\nmately decided that Rivera’s comments were not severe or \npervasive enough to rise to the level of a hostile work envi‐\nronment, an adverse employment action that could entitle \nGates to relief under Title VII. Id. at 15. \n The district court’s analysis erred in two respects. First, it \nrelied on the “hellish” standard, which is not a standard a \nplaintiﬀ must satisfy. See Jackson v. County of Racine, 474 F.3d \n493, 500 (7th Cir. 2007); Johnson v. Advocate Health and Hospitals \nCorp., 892 F.3d 887, 901 (7th Cir. 2018), quoting Harris v. Fork‐\nlift Systems, Inc., 510 U.S. 17, 21–22 (1993) (“Title VII comes \ninto play before the harassing conduct leads to a nervous \nbreakdown.”). Second, the district court failed to focus on the \ndiﬀerence in our hostile environment cases between having \nthe plaintiﬀ’s co‐workers show racial hostility and having the \nplaintiﬀ’s supervisor show racial hostility, especially in using \nsuch poisonous racial epithets as shown in the evidence here. \nSee, e.g., Robinson v. Perales, 894 F.3d 818, 828–29 (7th Cir. \n2018); Rodgers v. Western‐Southern Life Insurance Co., 12 F.3d \n668, 675 (7th Cir. 1993). While we aﬃrm all other portions of \nthe district court’s judgment, we reverse on the claim for a ra‐\ncially hostile environment. \nI. Factual and Procedural Background \n A. Facts Relevant to Summary Judgment \n Our account of the facts reflects the defendant Board’s \nchoice to move for summary judgment. As required, we give \n\fNo. 17‐3143 3\n\nplaintiﬀ Gates the benefit of conflicts in the evidence and \nmake reasonable inferences in his favor. Terry v. Gary Commu‐\nnity School Corp., 910 F.3d 1000, 1004 (7th Cir. 2018); Johnson, \n892 F.3d at 893. The Board and its witnesses will be free to \noﬀer their own conflicting evidence at trial, and we do not \nvouch for the objective truth of Gates’s testimony that we \nmust credit in this appeal. \n Gates is an African‐American male born in 1965. He has \nbeen a building engineer with the Chicago Board of Educa‐\ntion since 2004. In 2010, Gates was hired to fill the sole engi‐\nneer position at William C. Goudy Technology Academy. He \nreported to school Principal Pamela Brandt until December \n2012, when Rafael Rivera became his supervisor. Rivera was \na facilities engineer who oversaw engineering work at sixteen \nschools, including Gates’s. Because Rivera supervised so \nmany schools, he and Gates saw each other in person only \nthree times or so per month. \n Gates’s issues with Rivera began in June 2013. Gates testi‐\nfied that at a performance meeting that month, Rivera told \nhim: “you will not be promoted because of your age and be‐\ncause you’re black[.]” Despite Rivera’s comment, Gates still \napplied for a promotion in July and August of 2013, which he \ndid not receive. Gates testified that Rivera prevented him \nfrom getting a better job. \n According to Gates, in the late summer of 2013, Rivera’s \nbehavior became increasingly oﬀensive. Gates testified that \non several occasions Rivera uttered racial epithets against \nhim. Gates described one meeting with Rivera at his school in \nJuly or August of 2013. Rivera passed gas and then asked \nGates why he did not laugh in response. Gates responded that \nhe did not know why he should laugh or why it was funny. \n\f4 No. 17‐3143 \n\nRivera said “you know what they call that[?]” Gates asked \n“call what?” and Rivera responded “[w]hen someone fart and \na black guy’s sitting there.” Gates said “no,” and Rivera an‐\nswered, “you call that a shit‐sniﬃng nigger.” Gates claimed \nthat he complained about this incident to Rivera’s supervisor \nat the time, Ms. Bilqis Jacob‐El. Gates testified that Jacob‐El \nasked him whether he had told anyone else about the com‐\nment. He said no. She then instructed Gates to keep to himself \nthe details of his encounter with Rivera. \n Gates also claimed that in November 2013, Rivera again \ncame to Gates’s school and spoke with him. At this meeting, \nRivera yelled at Gates, telling him “you will kiss the princi‐\npal’s ass to make her happy” or Rivera “would write [him] \nup, which would cause [Gates] to get low work evaluations \nand get fired.” Gates testified later that Rivera specifically \nthreatened to write Gates’s “black ass up.” Gates also testified \nthat in a March 2014 meeting, Rivera ordered him to sit down, \nprompting the following exchange: \n I said I don’t want to sit down, Rafael. He said, \n well, I’m your boss. I’m ordering you to sit \n down. So I said I’m not going to sit down. He \n said I’m tired of you people. I said who are you \n referring to? He said, nigger, you know what \n I’m talking about. So I walked out of the library. \n On appeal, the Board argued that Rivera could not have \nexposed Gates to a racially hostile work environment because \nhis interactions with Gates were too infrequent. The Board \nnoted that Rivera made his oﬀending comments over the \ncourse of six months, Gates saw Rivera only three times or so \nper month, and from November 2013 to November 2014, \nGates worked only eleven days. (Gates was absent so often \n\fNo. 17‐3143 5\n\nbecause during that year he took multiple approved leaves \nfrom work, including bereavement leave for his father’s \ndeath, a one‐month sick leave, leave under the Family Medi‐\ncal Leave Act to care for his grandfather, and then a nearly \none‐month military leave.) Gates testified that he used the \none‐month sick leave in December 2013 to seek medical atten‐\ntion for homicidal thoughts he was experiencing towards Ri‐\nvera, Principal Brandt, and his school’s vice principal. The \nhomicidal thoughts, Gates testified, were brought on by the \ndiscrimination he faced at work. \n Rivera began to prepare a pre‐discipline notice for Gates \nin December 2013 citing uncompleted work orders at Gates’s \nschool.1 Rivera did not actually give this notice to Gates. Ri‐\nvera later wrote up and issued Gates a diﬀerent pre‐discipline \nnotice on March 17, 2014, just before the library incident. The \nnotice told Gates to report to a pre‐discipline hearing to ad‐\ndress the issues with his performance on March 20, 2014. Ac‐\ncording to Gates, the library incident in which Rivera called \nhim the N‐word for a second time happened on March 17 or \n18 of 2014. Rivera issued Gates a second pre‐discipline notice \non March 19, 2014 citing insubordination. The second notice \nscheduled a pre‐discipline hearing on March 25, 2014. At the \nfirst pre‐discipline hearing on March 20, Gates and a repre‐\nsentative from his union met with Rivera. Gates told his union \nrepresentative that he believed he was being discriminated \nagainst at work, and the representative advised him to hire an \nattorney. Gates did not attend the March 25 hearing because \n \n 1 Pre‐discipline notices notify employees that there is a problem with \n\ntheir work or behavior and that pre‐discipline hearings will be held with \nemployees and their union representatives to decide whether discipline is \nwarranted. \n\f6 No. 17‐3143 \n\nhe had been injured on the job in the meantime. No formal \ndisciplinary action was taken against Gates. After his injury, \nGates went on workers’ compensation leave, and during that \ntime began working a second job at the University of Illinois‐\nChicago. Rivera informed an employee with the Board’s legal \ndepartment that Gates had taken several extensive leaves and \nthen found a second job. Gates believed that Rivera took this \naction to have him fired. \n When Gates returned from his leave in November 2014, he \nwas assigned to the Far South Side or Southwest Collabora‐\ntive, a group of traveling building engineers who work at dif‐\nferent schools throughout the southwest side of Chicago. In \nthe position at William C. Goudy Technology Academy that \nGates held before his leaves, he was a Class 3 engineer (the \nlowest‐paid of three classes), earning around $82,000 to \n$87,000 a year.2 When Gates testified at his deposition in 2016, \nhe was a Class 2 engineer with the Southwest Collaborative \nearning between $94,000 and $97,000 a year. \n B. Proceedings in Civil Rights Agencies and the District Court \n Gates never filed a formal internal complaint with the \nBoard about the discrimination he says he suﬀered. Instead, \non April 14, 2014, he filed a formal charge of discrimination \nwith the Illinois Department of Human Rights and the United \nStates Equal Employment Opportunity Commission. The \nEEOC issued Gates a notice of his right to sue. Gates then filed \na five‐count complaint against the Board in the district court \n\n \n 2 The term Chief Engineer was abolished in 2012 under the terms of a \n\ncollective bargaining agreement. When the title was in use, it applied au‐\ntomatically to any building engineer appointed to a school with only one \nengineer—so Gates was the Chief Engineer at Goudy. \n\fNo. 17‐3143 7\n\nalleging age and race discrimination and retaliation. The \nBoard eventually moved for summary judgment on all claims, \nand the district court granted the motion. Gates v. Board of Ed‐\nucation of the City of Chicago, No. 15‐CV‐1394, 2017 WL \n4310648, at 1 (N.D. Ill. Sept. 28, 2017). \n As the district court noted, neither Gates’s complaint nor \nhis answers to the Board’s interrogatories said that Rivera had \never used the terms “black,” “black ass,” “age,” or the N‐\nword. Id. at 7. Those specifics surfaced for the first time dur‐\ning Gates’s deposition testimony. The district court carefully \nconsidered whether to treat those portions of his testimony as \npart of the summary judgment evidence and ultimately de‐\ncided to consider this testimony. That was probably the cor‐\nrect decision, and in any event that point is not disputed on \nappeal. Still, the district court concluded that Gates could not \nsuﬃciently establish that he suﬀered a racially hostile work \nenvironment in violation of Title VII. The court explained that \n“the threshold for plaintiﬀs is high, as “[t]he workplace that \nis actionable is one that is ‘hellish.’” Id. at 13, quoting Perry v. \nHarris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997). The \nharassing conduct, the court continued, must be severe or per‐\nvasive and Rivera’s behavior towards Gates was neither. Id. at \n14–15.3 \n \n \n 3 The district court also granted summary judgment for the Board on \n\nGates’s other claims for age and race discrimination based on a denial of \na promotion and the pre‐discipline notices plus a negative performance \nreview, as well as his retaliation claims based on a denial of a promotion \nand the pre‐discipline notices plus a negative performance review. Gates, \n2017 WL 4310648, at 13, 17–18. Gates does not challenge those aspects of \nthe judgment on appeal. \n\f8 No. 17‐3143 \n\nII. Analysis \n A. Standard of Review \n We review de novo the district court’s grant of summary \njudgment. Jackson v. County of Racine, 474 F.3d 493, 498 (7th \nCir. 2007); Johnson v. Advocate Health and Hospitals Corp., 892 \nF.3d 887, 894 (7th Cir. 2018); Whitaker v. Wisconsin Dep’t of \nHealth Services, 849 F.3d 681, 684 (7th Cir. 2017). Summary \njudgment is proper where “the movant shows that there is no \ngenuine dispute as to any material fact and the movant is en‐\ntitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In \nour review, we “constru[e] all facts, and draw[] all reasonable \ninferences from those facts, in favor of the nonmoving party.” \nWhittaker v. Northern Illinois University, 424 F.3d 640, 644–45 \n(7th Cir. 2005), quoting Telemark Development Group Inc. v. \nMengelt, 313 F.3d 972, 976 (7th Cir. 2002). \n B. Racially Hostile Work Environment \n The district court ruled that Gates provided insuﬃcient \nevidence to establish that he was subject to a hostile work en‐\nvironment. To prevail on a Title VII claim, a plaintiﬀ must \nshow that \n [1] he is a member of a class protected by the \n statute, [2] that he has been the subject of some \n form of adverse employment action (or that he \n has been subjected to a hostile work environ‐\n ment), and [3] that the employer took this ad‐\n verse action on account of the plaintiﬀ’s mem‐\n bership in the protected class. \nAbrego v. Wilkie, 907 F.3d 1004, 1012 (7th Cir. 2018), quoting \nMorgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013). Subject‐\ning an employee to a hostile work environment counts as an \n\fNo. 17‐3143 9\n\nadverse action (“unlawful employment practice”) within the \nmeaning of Title VII’s prohibition of race discrimination in 42 \nU.S.C. § 2000e‐2(a). E.g., Alexander v. Casino Queen, Inc., 739 \nF.3d 972, 980, 982 (7th Cir. 2014). \n To prove that an employment environment was actiona‐\nbly hostile, a plaintiﬀ must show that “(1) he was subject to \nunwelcome harassment; (2) the harassment was based on race \n(or another protected category); (3) the harassment was severe \nor pervasive to a degree that altered the conditions of employ‐\nment and created a hostile or abusive work environment; and \n(4) there is a basis for employer liability.” Robinson v. Perales, \n894 F.3d 818, 828 (7th Cir. 2018), citing Meritor Savings Bank, \nFSB v. Vinson, 477 U.S. 57, 66–72 (1986), Johnson, 892 F.3d at \n900–01, and Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017); see \nalso Johnson, 892 F.3d at 900.4 Relevant to this inquiry are “the \nseverity of the alleged conduct, its frequency, whether it [wa]s \nphysically threatening or humiliating (or merely oﬀensive), \nand whether it unreasonably interfere[d] with the employee’s \n \n 4 “Sometimes our cases phrase the test differently, looking instead for \n\nevidence that the workplace was both subjectively and objectively offen‐\nsive—either in lieu of the first prong—that the employee was subject to \nunwelcome harassment—or the third prong—whether the harassment \nwas severe or pervasive enough to rise to the level of a hostile work envi‐\nronment.” Johnson, 892 F.3d at 900, citing Cole v. Board of Trustees of North‐\nern Illinois University, 838 F. 3d 888, 896 n.6 (7th Cir. 2016); see also Alexan‐\nder, 739 F.3d at 982 (requiring plaintiffs to show “(1) that the work envi‐\nronment was both subjectively and objectively offensive; (2) that the har‐\nassment was based on membership in a protected class; (3) that the con‐\nduct was severe or pervasive; and (4) that there is a basis for employer \nliability.”). “In the end, we have concluded that the inquiry is the same” \nunder these different phrasings of the test. Johnson, 892 F.3d at 900, citing \nCole, 838 F.3d at 896 n.6. \n \n\f10 No. 17‐3143 \n\nwork performance.” Robinson, 894 F.3d at 828; see Jackson, 474 \nF.3d at 499; see Whittaker, 424 F.3d at 645. To withstand sum‐\nmary judgment, Gates needed to provide evidence suﬃcient \nto allow a reasonable jury to find that Rivera’s conduct “was \nsevere or pervasive enough to constitute a hostile work envi‐\nronment.” Robinson, 894 F.3d at 828. \n The district court identified these inquiries properly but \nerred in their application. Most important, the court incor‐\nrectly stated that “the threshold for plaintiﬀs is high, as “[t]he \nworkplace that is actionable is one that is ‘hellish.’” Gates, 2017 \nWL 4310648, at 13, quoting Perry, 126 F.3d at 1013 (alteration \nin original). While a “hellish” workplace is surely actionable, \nplaintiﬀs’ evidence need not show a descent into the Inferno. \nIn 2007, we rejected the so‐called “hellish” standard in Jackson \nv. County of Racine, 474 F.3d at 500, and in other decisions after \nthe district court’s decision in this case, such as Johnson v. Ad‐\nvocate Health and Hospitals Corp., 892 F.3d at 901, we have again \nmade the point. In Jackson we said that language in our earlier \nopinions indicating that an environment must reach the point \nof “hellishness” before becoming actionable is impossible to \nreconcile with Harris v. Forklift Systems, Inc., where the Su‐\npreme Court wrote: \n Title VII comes into play before the harassing \n conduct leads to a nervous breakdown. A dis‐\n criminatorily abusive work environment, even \n one that does not seriously aﬀect employees’ \n psychological well‐being, can and often will de‐\n tract from employees’ job performance, discour‐\n age employees from remaining on the job, or \n keep them from advancing in their careers … \n The appalling conduct alleged in Meritor, and \n\fNo. 17‐3143 11\n\n the reference in that case to environments “so \n heavily polluted with discrimination as to de‐\n stroy completely the emotional and psychologi‐\n cal stability of minority group workers,” merely \n present some especially egregious examples of \n harassment. They do not mark the boundary of \n what is actionable. \n510 U.S. at 22, quoting Meritor Savings Bank, FSB v. Vinson, 477 \nU.S. 57, 66 (1986). In Jackson, pointing to this same passage \nfrom Harris, we clarified: “The Supreme Court’s decision in \nHarris established that something short of the Ninth Ring” \nmay violate Title VII. Jackson, 474 F.3d at 500; see also Alamo \nv. Bliss, 864 F.3d 541, 550 (7th Cir. 2017) (“a workplace need \nnot be ‘hellish’ to constitute a hostile work environment”), cit‐\ning Jackson, 474 F.3d at 500. \n The issue is whether the discriminatory conduct Gates tes‐\ntified to qualifies as suﬃciently severe or pervasive to alter the \nconditions of his work environment. The principal racial har‐\nassment Gates described was at the hand of Rivera. Three in‐\ncidents are key: (1) the 2013 “joke” in which Rivera called \nGates the N‐word; (2) the 2013 meeting in which Rivera \nthreated to write up Gates’s “black ass”; and (3) the 2014 “you \npeople” comment in which Rivera again addressed Gates us‐\ning the N‐word.5 The district court decided at summary judg‐\nment that as a matter of law, this level of harassment from a \n\n \n 5 Gates pointed to additional harassing conduct including the pre‐dis‐\n\nciplinary notices that Rivera issued him, racially offensive conduct by \nPrincipal Brandt, and Rivera’s general pattern of speaking to Gates in a \n“demeaning and unprofessional manner.” However, the three incidents \ndiscussed here are the most severe comments actually considered by the \ndistrict court at summary judgment and are sufficient for us to decide that \n\f12 No. 17‐3143 \n\nsupervisor was not severe or pervasive enough to render an \nemployee’s work environment hostile. The court concluded \nthat our precedents showed generally “that one or two utter‐\nances of the N‐word are not severe or pervasive enough to rise \nto the level of establishing liability absent an unusually se‐\nvere, physically threatening, or humiliating incident.” Gates, \n2017 WL 4310648, at 14. The district court’s analysis is \nflawed, however, because it overlooked the fact that in most \nof the cases it cited rejecting hostile work environment claims, \na co‐worker as opposed to a supervisor uttered the racially of‐\nfensive language. This distinction is critical in general, and in \nthis case. See Nichols v. Michigan City Plant Planning Dep’t, 755 \nF.3d 594, 601 (7th Cir. 2014) (aﬃrming summary judgment for \nemployer; one use of racial epithet and several other incidents \nof harassment by co‐workers were not severe or pervasive \nenough to establish hostile work environment); Smith v. \nNortheastern Illinois University, 388 F.3d 559, 562 n. 2, 566–67 \n(7th Cir. 2004) (aﬃrming summary judgment on one of plain‐\ntiﬀ’s hostile environment claims where that plaintiﬀ heard de‐\nfendant—who may or may not have been her supervisor—\nutter only one racist comment not directed at her); Rodgers v. \nWestern‐Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir. \n1993) (multiple instances of supervisor using the N‐word in \nemployee’s presence established actionable hostile work en‐\nvironment); Shanoﬀ v. Illinois Dep’t of Human Services, 258 F.3d \n696, 698–99, 705–06 (7th Cir. 2001) (hostile work environment \nclaim should have withstood summary judgment motion \n\n \nthe district erred in granting summary judgment to the Board on Gates’s \nTitle VII hostile work environment claim. They are also the only three \ncomments that Gates used on appeal to argue that his work environment \nwas offensive enough subjectively and objectively to be actionable. \n\fNo. 17‐3143 13\n\nwhere plaintiﬀ’s supervisor repeatedly harassed him with de‐\nrogatory comments about his race and religion). 6 \n We have repeatedly treated a supervisor’s use of racially \ntoxic language in the workplace as much more serious than a \nco‐worker’s. See, e.g., Robinson, 894 F.3d at 828–29; Rodgers, 12 \nF.3d at 675; see also Dandy v. United Parcel Service, Inc., 388 \nF.3d 263, 271 (7th Cir. 2004) (use of the N‐word by supervisors \nhas particularly severe impact on work environments). This is \nparticularly true when supervisors address these derogatory \nand humiliating remarks directly to the employees in ques‐\ntion. See Johnson, 892 F.3d at 902 (“Comments made to non‐\nplaintiﬀ co‐workers carry less weight in the evaluation of a \nhostile environment claim, but they are not irrelevant.”); \nDandy, 388 F.3d at 271 (in evaluating whether oﬀensive lan‐\nguage created hostile work environment, it is necessary to \nnote “whether the remarks were stated directly to the plaintiﬀ \nor whether the plaintiﬀ heard them secondhand[.] That is not \nto say that racial epithets must be stated directly to a plaintiﬀ \nto create an objectively hostile work environment. Repeated \nuse of such highly oﬀensive terms … may create an objec‐\ntively hostile work environment, even if they are heard \nsecondhand.”), citing McPhaul v. Board of Commissioners of \n \n 6 The district court found more direct support in Roberts v. Fairfax \n\nCounty Public Schools, 858 F. Supp. 2d 605, 609 (E.D. Va. 2012), where a \nsupervisor (a teacher) threatened her subordinate and called her by the N‐\nword. The case came before the Eastern District of Virginia court on De‐\nfendant Fairfax County Public School’s motion for summary judgment. Id. \nat 606–07. The court held that this conduct was not severe or pervasive \nenough to create a hostile work environment. Id. at 609–11. But this deci‐\nsion runs contrary to our circuit’s precedents that distinguish between su‐\npervisor and co‐worker conduct as well as between direct and indirect \nharassment. \n\f14 No. 17‐3143 \n\nMadison County, 226 F.3d 558, 567 (7th Cir. 2000), overruled on \nother grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. \n2013). \n In Rodgers v. Western‐Southern Life Insurance Co., we af‐\nfirmed a verdict for an employee where his supervisor used \nthe N‐word multiple times in his presence and made several \nother racially oﬀensive comments. Rodgers, 12 F.3d at 671, \n676–78. We explained: “Perhaps no single act can more \nquickly ‘alter the conditions of employment and create an \nabusive working environment,’ than the use of an unambigu‐\nously racial epithet such as ‘nigger’ by a supervisor in the \npresence of his subordinates.” Id. at 675, quoting Meritor, 477 \nU.S. at 67. “[A] supervisor’s use of the [N‐word] impacts the \nwork environment far more severely than use by co‐equals.” \nId. at 675. \n In Johnson v. Advocate Health and Hospitals Corp., we evalu‐\nated plaintiﬀs’ claim that their “supervisors subjected [them] \nto oﬀensive and derogatory racial comments, creating a hos‐\ntile work environment.” 892 F.3d at 893. Plaintiﬀs testified \nthat their supervisors made racially‐charged comments di‐\nrectly to them and others and used the N‐word in their pres‐\nence. Id. at 901–03. We held that evidence that supervisors en‐\ngaged in this atrocious conduct “should allow a reasonable \njury to find that each of the plaintiﬀs experienced a racially \nhostile working environment.” Id. at 904. \n In Robinson v. Perales, we considered a hostile work envi‐\nronment claim where Robinson, a biracial police oﬃcer with \nthe University of Illinois at Chicago presented evidence that \nPerales, his lieutenant and supervisor, used the N‐word in his \npresence on two occasions, once in reference to Robinson him‐\nself. 894 F.3d at 823–24. The district court granted defendant \n\fNo. 17‐3143 15\n\nPerales summary judgment on Robinson’s hostile work envi‐\nronment claim. We reversed the district court’s judgment \n“that a few instances of the use of this particular epithet [the \nN‐word] were not significant enough to meet the standard for \nhostile environment.” Id. at 828. We emphasized that “Perales \nwas not simply a co‐worker; he was a supervisor with direct \nauthority over Robinson.” Id. at 828. \n In short, when the harassment involves such appalling \nracist language in comments made directly to employees by \ntheir supervisors, we have not aﬃrmed summary judgment \nfor employers. \n The district court also found that the harassment Gates de‐\nscribed was too infrequent to be pervasive (three racial slurs \nin a sixth‐month period of a four‐year employment), not ob‐\njectively oﬀensive, and not “particularly ‘severe,’ physically \nthreatening, or humiliating.” Gates, 2017 WL 4310648, at 15. \nIn support of its holding, the district court cited cases that fit \ninto one of four distinguishable categories: (1) the alleged ac‐\ntions or comments were comparably horrific to using the N‐\nword but were done or said by a co‐worker, not a supervisor; \n(2) the actions or comments alleged were made by a supervi‐\nsor but were more ambiguous or significantly less oﬀensive \nthan addressing an employee with the N‐word; (3) the alleged \nremarks were very oﬀensive and made by a supervisor but \nwere not spoken directly to the plaintiﬀ; or (4) the conduct or \nremarks were evaluated under the now‐rejected “hellish” \nstandard. Id. at 13–15. See Nichols, 755 F.3d at 601 (co‐worker \nusing racial epithet); McPherson v. City of Waukegan, 379 F.3d \n430, 434–35, 439 (7th Cir. 2004) (several sexually‐suggestive \ncomments along the lines of asking the colors of plaintiﬀ’s and \nothers’ bras and underwear did not alone establish hostile \n\f16 No. 17‐3143 \n\nwork environment); Patt v. Family Health Systems, Inc., 280 \nF.3d 749, 751, 754 (7th Cir. 2002) (no actionable hostile work \nenvironment because of eight gender‐based comments by \nthen surgery department chief, when only two such com‐\nments were made directly to plaintiﬀ and neither referred to \nher specifically);7 Baskerville v. Culligan International Co., 50 \nF.3d 428, 430 (7th Cir. 1995) (applying “hellish” standard, \ncourt did “not think that these incidents [sexually‐harassing \ncomments], spread over seven months, could reasonably be \nthought to add up to sexual harassment.”); North v. Madison \nArea Ass’n for Retarded Citizens‐Developmental Centers Corp., \n844 F.2d 401, 409 (7th Cir. 1988) (two or three oﬀensive state‐\nments that at most “might be considered as racial slurs” did \nnot establish “a suﬃciently pervasive atmosphere of racial \nharassment”); Poullard v. McDonald, 829 F.3d 844, 858–59 (7th \nCir. 2016) (no actionable hostile work environment where pri‐\nmary allegations concerned three incidents of supervisor har‐\nassment that had at best “a tenuously arguable connection to \nrace”; the supervisor comments made “were at worst mild \nand ambiguous”);8 Ford v. Minteq Shapes & Services, Inc., 587 \nF.3d 845, 846–48 (7th Cir. 2009) (co‐worker’s comments refer‐\nring to plaintiﬀ Ford as “black man” and “black African‐\nAmerican,” Ford’s supervisor’s comment that “he didn’t have \n \n 7 The defendants’ brief in the Patt case made clear that “only two of \n\nthe alleged comments were heard by Dr. Patt [plaintiff] directly” and that \n“Dr. Patt acknowledge[d] that neither of the references were directed to‐\nward her and admitted that neither statement offended her.” Brief for De‐\nfendants‐Appellees at 26, Patt v. Family Health Systems, Inc., 280 F.3d 749 \n(7th Cir. 2002) (No. 00‐2948). \n 8 The district court here cited the district court opinion in Poullard. See \n\nGates, 2017 WL 4310648, at 15, citing Poullard v. Shinseki, No. 12 C 7497, \n2015 WL 1428105, at 11 (N.D. Ill. Mar. 26, 2015). \n\fNo. 17‐3143 17\n\nto worry about losing his job because Minteq [employer] \nwanted to appear integrated[,]” another supervisor’s com‐\nment calling Ford a gorilla, and Minteq not letting Ford bring \nhis grandchildren to work Christmas parties did not amount \nto hostile work environment); Whittaker v. Northern Illinois \nUniversity, 424 F.3d 640, 644–45 (7th Cir. 2005) (no actionable \nhostile work environment where gender‐based comments \nwere made “outside [plaintiﬀ’s] presence, and there [was] no \nevidence that she was aware of these defendants’ remarks \nduring her tenure with [employer].”). \n Gates testified to quite diﬀerent circumstances. His super‐\nvisor used race‐based epithets including the N‐word directly \nand in reference to him. The district court acknowledged the \nseverity of Rivera’s epithets, but its analysis did not address \nthe significance of the diﬀerences between supervisors and \nco‐workers and between direct and indirect harassment that \nare important in hostile work environment cases. Gates, 2017 \nWL 4310648, at *14, citing and quoting Cerros v. Steel Technol‐\nogies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (“there is no \n‘magic number of slurs’” needed to show hostile work envi‐\nronment, and “an unambiguously racial epithet falls on the \n‘more severe’ end of the spectrum”); Hrobowski v. Worthington \nSteel Co., 358 F.3d 473, 477 (7th Cir. 2004) (“Given American \nhistory, we recognize that the word ‘nigger’ can have a highly \ndisturbing impact on the listener.”). \n If the only evidence of racial harassment Gates had was a \nco‐worker’s use of the three epithets uttered by Rivera, we \nwould likely reach a diﬀerent conclusion in this case. Given \nRivera’s position as Gates’s supervisor, however, if a jury \ncredits Gates’s testimony about Rivera’s comments, it could \nreasonably find that Gates suﬀered an actionable hostile work \n\f18 No. 17‐3143 \n\nenvironment. Whether conduct is “‘suﬃciently severe or per‐\nvasive to alter the conditions of employment’ … depends on \n‘the severity of the allegedly discriminatory conduct, its fre‐\nquency, whether it is physically threatening or humiliating or \nmerely oﬀensive, and whether it unreasonably interferes with \nan employee’s work performance.’” Johnson, 892 F.3d at 900, \nquoting Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir. \n2009). A jury would likely have a diﬃcult time concluding \nthat a supervisor calling his employee the “N‐word” and \nthreatening to write up his “black ass” were not examples of \nharassing comments motivated by race. Although Rivera’s \nconduct was relatively infrequent and not “physically threat‐\nening” or “humiliating” in a public setting, it was severe and \nhumiliating. A reasonable jury could also find that it did in‐\nterfere with Gates’s work performance, not least because it led \nhim to take a leave from work to seek medical treatment. Su‐\npervisor conduct as severe and direct as described in Gates’s \ntestimony cannot be deemed insuﬃciently severe or perva‐\nsive as a matter of law. \n C. Waiver & Forfeiture of Remaining Claims \n Gates is entitled to a trial on his hostile environment case, \nbut he waived or forfeited all of his remaining claims. He ar‐\ngues, though, that he did not forfeit his Title VII retaliation \nclaim in the district court. We disagree. The Board’s motion \nsought summary judgment on all claims. In opposing sum‐\nmary judgment in the district court, Gates failed to assert that \nhe was subject to a hostile work environment in retaliation for \ncomplaining about the discrimination he says he suﬀered. He \ndid not specifically argue that Rivera or Principal Brandt cre‐\nated a hostile work environment because he reported their \n\fNo. 17‐3143 19\n\ndiscriminatory conduct to Jacob‐El or the EEOC. Gates did ar‐\ngue that he was retaliated against, but only in the form of not \nbeing promoted and being written up by Rivera. In his sum‐\nmary judgment memorandum, Gates also discussed two of \nthe instances of racially‐harassing conduct that he used to \nsupport his hostile work environment claim—the incident in \nwhich Rivera threatened to write up his “black ass” and the \nlibrary incident in which Rivera used the N‐word. However, \nhe never specifically argued that this conduct was retaliatory. \nPerhaps Gates could have linked those incidents to his claims \nof retaliation, but he did not. The district court was not re‐\nquired to address a claim or theory that plaintiﬀ did not as‐\nsert. \n The district court’s grant of summary judgment on Gates’s \nhostile work environment claim is REVERSED and the case is \nREMANDED for further proceedings on that claim consistent \nwith this opinion. In all other respects, the judgment of the \ndistrict court is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369517/", "author_raw": "David Frank Hamilton"}]}	MANION	HAMILTON	SCUDDER	1	{"MANION": ", Circuit", "HAMILTON": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592264/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,265		Douglas Holloway v. Soo Line Railroad Company	2019-02-20	18-2431	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2431\nDOUGLAS HOLLOWAY,\n Plaintiff-Appellant,\n v.\n\nSOO LINE RAILROAD COMPANY,\nd/b/a as Canadian Pacific,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:16-cv-09191 — Jorge L. Alonso, Judge.\n ____________________\n\n ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 20, 2019\n ____________________\n\n Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. Douglas Hollway’s year-and-a-\nhalf long employment with Canadian Pacific ended after he\nreceived multiple suspensions for violating safety standards\nand other work rules. The final chapter came when Holloway\nsustained an injury in a vehicle collision while not wearing a\nseatbelt. When combined with Holloway’s prior record of\ninfractions, this new safety-standard violation was enough for\n\f2 No. 18-2431\n\nthe company to terminate Holloway. In his ensuing lawsuit,\nHolloway alleged he was fired not for violating Canadian\nPacific’s rules, but instead for reporting a workplace injury.\nWe agree with the district court that the record evidence does\nnot support his contention and therefore aﬃrm.\n I\n Canadian Pacific hired Douglas Holloway as a conductor\nin July 2014. In short order he found himself the subject of\nseveral disciplinary actions. In November 2014, for example,\nCanadian Pacific advised Holloway that his attendance record\nwas lacking and that he needed to be available to work when\nthe company needed him. By way of another example,\nHolloway received a 10-day suspension in May 2015 for not\nproviding his engineer with important safety information\nwhile working on a railcar. In time a pattern emerged, as\nHolloway received suspensions for violating Canadian\nPacific’s safety and work rules again in August 2015 and\nSeptember 2015.\n The final straw came on October 18, 2015. It was then that\nHolloway and another employee, J.S., were doing a “switch\njob”—railroad lingo for moving railcars as part of building a\ntrain. The work required J.S. and Holloway to use an all-pur-\npose vehicle to move around Canadian Pacific’s Bensenville\nYard. J.S. drove while Holloway rode in the passenger seat,\nbut neither fastened a seatbelt. Holloway also never inspected\nthe vehicle for safety defects, later saying he assumed J.S. had\ndone so. A subsequent inspection revealed that the vehicle\nneeded repairs—for example, zip ties were being used to hold\na makeshift windshield covered with dirt and scratches to the\nvehicle’s frame.\n\fNo. 18-2431 3\n\n At one point during the assembly work, J.S. crashed the\nvehicle into a pole. Both J.S. and Holloway sustained injuries\nthat required medical care at a hospital. The particular treat-\nment Holloway received triggered an obligation under the\nFederal Railway Act for Canadian Pacific to report his injury\nto the Federal Railroad Administration. J.S.’s injury was mi-\nnor and did not require such reporting.\n After the accident, Canadian Pacific notified J.S. and\nHolloway that a formal investigation and hearing would\nfollow. In the months leading to the hearing, however, J.S.\nwas furloughed and therefore did not attend. Holloway\nattended the hearing along with a representative from the\nUnited Transportation Union. The hearing oﬃcer determined\nthat Holloway had violated Canadian Pacific’s seatbelt\nrequirement and a separate rule requiring him to inspect for\nand report safety defects with the company’s vehicles. The\nhearing oﬃcer’s final report canvassed Holloway’s lengthy\ndiscipline history and led to a recommendation of\ntermination. Canadian Pacific accepted the recommendation\nand fired Holloway in December 2015. At no point did the\ncompany discipline J.S. for her role in the accident.\n Holloway unsuccessfully appealed his dismissal through\nthe procedures in the collective bargaining agreement\nbetween his union and Canadian Pacific. After receiving\npermission to sue from the Equal Employment Opportunity\nCommission, he brought several claims against Canadian\nPacific in district court.\n The district court denied Holloway relief on each of his\nclaims. Now on appeal, he challenges only the district court’s\naward of summary judgment to Canadian Pacific on his claim\n\f4 No. 18-2431\n\nfor unlawful retaliation in violation of the Federal Railway\nSafety Act.\n II\n We review the district court’s grant of summary judgment\nin favor of Canadian Pacific de novo. See Rahn v. Board of\nTrustees of N. Ill. Univ., 803 F.3d 285, 287 (7th Cir. 2015).\n The Federal Railway Safety Act prohibits a railroad from\ndischarging or otherwise discriminating against an employee\n“if such discrimination is due, in whole or in part, to the\nemployee’s lawful, good faith act done … to notify, or attempt\nto notify, the railroad carrier or the Secretary of\nTransportation of a work-related personal injury or work-\nrelated illness of an employee.” 49 U.S.C. § 20109(a)(4). To\nprevail on such a claim, Holloway needed to show, among\nother things, that his reporting of his workplace injury from\nthe October 2015 incident contributed to Canadian Pacific’s\ndecision to fire him. See Armstrong v. BNSF Ry. Co., 880 F.3d\n377, 381 (7th Cir. 2018) (citing 49 U.S.C. § 20109(d)(2)(A) and\n29 C.F.R. § 1982.104(e)(2)); see also Araujo v. New Jersey Transit\nRail Operations, Inc., 708 F.3d 152, 156–57 (3d Cir. 2013)\n(applying the same statutory standards).\n Holloway argues, as he did in the district court, that “[i]t\nis obvious that the protected activity was a contributing factor\nin the adverse action.” He sees the point as obvious because\nhe was fired only after he came forward and reported his\nworkplace injury. Holloway also contends that Canadian\nPacific’s decision not to fire J.S. for her involvement in the\naccident supports his allegation of retaliation. These\ncontentions fall short on the law and the facts.\n\fNo. 18-2431 5\n\n Our caselaw is clear that a plaintiﬀ alleging retaliation in\nviolation of § 20109(a)(4) cannot point only to the sequence of\nevents—an injury report followed by a later dismissal—to\nshow that the complaint was a contributing factor in the ad-\nverse employment action. See Koziara v. BNSF Ry. Co., 840\nF.3d 873, 877–78 (7th Cir. 2016) (rejecting the district court’s\nconclusion that the plaintiﬀ’s injury report was a contributing\nfactor to the adverse action simply because it “initiated the\nevents that led to his discipline”); see also Armstrong, 880 F.3d\nat 382 (explaining that the phrase “contributing factor” is a\nstandard of causation that does not eliminate the requirement\nfor a plaintiﬀ to present evidence of an improper motive).\n Something more than the mere sequence of events is re-\nquired, and Holloway has failed to provide that something\nmore. At summary judgment he came forward with no evi-\ndence, direct or circumstantial, that his termination reflected\nCanadian Pacific’s retaliation for reporting his injury. He\npointed to nothing showing that anyone within the company\nfaulted or was frustrated with him for reporting the October\n2015 accident. Nor did he identify any evidence suggesting\nanimus toward him—for example, that his supervisor had\nbeen looking for a reason to fire him and used his report of\nthe accident as the reason to let him go.\n The record evidence is altogether diﬀerent. What it shows\nis that, in fewer than two years with Canadian Pacific,\nHolloway repeatedly violated the company’s work and safety\nrules and was eventually fired for accumulating so many\nviolations. That he happened during the same time period to\nbe involved in a workplace accident and to have reported an\ninjury does not—without more—create an inference that\n\f6 No. 18-2431\n\nreporting his injury contributed to Canadian Pacific’s decision\nto terminate him.\n Holloway is right to observe that J.S. was not disciplined\nfor the October 2015 accident. But the observation does not go\nvery far, as J.S.’s disciplinary history paled in comparison to\nHolloway’s record. J.S. had received a reprimand and coun-\nseling on one prior occasion but otherwise had a clean record\nwith Canadian Pacific. Nothing in the Federal Railway Safety\nAct precluded the company from taking stock of Holloway’s\nemployment history, beset as it was with disciplinary prob-\nlems, and proceeding to dismiss him.\n Holloway’s comparison of his circumstances to those of\nJ.S. misfires on another front. He altogether overlooks that he\nand J.S. engaged in the same protected activity—reporting an\ninjury to Canadian Pacific. See 49 U.S.C. § 20109(a)(4). But\neven though J.S. engaged in the same protected activity, she\nwas not disciplined. So Holloway’s comparison of the treat-\nment he and J.S. received from Canadian Pacific only rein-\nforces that the company did not retaliate against him for his\nengaging in protected activity, but rather fired him because of\nhis long record of disciplinary problems.\n We owe a final word to Holloway’s assertion that the dis-\ntrict court impermissibly weighed evidence and made credi-\nbility determinations when granting summary judgment to\nCanadian Pacific. We have reviewed the record and find no\nsupport for this contention. The district court provided a thor-\nough and detailed recounting of the evidence brought forth\nby both parties and in no way strayed from the standards gov-\nerning summary judgment.\n For these reasons, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369518/", "author_raw": "SCUDDER, Circuit Judge"}]}	FLAUM	BARRETT	SCUDDER	1	{"FLAUM": ", Circuit", "BARRETT": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592265/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,738		Douglas Holloway v. Soo Line Railroad Company	2019-02-20	18-2431	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2431\nDOUGLAS HOLLOWAY,\n Plaintiff-Appellant,\n v.\n\nSOO LINE RAILROAD COMPANY,\nd/b/a Canadian Pacific,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:16-cv-09191 — Jorge L. Alonso, Judge.\n ____________________\n\n ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 20, 2019\n ____________________\n\n Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. Douglas Holloway’s year-and-a-\nhalf long employment with Canadian Pacific ended after he\nreceived multiple suspensions for violating safety standards\nand other work rules. The final chapter came when Holloway\nsustained an injury in a vehicle collision while not wearing a\nseatbelt. When combined with Holloway’s prior record of\ninfractions, this new safety-standard violation was enough for\n\f2 No. 18-2431\n\nthe company to terminate Holloway. In his ensuing lawsuit,\nHolloway alleged he was fired not for violating Canadian\nPacific’s rules, but instead for reporting a workplace injury.\nWe agree with the district court that the record evidence does\nnot support his contention and therefore aﬃrm.\n I\n Canadian Pacific hired Douglas Holloway as a conductor\nin July 2014. In short order he found himself the subject of\nseveral disciplinary actions. In November 2014, for example,\nCanadian Pacific advised Holloway that his attendance record\nwas lacking and that he needed to be available to work when\nthe company needed him. By way of another example,\nHolloway received a 10-day suspension in May 2015 for not\nproviding his engineer with important safety information\nwhile working on a railcar. In time a pattern emerged, as\nHolloway received suspensions for violating Canadian\nPacific’s safety and work rules again in August 2015 and\nSeptember 2015.\n The final straw came on October 18, 2015. It was then that\nHolloway and another employee, J.S., were doing a “switch\njob”—railroad lingo for moving railcars as part of building a\ntrain. The work required J.S. and Holloway to use an all-pur-\npose vehicle to move around Canadian Pacific’s Bensenville\nYard. J.S. drove while Holloway rode in the passenger seat,\nbut neither fastened a seatbelt. Holloway also never inspected\nthe vehicle for safety defects, later saying he assumed J.S. had\ndone so. A subsequent inspection revealed that the vehicle\nneeded repairs—for example, zip ties were being used to hold\na makeshift windshield covered with dirt and scratches to the\nvehicle’s frame.\n\fNo. 18-2431 3\n\n At one point during the assembly work, J.S. crashed the\nvehicle into a pole. Both J.S. and Holloway sustained injuries\nthat required medical care at a hospital. The particular treat-\nment Holloway received triggered an obligation under the\nFederal Railway Act for Canadian Pacific to report his injury\nto the Federal Railroad Administration. J.S.’s injury was mi-\nnor and did not require such reporting.\n After the accident, Canadian Pacific notified J.S. and\nHolloway that a formal investigation and hearing would\nfollow. In the months leading to the hearing, however, J.S.\nwas furloughed and therefore did not attend. Holloway\nattended the hearing along with a representative from the\nUnited Transportation Union. The hearing oﬃcer determined\nthat Holloway had violated Canadian Pacific’s seatbelt\nrequirement and a separate rule requiring him to inspect for\nand report safety defects with the company’s vehicles. The\nhearing oﬃcer’s final report canvassed Holloway’s lengthy\ndiscipline history and led to a recommendation of\ntermination. Canadian Pacific accepted the recommendation\nand fired Holloway in December 2015. At no point did the\ncompany discipline J.S. for her role in the accident.\n Holloway unsuccessfully appealed his dismissal through\nthe procedures in the collective bargaining agreement\nbetween his union and Canadian Pacific. After receiving\npermission to sue from the Equal Employment Opportunity\nCommission, he brought several claims against Canadian\nPacific in district court.\n The district court denied Holloway relief on each of his\nclaims. Now on appeal, he challenges only the district court’s\naward of summary judgment to Canadian Pacific on his claim\n\f4 No. 18-2431\n\nfor unlawful retaliation in violation of the Federal Railway\nSafety Act.\n II\n We review the district court’s grant of summary judgment\nin favor of Canadian Pacific de novo. See Rahn v. Board of\nTrustees of N. Ill. Univ., 803 F.3d 285, 287 (7th Cir. 2015).\n The Federal Railway Safety Act prohibits a railroad from\ndischarging or otherwise discriminating against an employee\n“if such discrimination is due, in whole or in part, to the\nemployee’s lawful, good faith act done … to notify, or attempt\nto notify, the railroad carrier or the Secretary of\nTransportation of a work-related personal injury or work-\nrelated illness of an employee.” 49 U.S.C. § 20109(a)(4). To\nprevail on such a claim, Holloway needed to show, among\nother things, that his reporting of his workplace injury from\nthe October 2015 incident contributed to Canadian Pacific’s\ndecision to fire him. See Armstrong v. BNSF Ry. Co., 880 F.3d\n377, 381 (7th Cir. 2018) (citing 49 U.S.C. § 20109(d)(2)(A) and\n29 C.F.R. § 1982.104(e)(2)); see also Araujo v. New Jersey Transit\nRail Operations, Inc., 708 F.3d 152, 156–57 (3d Cir. 2013)\n(applying the same statutory standards).\n Holloway argues, as he did in the district court, that “[i]t\nis obvious that the protected activity was a contributing factor\nin the adverse action.” He sees the point as obvious because\nhe was fired only after he came forward and reported his\nworkplace injury. Holloway also contends that Canadian\nPacific’s decision not to fire J.S. for her involvement in the\naccident supports his allegation of retaliation. These\ncontentions fall short on the law and the facts.\n\fNo. 18-2431 5\n\n Our caselaw is clear that a plaintiﬀ alleging retaliation in\nviolation of § 20109(a)(4) cannot point only to the sequence of\nevents—an injury report followed by a later dismissal—to\nshow that the complaint was a contributing factor in the ad-\nverse employment action. See Koziara v. BNSF Ry. Co., 840\nF.3d 873, 877–78 (7th Cir. 2016) (rejecting the district court’s\nconclusion that the plaintiﬀ’s injury report was a contributing\nfactor to the adverse action simply because it “initiated the\nevents that led to his discipline”); see also Armstrong, 880 F.3d\nat 382 (explaining that the phrase “contributing factor” is a\nstandard of causation that does not eliminate the requirement\nfor a plaintiﬀ to present evidence of an improper motive).\n Something more than the mere sequence of events is re-\nquired, and Holloway has failed to provide that something\nmore. At summary judgment he came forward with no evi-\ndence, direct or circumstantial, that his termination reflected\nCanadian Pacific’s retaliation for reporting his injury. He\npointed to nothing showing that anyone within the company\nfaulted or was frustrated with him for reporting the October\n2015 accident. Nor did he identify any evidence suggesting\nanimus toward him—for example, that his supervisor had\nbeen looking for a reason to fire him and used his report of\nthe accident as the reason to let him go.\n The record evidence is altogether diﬀerent. What it shows\nis that, in fewer than two years with Canadian Pacific,\nHolloway repeatedly violated the company’s work and safety\nrules and was eventually fired for accumulating so many\nviolations. That he happened during the same time period to\nbe involved in a workplace accident and to have reported an\ninjury does not—without more—create an inference that\n\f6 No. 18-2431\n\nreporting his injury contributed to Canadian Pacific’s decision\nto terminate him.\n Holloway is right to observe that J.S. was not disciplined\nfor the October 2015 accident. But the observation does not go\nvery far, as J.S.’s disciplinary history paled in comparison to\nHolloway’s record. J.S. had received a reprimand and coun-\nseling on one prior occasion but otherwise had a clean record\nwith Canadian Pacific. Nothing in the Federal Railway Safety\nAct precluded the company from taking stock of Holloway’s\nemployment history, beset as it was with disciplinary prob-\nlems, and proceeding to dismiss him.\n Holloway’s comparison of his circumstances to those of\nJ.S. misfires on another front. He altogether overlooks that he\nand J.S. engaged in the same protected activity—reporting an\ninjury to Canadian Pacific. See 49 U.S.C. § 20109(a)(4). But\neven though J.S. engaged in the same protected activity, she\nwas not disciplined. So Holloway’s comparison of the treat-\nment he and J.S. received from Canadian Pacific only rein-\nforces that the company did not retaliate against him for his\nengaging in protected activity, but rather fired him because of\nhis long record of disciplinary problems.\n We owe a final word to Holloway’s assertion that the dis-\ntrict court impermissibly weighed evidence and made credi-\nbility determinations when granting summary judgment to\nCanadian Pacific. We have reviewed the record and find no\nsupport for this contention. The district court provided a thor-\nough and detailed recounting of the evidence brought forth\nby both parties and in no way strayed from the standards gov-\nerning summary judgment.\n For these reasons, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369991/", "author_raw": "SCUDDER, Circuit Judge"}]}	FLAUM	BARRETT	SCUDDER	1	{"FLAUM": ", Circuit", "BARRETT": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592738/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,895	Fred GATES v. BOARD OF EDUCATION OF THE CITY OF CHICAGO	Gates v. Bd. of Educ. of Chi.	2019-02-20	No. 17-3143	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Hamilton, Manion, Scudder", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415325/", "author_raw": ""}]}	HAMILTON	MANION	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443895/	Published	0	1	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,513	UNITED STATES of America, Plaintiff-Appellee, v. Derrick W. JOHNSON, Defendant-Appellant.	United States v. Derrick Johnson	2019-02-21	18-2023	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Easterbrook, Kanne", "parties": "", "opinions": [{"author": "Michael Stephen Kanne", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2023\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nDERRICK W. JOHNSON,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 17-CR-72 — William M. Conley, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2018 — FEBRUARY 21, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and KANNE,\nCircuit Judges.\n KANNE, Circuit Judge. Derrick Johnson appeals his convic-\ntion for possession of a ﬁrearm in furtherance of a drug traf-\nﬁcking crime. Police arrested him at a Madison, Wisconsin,\nbar carrying ﬁve hydrocodone pills, two cell phones, gem\npacks containing marijuana residue, a plastic bag of antihista-\nmine, and a loaded pistol. Johnson pled guilty to possession\nof a controlled substance with intent to deliver but went to\n\f2 No. 18-2023\n\ntrial on the ﬁrearm charge. On appeal, Johnson claims the dis-\ntrict court committed reversible error in three ways. First, he\nclaims the jury instructions misstated the law and confused\nthe jury. Second, he contends that the district court should not\nhave admitted the government’s proﬀered expert testimony.\nLastly, Johnson argues the government presented insuﬃcient\nevidence to support his conviction. We aﬃrm.\n I. BACKGROUND\n A Madison, Wisconsin, police officer named Joseph Buc-\ncellato recognized Derrick Johnson outside of a campus bar\non June 17, 2017. Johnson wore a jacket; a wardrobe choice\nthat struck the officer as odd for a warm summer night. He\nsuspected Johnson was armed. After confirming an outstand-\ning warrant for Johnson’s arrest, Buccellato and another of-\nficer confronted and attempted to apprehend him. Johnson\nwrestled free from the pair and made a short-lived escape into\nthe bar where the officers ultimately arrested him. The offic-\ners searched Johnson and discovered a Crown Royal whiskey\nbag containing small plastic bags known as gem packs. Some\ngem packs remained unused, others contained marijuana res-\nidue, and five gem packs each contained a hydrocodone pill.\nThe officers also found two cell phones and another plastic\nbag filled with powdered antihistamine. Data pulled from\none of the cell phones revealed Facebook conversations in\nwhich Johnson appeared to arrange drug deals. Most signifi-\ncantly, the officers discovered a loaded pistol with a bullet in\nits chamber zipped up in Johnson’s jacket pocket.\n A grand jury indicted Johnson with one count of pos-\nsessing hydrocodone with intent to distribute and one count\nof possessing a handgun in furtherance of a drug trafficking\ncrime in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.\n\fNo. 18-2023 3\n\n§ 924(c), respectively. Johnson pled guilty to possessing hy-\ndrocodone with intent to distribute but went to trial on the\nfirearm charge.\n Prior to trial, the government designated Bureau of Alco-\nhol, Tobacco, and Firearms (“ATF”) Special Agent Michael\nAalto as an expert witness on drug distribution and traffick-\ning. The government included Aalto’s curriculum vitae with its\nexpert testimony notice. Special Agent Aalto’s law enforce-\nment career spanned more than twenty years. He spent more\nthan half of his time with the ATF, where he served under-\ncover in the drug trade and worked with informants. The ex-\npert witness notification explained that Aalto would offer his\nopinion on the habits, customs, and practices of drug dealers.\nSpecifically, Aalto would testify about the different items dis-\ncovered in Johnson’s possession during his arrest and their\nrelationship to drug dealing. According to the government,\nthis testimony would help the jury understand how Johnson\nused the pistol “in furtherance of” the drug crime. The gov-\nernment also identified Buccellato as an expert witness.\n Johnson moved in limine to exclude the testimony of both\nAalto and Buccellato as irrelevant. Johnson argued that be-\ncause he pled guilty to possession with intent to distribute,\nthe government no longer needed to prove he dealt drugs. Al-\nternatively, Johnson contended that the district court should\nweigh and exclude Aalto’s and Buccellato’s testimony under\nFederal Rule of Evidence 702.\n The district court held a hearing and, relying on our cases\ndescribing such testimony as helpful and relevant, rejected\nJohnson’s Rule 702 argument. The court also noted that expert\ntestimony about why drug dealers possess guns and how\n\f4 No. 18-2023\n\nthey use them provides helpful information for lay jurors un-\nfamiliar with the clandestine narcotics world and accordingly\nrejected Johnson’s relevance argument. The court explained\nthat testimony concerning the other items Buccellato recov-\nered from Johnson during the arrest could provide context for\nJohnson’s firearm possession.\n At trial, Aalto testified to a variety of factors. Based on the\nFacebook conversation data taken from one of Johnson’s\nphones, Aalto concluded that Johnson made an appointment\nto sell Xanax two and a half hours before his arrest. Aalto ex-\nplained that drug dealers commonly use gem packs to pack-\nage drugs for sale. The government asked Aalto about the re-\nlationship between drugs and guns. He observed that due to\ndrug dealing’s dangerous nature, guns and drugs go hand-in-\nhand and concluded “[w]here there’s guns, there’s drugs, and\nwhere there’s drugs, there’s guns.” On cross-examination by\nJohnson’s counsel, Aalto walked back his broad assertion,\nnoting that drugs and guns go together not always, but\n“[m]ost of the time.”\n As trial closed, the district court considered the parties’\nproposed jury instructions. The government asked the court\nto supplement the pattern jury instruction explaining the “in\nfurtherance of” element with factors identiﬁed in United States\nv. Duran, 407 F.3d 828, 845 (7th Cir. 2005). Conversely, John-\nson requested that the district court borrow a jury instruction\nused in a previous case which included a dictionary deﬁnition\nof the word “facilitate.” Over Johnson’s objection, the district\ncourt ultimately administered a pattern-based jury instruc-\ntion but added both the dictionary deﬁnition of “facilitate”\nand the Duran factors the court deemed relevant to the case.\n\fNo. 18-2023 5\n\nThe court omitted Duran factors related to the gun’s legal sta-\ntus because it previously granted the government’s motion in\nlimine to exclude evidence about whether Johnson legally pos-\nsessed the pistol.\n In the following presentation of the jury instruction, the\nbolded text highlights the added Duran factors. Johnson’s re-\nquested dictionary language deﬁning “facilitate” is italicized:\n As used in the second element of Count 2, a person\n possesses a ﬁrearm in furtherance of a drug traﬃck-\n ing crime if the ﬁrearm furthers, advances, moves\n forward or facilitates the crime. The mere presence\n of a ﬁrearm at the scene of a drug traﬃcking crime\n is not enough to establish that the ﬁrearm was pos-\n sessed in furtherance of the crime. There must be\n some additional connection between the ﬁrearm and\n the crime. In making this determination, you should\n consider all of the evidence, including: the type of\n drug activity that is being conducted; the type,\n value and amount of drugs; the accessibility of the\n ﬁrearm; the type of the ﬁrearm; whether the ﬁrearm\n is loaded; the proximity of the ﬁrearm to drugs or\n drug proﬁts; the time and circumstances under\n which the gun is found; and whether the ﬁrearm makes\n the crime possible, easier to commit, or more likely to suc-\n ceed. While these factors or any other factor you\n deem important may be useful, they are not to be\n applied rigidly or with equal weight. The weight, if\n any, you give these or other factors is up to you. No\n factor or combination of factors is dispositive. In-\n stead, you are to be guided primarily by common\n sense in deciding if “the ﬁrearm furthered, ad-\n vanced, moved forward or facilitated the crime.”\n(R. 72 at 6).\n\f6 No. 18-2023\n\n The jury convicted Johnson. He subsequently challenged\nthe suﬃciency of the evidence under Federal Rule of Criminal\nProcedure 29, which the district court denied. He appealed.\n II. ANALYSIS\n Johnson argues the district court erred in three ways. First,\nhe contends the court administered jury instructions that mis-\nstated the law and confused the jury. Second, he challenges\nthe admission of the government’s expert witness testimony.\nThird, Johnson maintains that insuﬃcient evidence sup-\nported his conviction.\n A. The District Court Administered Adequate Jury Instruc-\n tions\n Johnson argues that the jury instructions misstated the law\nand confused the jury. He objects to the instructions because\nthe district court included the Duran factors in the “in further-\nance of” instruction and placed his proposed dictionary deﬁ-\nnition language among the factors.\n We review whether a jury instruction accurately states the\nlaw de novo. United States v. DiSantis, 565 F.3d 354, 359 (7th Cir.\n2009). District courts can improve pattern jury instruction lan-\nguage or “start from scratch.” United States v. Edwards, 869\nF.3d 490, 500 (7th Cir. 2017). We give the district court discre-\ntion on precise wording “so long as the ﬁnal result, read as a\nwhole, completely and correctly states the law.” DiSantis, 565\nF.3d at 359 (quoting United States v. Gibson, 530 F.3d 606, 609\n(7th Cir. 2008).\n The jury convicted Johnson of possessing a ﬁrearm in fur-\ntherance of a drug crime. 18 U.S.C. § 924(c). The statute pro-\nvides that “[a]ny person who, during and in relation to any\ncrime of violence or drug traﬃcking crime … in furtherance\n\fNo. 18-2023 7\n\nof any such crime, possesses a ﬁrearm, shall … be sentenced\nto a term of imprisonment of not less than 5 years[.]”\n§ 924(c)(1)(A)(i).\n We previously examined the statute’s “in furtherance of”\nlanguage and determined it requires that the weapon “fur-\nther, advance, move forward, promote or facilitate the drug-\ntraﬃcking crime.” Duran, 407 F.3d at 840 (citing United States\nv. Castillo, 406 F.3d 806 (7th Cir. 2005)). The recurring factual\ninquiry in cases where an arrested drug dealer possesses (but\ndoes not brandish) a ﬁrearm centers on the dealer’s purpose\nfor carrying the weapon. In Duran, we recognized the diﬃ-\nculty in distinguishing between lawful carrying for personal\nprotection and carrying to protect a drug stash. Duran, 407\nF.3d at 840.\n To help the juries, we borrowed a list of factors articulated\nby the Fifth Circuit including, “the type of drug activity that\nis being conducted, accessibility of the ﬁrearm, the type of the\nweapon, whether the weapon is stolen, the status of the pos-\nsession (legitimate or illegal), whether the gun is loaded,\nproximity to drugs or drug proﬁts, and the time and circum-\nstances under which the gun is found.” Id. (quoting United\nStates v. Ceballos-Torres, 218 F.3d 409, 414–15 (5th Cir.), modi-\nﬁed on denial of rehearing, 226 F.3d 651 (5th Cir. 2000)). As\nwe noted in Duran, these factors are not exhaustive, nor are\nthey necessary. 407 F.3d at 840. Overall, we emphasize com-\nmon sense as the jury’s guide. Id.\n Here, Johnson raises two main objections to the instruc-\ntion. First, he believes the instruction’s arrangement led the\njury to believe it could discard part of the legal standard. Spe-\nciﬁcally, the district court added the dictionary language de-\n\f8 No. 18-2023\n\nﬁning “facilitate” to the end of the listed Duran factors. Be-\ncause the instruction described the Duran factors as optional,\nJohnson believes the jury could have interpreted the instruc-\ntion to mean that it was optional to ﬁnd that the gun “facili-\ntated” the drug crime. And because “facilitate” is one of the\nwords used to describe “furthered,” the jury could have\nthought that it was optional to ﬁnd that Johnson possessed the\ngun “in furtherance of” his drug dealing. Second, Johnson ar-\ngues that the district court abused its discretion by including\nthe Duran factors in the instruction. Johnson complains that\nthe court only included factors detrimental to his case and ex-\ncluded potentially helpful factors. Moreover, he claims that\neven though the commentary to the pattern instruction rec-\nommends providing jurors with the Duran factors, providing\nthem in this case distracted the jury from its primary task.\n We disagree. The administered jury instruction included\nthe critical Castillo standard twice—at the beginning and end.\nAlthough the district court placed the dictionary language\nprior to a sentence advising the jury to give the Duran factors\nthe weight—if any—it deemed appropriate, the instruction\ndeﬁnitively and properly concluded with Castillo’s standard.\nThe instruction eﬀectively gave the jury its task, listed consid-\nerations to weigh in its discretion, and then iterated the\nproper legal standard. The instruction clearly informed the\njury that it must ultimately determine whether “the ﬁrearm\nfurthered, advanced, moved forward or facilitated the crime.”\nCastillo, 406 F.3d at 821. By bookending the non-patterned lan-\nguage with the Castillo standard, the instruction suﬃciently\ninformed the jury of its task of determining whether he pos-\nsessed the ﬁrearm in furtherance of his drug dealing.\n\fNo. 18-2023 9\n\n We similarly disagree with Johnson’s argument that the\ndistrict court abused its discretion by including the Duran fac-\ntors or prejudiced him by including only a few. We previously\nexplained that not all the Duran factors are equally helpful in\na given situation. United States v. Brown, 724 F.3d 801, 803 (7th\nCir. 2013). Because the instruction clearly articulated the Cas-\ntillo standard, we doubt that listing relevant Duran factors\ncaused the jury signiﬁcant confusion. Further, the instruction\ncautioned the jury to only consider the factors to the extent\nthey proved helpful and suggested that the jury could con-\nsider additional, unlisted factors.\n Although the jury instructions accurately stated the law in\nthis case, we re-emphasize that common sense should serve\nas the jury’s primary guide in these cases. Duran, 407 F.3d at\n840. To that end, we urge district courts drafting jury instruc-\ntions to consider whether “less is more” in each case. While\nthe Duran factors provide helpful considerations, simple and\nsuccinct instructions invite the jury to rely on its own intuition\nand common sense in resolving the cases. Gehring v. Case\nCorp., 43 F.3d 340, 344 (7th Cir. 1994) (“Good instructions use\nsimple words in short, concrete sentences.”); see also Brown,\n724 F.3d at 803 (7th Cir. 2013) (noting that “[i]t can be easier\nto determine ‘furtherance’ by a holistic analysis than by dis-\nsecting the issue into parts.”).\n B. The District Court Did Not Err by Admitting the Govern-\n ment’s Expert Witness Testimony\n Johnson argues that the district court erroneously admit-\nted Special Agent Aalto’s expert testimony. He objects to\nAalto’s testimony on two grounds. First, he argues that the\ndistrict court should have excluded Aalto’s testimony about\nthe relationship between drugs and guns because it failed to\n\f10 No. 18-2023\n\nsatisfy the requirements of Federal Rule of Evidence 702 and\nDaubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Alter-\nnatively, Johnson contends that the court should have ex-\ncluded as irrelevant any portion of Aalto’s testimony not di-\nrectly related to the relationship between drugs and guns un-\nder Federal Rule of Evidence 401.\n 1. The District Court Did Not Abuse Its Discretion by Admit-\n ting Aalto’s Testimony Under Rule 702\n The admission of expert testimony is governed by Federal\nRule of Evidence 702 and Daubert. See C.W. ex rel. Wood v. Tex-\ntron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). Under Rule 702,\nexpert testimony must assist the trier of fact and demonstrate\nsuﬃcient reliability. Id.\n “We employ a two-step standard of review in cases chal-\nlenging a district court’s admission or exclusion of the testi-\nmony of an expert.” Textron, 807 F.3d at 835. We ﬁrst review\nthe district court’s application of Daubert’s framework de novo.\nId. Second, if the district court properly applied Daubert, we\nreview its decision not to exclude expert testimony for an\nabuse of discretion. Id. We aﬀord the district court’s eviden-\ntiary rulings special deference and ﬁnd an abuse of discretion\n“only where no reasonable person could take the view\nadopted by the trial court.” United States v. Causey, 748 F.3d\n310, 316 (7th Cir. 2014) (quotation omitted).\n “The Supreme Court has made clear that in applying Rule\n702, district courts serve a gatekeeping function and must en-\nsure that the expert testimony at issue ‘both rests on a reliable\nfoundation and is relevant to the task at hand.’” United States\nv. Cruz-Velasco, 224 F.3d 654, 660 (7th Cir. 2000) (quoting Daub-\nert, 509 U.S. at 597). In Kumho Tire Co. v. Carmichael, the Court\n\fNo. 18-2023 11\n\nexplained that when testing the reliability of an expert opin-\nion, courts must adjust the Daubert “gatekeeper” factors to ﬁt\nthe facts of the particular case at issue. 526 U.S. 137, 147 (1999).\n “Our court has long recognized that testimony regarding\nthe methods used by drug dealers is helpful to the jury and\ntherefore a proper subject of expert testimony.” United States\nv. Winbush, 580 F.3d 503, 510–11 (7th Cir. 2009); see also United\nStates v. Foster, 939 F.2d 445, 452 (7th Cir. 1991) (“‘The investi-\ngator and the expert witness both serve as a link to the drug\nculture in providing the jury with [an] understanding of the\nintricate patterns and modus operandi’ of those involved in nar-\ncotics traﬃcking.” (alteration in original) (quoting United\nStates v. Gonzalez, 933 F.2d 417, 428–29 (7th Cir. 1991)).\n Johnson argues that the district court improperly applied\nthe Daubert framework to Aalto’s testimony and instead\ndeemed Aalto’s testimony per se reliable and admissible. Spe-\nciﬁcally, Johnson objects to the district court’s characteriza-\ntion of the case law concerning law enforcement expert testi-\nmony about drug dealers’ modus operandi. He claims that the\ndistrict court failed to seriously consider whether and how\nAalto’s experience and training supported his opinion con-\ncerning relationship between drugs and guns.\n We disagree. Johnson’s objections to the admission of\nAalto’s testimony bear a striking resemblance to those raised\nin United States v. Tingle, 880 F.3d 851, 854 (7th Cir.), cert. de-\nnied, 138 S. Ct. 1567 (2018). In that case, the defendant faced\ncharges for possessing and distributing methamphetamine\nand possessing a ﬁrearm in furtherance of a drug traﬃcking\ncrime. Id. at 852. He argued that the district court errantly al-\nlowed the government’s witness to testify as an expert, “with-\nout properly examining his credentials or considering\n\f12 No. 18-2023\n\nwhether expert testimony would assist the jury.” Id. at 854.\nWe explained that the district court need not conduct a Daub-\nert hearing, “‘where the reliability of an expert’s methods is\nproperly taken for granted.’” Id. (quoting Kumho Tire, 526 U.S.\nat 152). And we relied on the witness’s expertise—with 16\nyears of experience with the DEA and 14 years of experience\nwith the Missouri State Highway Patrol—to determine that he\nwas clearly “qualiﬁed to testify as an expert in his ﬁeld and\nthat his testimony could be helpful to the jury.” Tingle, 880\nF.3d at 854. We also noted expert’s formal law enforcement\ntraining and heavy involvement in drug cases. Id. Even before\nTingle, this court explained that such testimony is reliable\nwhen based both on signiﬁcant law enforcement experience\nand an application of the case’s facts. United States v. Allen, 269\nF.3d 842, 846 (7th Cir. 2001).\n Here the district court similarly declined to conduct a\nDaubert hearing concerning Aalto’s expert testimony on the\nrelationship between drugs and guns in the narcotics under-\nworld. However, the record reﬂects that the court considered\nAalto’s signiﬁcant qualiﬁcations and experience, and\nproperly applied the Daubert framework.\n As to Johnson’s objections to Aalto’s methodologies, the\ndistrict court correctly explained that the premise of admit-\nting testimony like Aalto’s relies on the notion that jurors “are\nnot well versed in the behavior of drug dealers.” Winbush, 580\nF.3d at 511 (quoting Foster, 939 F.2d at 452). The court noted\nthat Aalto could relay to the jury behaviors he personally wit-\nnessed among drug dealers. These experiences could help ex-\nplain how and why drug dealers possess ﬁrearms. In other\nwords, Aalto’s shared experiences gave the jurors context for\nan unfamiliar subculture and provided them with a better\n\fNo. 18-2023 13\n\nfoundational understanding than they might glean from tele-\nvision or popular culture. Foster, 939 F.2d at 452. This testi-\nmony was relevant to Johnson’s case because it helped the\njury better evaluate whether his ﬁrearm possession was con-\nsistent with and typical to the drug trade.\n 2. The District Court’s Properly Admitted Aalto’s Other Testi-\nmony\n Johnson additionally contends that the district court erred\nbecause it admitted Aalto’s testimony about the other items\nJohnson possessed during the arrest and Johnson’s Facebook\nmessages. Because the government only needed to prove the\nﬁrearm charge, Johnson believes the district court should\nhave excluded evidence unrelated to the ﬁrearm as irrelevant\nunder Federal Rule of Evidence 401.\n “The standard of review for the admission of evidence\nwhere relevance is at issue is … abuse of discretion.” United\nStates v. Gill, 58 F.3d 334, 337 (7th Cir. 1995). District courts\nproperly admit evidence as relevant if “it has any tendency to\nmake a fact more or less probable than it would be without\nthe evidence.” Fed. R. Evid. 401(a).\n Johnson objects to Aalto’s testimony about how his activi-\nties resembled those of the typical drug dealer. This includes\nAalto’s testimony on how drug dealers often carry multiple\ncell phones, how they prepackage drugs, how Johnson’s Fa-\ncebook messages showed him setting up a drug deal using\nindustry slang, and how much money drug dealers carry on\nthem at a given time.\n We cannot agree with Johnson that the district court\nabused its discretion by admitting this testimony. Aalto’s tes-\n\f14 No. 18-2023\n\ntimony provided the jury with relevant context clues concern-\ning Johnson’s ﬁrearm. While Johnson could have been carry-\ning a ﬁrearm for a lawful purpose—as many citizens do—the\nother items in Johnson’s possession and his Facebook mes-\nsages undoubtedly changed the situation’s complexion.\nAalto’s testimony showed that Johnson carried many regular\ntools of a drug dealer and the ﬁrearm’s presence among them\nwas not merely incidental.\n C. Suﬃcient Evidence Supported Johnson’s Conviction\n Lastly, Johnson argues that the government presented in-\nsuﬃcient evidence to support his conviction. Speciﬁcally, he\nbelieves that the government failed to provide evidence link-\ning his ﬁrearm to drug dealing. He urges that upholding the\ndistrict court’s ruling eﬀectively sets a standard that simply\npossessing a gun while simultaneously possessing drugs suf-\nﬁciently supports a conviction under 18 U.S.C. § 924(c).\n “We review suﬃciency of evidence challenges in the light\nmost favorable to the prosecution and will only reverse if we\ndetermine that no reasonable ﬁnder of fact could ﬁnd the de-\nfendant guilty beyond a reasonable doubt.” United States v.\nEller, 670 F.3d 762, 765 (7th Cir. 2012). Our role is “limited to\nensuring that a valid legal theory supports the conviction and\nthat there is some evidence from which a rational jury could\nﬁnd in favor of that legal theory.” United States v. Amaya, 828\nF.3d 518, 525 (7th Cir. 2016) (quoting Duran, 407 F.3d at 842).\n We previously explained that, “the mere presence of a ﬁre-\narm in a home or location where drugs are sold is not itself\nsuﬃcient to prove the ‘in furtherance of’ prong of the statute\nand that there must be some nexus or connection between the\nﬁrearm and the drug-selling operation.” Eller, 670 F.3d at 765.\n\fNo. 18-2023 15\n\nAlthough we continue to caution that juries must ﬁnd reason-\nable connections (beyond mere proximity) linking the ﬁrearm\nand the drug operation, we also iterate that a “fact ﬁnder is\ncertainly entitled to come to the common-sense conclusion\nthat when someone has both drugs and a ﬁrearm on their per-\nson, the gun is present to further drug traﬃcking.” Castillo,\n406 F.3d at 815 (quoting United States v. Lomax, 293 F.3d 701,\n706 (4th Cir. 2002)).\n We disagree with Johnson’s claim that the government\npresented insuﬃcient evidence to support his conviction.\nJohnson’s Facebook messages indicate that he conducted a\ndrug deal earlier the same evening. When Oﬃcer Buccellato\nmade the arrest, Johnson’s pockets contained controlled sub-\nstances that he packaged individually for sale. Johnson also\ncarried other drug-dealing accoutrements. The loaded pistol\nhad a bullet in its chamber. A reasonable fact ﬁnder could de-\ntermine that Johnson carried a pistol to protect himself and\nhis drugs on the night he was arrested. Altogether, we believe\nsuﬃcient evidence supported the jury’s verdict ﬁnding John-\nson guilty beyond a reasonable doubt.\n III. CONCLUSION\n The district court administered jury instructions that cor-\nrectly stated the law and suﬃciently charged the jury with its\ntask of determining whether Johnson possessed his ﬁrearm in\nfurtherance of a drug traﬃcking crime. The district court per-\nmissibly admitted Special Agent Aalto’s testimony, which\nAalto based on signiﬁcant law enforcement training and drug\nenforcement experience. Lastly, the government presented\nsuﬃcient evidence to support Johnson’s conviction.\nAFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369766/", "author_raw": "Michael Stephen Kanne"}]}	WOOD	EASTERBROOK	KANNE	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592513/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,651	UNITED STATES of America, Plaintiff-Appellee, v. Nikolay TANTCHEV and Batmagnai Chogsom, Defendants-Appellants.	United States v. Nikolay Tantchev	2019-02-21	18-1200 & 18-1263	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Manion, Rovner", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 18-1200 & 18-1263\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nNIKOLAY TANTCHEV and\nBATMAGNAI CHOGSOM,\n Defendants-Appellants.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-cr-174 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED NOVEMBER 1, 2018 — DECIDED FEBRUARY 21, 2019\n ____________________\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Cir-\ncuit Judges.\n MANION, Circuit Judge. After a six-day trial involving\ntwenty-nine witnesses, a federal jury convicted Nikolay\nTantchev of exporting and attempting to export stolen cars,\nsubmitting false documents to customs officials, and structur-\ning financial transactions to avoid federal reporting require-\nments. That same jury acquitted Tantchev’s co-defendant,\n\f2 Nos. 18-1200 & 18-1263\n\nBatmagnai Chogsom, of charges related to the stolen cars and\nfalse documents, but it convicted Chogsom of making a false\nstatement to an IRS agent. The district court sentenced\nTantchev to 40 months’ imprisonment and Chogsom to 3\nyears’ probation.\n Both defendants appeal their convictions. Tantchev al-\nleges several errors by the district court at trial, and Chogsom\nchallenges the sufficiency of the evidence against him. We af-\nfirm the convictions.\n I.\n Tantchev, a native of Bulgaria, owned a trucking business\nthat operated out of a warehouse in Chicago. Chogsom, a\nMongolian immigrant, worked for Tantchev.\n In 2008, Tantchev began shipping containers of goods to\nBulgaria using a company called Atlantic Express. Seeing an\nopportunity, Tantchev started a small side-business arrang-\ning shipping containers from Atlantic Express for others.\nTantchev would order containers from Atlantic Express at a\ndiscount and charge a premium for acting as a middle man.\nThough he had the containers delivered to his Chicago ware-\nhouse, this was a separate operation from his normal trucking\nbusiness. Through Chogsom, members of Chicago’s Mongo-\nlian community began coming to Tantchev to set up ship-\nments to Mongolia. These shipments often included vehicles.\n According to Tantchev, his involvement with these inter-\nnational shipments was minimal. A customer looking to ship\nsomething would approach Tantchev or Chogsom. Tantchev\nwould then order a shipping container from Atlantic Express,\nwhich would drop it off at Tantchev’s warehouse. The cus-\ntomer would come to the warehouse and load the container\n\fNos. 18-1200 & 18-1263 3\n\nhimself, and the container would be sealed. Atlantic Express\nwould then pick up the loaded container from the warehouse.\nTantchev would fill out the appropriate papers based on what\nhis customers told him and send the papers and any other\ndocuments to Atlantic Express to forward to United States\nCustoms and Border Protection (CBP).\n In the early part of 2011, CBP discovered three of\nTantchev’s shipments to Mongolia contained stolen cars.1 Ad-\nditionally, the documentation Tantchev had submitted did\nnot accurately reflect the contents of the containers. One con-\ntainer was supposed to hold a Honda, but instead contained\na stolen BMW. Two others were declared as containing min-\ning machinery, but they actually contained a stolen Mercedes\nand two stolen Lexuses.\n Also in early 2011, Tantchev began making large deposits\ninto seven bank accounts at Fifth Third Bank and Chase Bank.\nTwo of the accounts were in Tantchev’s name, one belonged\nto his father, and the other four were in the names of Kosa\nBonev, Otgonbayar Jigmidsambuu, Jianmei Li, and Yu Li, re-\nspectively. No single deposit was ever over $10,000, the max-\nimum amount that does not trigger a federal reporting re-\nquirement. Despite no single deposit ever breaching that\n$10,000 ceiling—which Tantchev knew to be the reporting\nthreshold—Tantchev managed to deposit $574,965 into those\naccounts in less than two months, from March 14 to May 4,\n2011. Then, despite the fact that some of the account holders\n\n 1The parties do not dispute that the cars were stolen. All four cars\ncharged in the indictment were subject to liens. When authorities re-\nported to the creditors that the cars had been discovered on shipping\ncontainers bound for Mongolia, the creditors reported them stolen and\nrecovered them.\n\f4 Nos. 18-1200 & 18-1263\n\nwere not even in the United States at the time, from March 16\nto May 5, 2011, wire transfers were sent from the accounts of\nBonev, Jigmidsambuu, Jianmei Li, and Yu Li in the total\namount of $552,090 to twenty-two different accounts located\nin Sofia, Bulgaria.2 This activity prompted Fifth Third Bank to\nreport Tantchev for suspected criminal activity.\n The IRS began an investigation after receiving the report\nfrom Fifth Third Bank. As part of that investigation, Agent Ja-\nson Gibson set out to find Jianmei Li, the listed owner of one\nof the Fifth Third bank accounts. Through the Illinois Secre-\ntary of State, Agent Gibson acquired the information and a\nphoto from an Illinois identification card in that name. After\nthe address on the ID proved to be a bust, he and another\nagent went to the address connected with the bank account.\nAt that address, he spoke with Gerelt Dashdorj, the nephew\nof defendant Chogsom. After talking with Dashdorj and\nshowing him the picture from the ID, Agent Gibson believed\nJianmei Li was Burmaa Chogsom, defendant Chogsom’s sis-\nter.\n Agent Gibson then went to interview defendant Chogsom.\nHe showed Chogsom the photo from the Illinois ID and asked\n\n 2 From whom all this money came and whether they are trying to get\nit back are among the hollow spots in this case—questions the facts raise\nin questioning minds but the parties do not litigate or answer. The gov-\nernment presented evidence at trial suggesting Tantchev received\n$750,000 in wire transfers from Mongolia (including several transfers la-\nbeled “for car”), but it did not have direct evidence that was the source\nof the full $574,965. Neither is there any discussion in the briefs about\nwhether these Mongolian buyers were unwittingly purchasing stolen\ncars or were themselves part of the criminal scheme. While these ques-\ntions are ultimately immaterial because the facts we have are enough to\nresolve this appeal, there is doubtless more to the story.\n\fNos. 18-1200 & 18-1263 5\n\nhim if he recognized the woman. Chogsom replied it was\n“Jianmei Li,” a woman with whom he used to work. Agent\nGibson asked Chogsom if he had a sister named Burmaa.\nChogsom answered he did, and that she was in Mongolia.\nAgent Gibson never asked if the woman in the photo was\nChogsom’s sister Burmaa.\n As it turns out, the woman in the photo was indeed\nBurmaa Chogsom. She had acquired the Illinois ID in the\nname of Jianmei Li using a fraudulent Chinese passport and\na Social Security number originally issued to a worker in Sai-\npan. She had returned to Mongolia in 2010.\n A federal grand jury issued an indictment against\nTantchev and Chogsom on March 16, 2016. The indictment\ncharged Tantchev with three counts of exporting and at-\ntempting to export stolen vehicles, two counts of submitting\nfalse writings to CBP, and one count of structuring deposits\nto avoid federal reporting requirements. The indictment\ncharged Chogsom with two counts relating to the export of\nstolen vehicles, one count of submitting false writings, and\none count of lying to an IRS agent based on his identifying the\nwoman in the photo as Jianmei Li rather than as Burmaa\nChogsom.\n The case proceeded to a jury trial. The jury heard testi-\nmony from twenty-seven witnesses for the government and\nfrom both defendants. The jury convicted Tantchev of all\ncharges leveled against him. It convicted Chogsom of lying to\nthe IRS agents and acquitted him of the remaining charges.\nBoth defendants made post-trial motions for judgment of ac-\nquittal, and Tantchev moved for a new trial. The district court\ndenied all three motions. The defendants appeal.\n\f6 Nos. 18-1200 & 18-1263\n\n II.\n Tantchev appeals the denial of his motion for a new trial,\nalleging multiple errors. Chogsom appeals the denial of his\nmotion for judgment of acquittal. As these two defendants\npresent discrete issues, we will address them separately.\n A.\n We begin with Chogsom’s appeal of the denial of his mo-\ntion for judgment of acquittal. “We review a district court’s\ndenial of a motion for judgment of acquittal de novo in the light\nmost favorable to the prosecution.” United States v. Giovenco,\n773 F.3d 866, 869 (7th Cir. 2014). We will affirm “[i]f any ra-\ntional trier of fact could have found the essential elements of\nthe crime beyond a reasonable doubt.” Id. It is the defendant’s\ntask to convince us of the insufficiency of the evidence, a bur-\nden we have called “heavy, indeed, nearly insurmountable.”\nUnited States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010).\n The indictment charged Chogsom with violating 18 U.S.C.\n§ 1001(a)(2), which makes it a crime to “knowingly and will-\nfully [make] a materially false statement in connection with a\nmatter within the jurisdiction of a federal agency.” United\nStates v. Rahman, 805 F.3d 822, 836 (7th Cir. 2015). The indict-\nment read: “[I]n response to the agents’ question as to\nwhether CHOGSOM recognized the woman in the photo they\ndisplayed, CHOGSOM responded that the person depicted in\nthe photo was ‘Jianmei Li’… .”3\n\n 3 The jury instructions described the charge as follows: “Chogsom is\ncharged … with knowingly and willfully making a false statement when\nhe was interviewed by agents of the [IRS] … about whether he recog-\nnized and knew the name of a woman depicted in a photo the agents dis-\nplayed to him… .”\n\fNos. 18-1200 & 18-1263 7\n\n Chogsom admits to identifying the woman as Jianmei Li.\nHe admits he knew the woman in the photo was his sister\nBurmaa. He even admits he gave the name “Jianmei Li” be-\ncause he wanted to protect his sister from immigration prob-\nlems. Nevertheless, Chogsom argues the jury should not have\nconvicted him because his answer was not literally false.\nChogsom maintains his sister was using the name Jianmei Li\nin the United States. It was her American alias, like a “street\nname.” Because Burmaa was using the name Jianmei Li in the\nUnited States, Chogsom maintains his answer that the woman\nin the photo was Jianmei Li was literally true, and thus he did\nnot “make a false statement” in violation of the statute.\n A statement that is literally true cannot support a convic-\ntion under § 1001(a)(2), “even if a defendant gives a mislead-\ning or nonresponsive answer.” Rahman, 805 F.3d at 838. For\nexample, in Bronston v. United States, 409 U.S. 352 (1973),4 the\ngovernment charged Samuel Bronston with committing per-\njury at a bankruptcy hearing. An attorney for a creditor asked\nBronston, the president of the bankrupt company, if Bronston\nhad ever had an account at a Swiss bank. Bronston answered,\n“The company had an account there for about six months, in\nZurich.” He did not mention his former personal account at\nthe International Credit Bank in Geneva. However, it was un-\ndisputed that his statement concerning the company’s ac-\ncount was true. Id. at 353–54.\n\n\n 4 Bronston and United States v. Gorman, 613 F.3d 711 (7th Cir. 2010),\nwhich we discuss below, both address prosecutions under federal per-\njury statutes, not § 1001(a). But we have applied the reasoning of those\ncases in the § 1001 context. Rahman, 805 F.3d at 838 (citing both Gorman\nand Bronston in addressing the appeal of a conviction under 18 U.S.C. §\n1001).\n\f8 Nos. 18-1200 & 18-1263\n\n And that made all the difference to the Supreme Court,\nwhich overturned Bronston’s conviction under the perjury\nstatute. Id. at 362. Though his answer gave “an implication …\nthat there was never a personal bank account … [t]he [per-\njury] statute does not make it a criminal act for a witness to\nwillfully state any material matter that implies any material\nmatter that he does not believe to be true.” Id. at 357–58. The\nCourt stated, “The burden is on the questioner to pin the wit-\nness down to the specific object of the questioner’s inquiry.”\nId. at 360. If the questioner was not satisfied with Bronston’s\nnon-responsive answer, he should have pressed the issue\nwith his questions. Id. at 362.\n So sometimes, by cleverness and quick thinking, a defend-\nant can avoid directly answering a tough question without ex-\nposing himself to conviction for doing so. But sometimes not.\nIn United States v. Gorman, 613 F.3d 711 (7th Cir. 2010),\nJamarkus Gorman was called to testify before a grand jury.\nOne of the grand jurors asked him, “Mr. Gorman, did you\nhave a Bentley in your garage at [your condominium com-\nplex]?” Gorman replied, “No.” Only, there had been a Bentley\nin the garage. The vehicle belonged to Gorman’s cousin, but\nGorman had given a condominium employee the impression\nit belonged to him and eventually orchestrated its removal\nfrom the garage so he could steal its contents. Gorman was\ncharged with and convicted of perjury based on his answer to\nthe grand jury. Id. at 714–17.\n Appealing his perjury conviction, Gorman “argue[d] he\ncould not have perjured himself because he did not ‘have’ a\nBentley”; it was his cousin’s. Gorman argued “have” requires\nownership, not just possession. Id. at 715–16\n\fNos. 18-1200 & 18-1263 9\n\n We acknowledged that Gorman’s argument, “[w]hen\nstretched to its logical limit,” had “some merit.” Id. at 716. Af-\nter all, “have” has many meanings. Id. (citing Webster’s Third\nNew International Dictionary 1039 (Philip Babcock Gove ed., 3d\ned. 1986)). “But what [Gorman] ignore[d] is that our prece-\ndent dictates that even when a question or answer is ambigu-\nous, a conviction may still be upheld if a jury has been called\nupon ‘to determine that the question as the defendant under-\nstood it was falsely answered… .’” Id. (last alteration in origi-\nnal) (quoting United States v. Scop, 940 F.2d 1004, 1012 (7th Cir.\n1991)). We concluded the jury at Gorman’s perjury trial was\nwell within its rights to find Gorman understood the grand\njuror’s question as inquiring about possession, rather than\nownership, so his answer to the question as asked was know-\ningly false. Id.\n The instant case is much more similar to Gorman than\nBronston. Here, the IRS agents asked Chogsom to identify the\nwoman in the photo from the Illinois ID. He knew it was his\nsister Burmaa, but he told them “Jianmei Li.”\n Chogsom, like Gorman, argues he gave an acceptable an-\nswer to an ambiguous question. And, as in Gorman, that argu-\nment has some validity. “Who is this?” or “Do you know who\nthis is?” are undoubtedly ambiguous questions. And Jianmei\nLi was certainly an identity for the woman named Burmaa\nChogsom—the government’s own evidence shows she had\nan ID with “Jianmei Li” on it. Nevertheless, the jury was enti-\ntled to resolve that ambiguity against Chogsom and conclude\nhe understood the IRS agents wanted to know Burmaa’s “ac-\ntual” name, not the alias she acquired with a fake Chinese\npassport. Understood that way, Chogsom’s decision to give\nher alias was not just misleading, as was the case in Bronston,\n\f10 Nos. 18-1200 & 18-1263\n\nbut false, as in Gorman. Accordingly, we cannot say it was un-\nreasonable for the jury to conclude Chogsom gave a false an-\nswer to the IRS agents’ ambiguous question.\n B.\n We turn now to Tantchev, who alleges four errors he be-\nlieves entitle him to a new trial. We take them in turn, noting\nthat we will reverse the district court’s decision to deny his\nmotion for a new trial only if we find an abuse of discretion.\nUnited States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012).\n 1.\n Tantchev first contends the district court should not have\ngiven a deliberate avoidance or “ostrich” instruction. Before\ngetting into the analysis, some additional background is help-\nful. The government charged Tantchev with exporting and at-\ntempting to export stolen vehicles and submitting false writ-\nten statements to CBP. Both crimes require that the defendant\nacted with knowledge. See 18 U.S.C. § 553(a) (“Whoever\nknowingly imports, exports or attempts to import or export—\n(1) any motor vehicle…knowing the same to have been sto-\nlen… .”); 18 U.S.C. § 1001(a) (“[W]hoever … knowingly and\nwillfully…(3) makes or uses any false writing or document\nknowing the same to contain any materially false, fictitious,\nor fraudulent statement or entry … .”). In defense, Tantchev\ncontested only the knowledge element of the offenses. He\nmaintained he did not know he was exporting stolen cars and\nsubmitting false information to CBP.\n The government requested the court give an ostrich in-\nstruction, which is meant “to inform the jury that a person\nmay not escape criminal liability by pleading ignorance if he\nknows or strongly suspects he is involved in criminal dealings\n\fNos. 18-1200 & 18-1263 11\n\nbut deliberately avoids learning more exact information\nabout the nature or extent of those dealings.” United States v.\nGreen, 648 F.3d 569, 582 (7th Cir. 2011) (internal quotation\nmarks omitted) (quoting United States v. Carani, 492 F.3d 867,\n873 (7th Cir. 2007)). Tantchev opposed the instruction, argu-\ning the government had not presented sufficient evidence of\ndeliberate avoidance to justify it. The district court agreed\nwith the government and gave the instruction.\n In its order addressing Tantchev’s post-trial motion for\nnew trial, the district court stated its conclusion that Tantchev\nhad “cut off his normal curiosity” by never looking into the\ncontainers shipped from his warehouse. Specifically,\n“Tantchev deliberately avoided exhibiting normal curiosity\nand safety and liability-related caution as to the contents of\nthe shipping containers in his truck yard, especially for some-\none with years of experience in the transportation industry.”\nIn this appeal, Tantchev continues to argue the government\ndid not present sufficient evidence to support the instruction.\n “We review a district court’s decision to give an ostrich\ninstruction for abuse of discretion, and in doing so we view\nthe evidence in the light most favorable to the government.”\nUnited States v. Pierotti, 777 F.3d 917, 920 (7th Cir. 2015). “An\nostrich instruction is appropriate where (1) a defendant\nclaims to lack guilty knowledge … and (2) the government\npresents evidence from which a jury could conclude that the\ndefendant deliberately avoided the truth.” United States v.\nGarcia, 580 F.3d 528, 537 (7th Cir. 2009). Evidence of deliberate\navoidance “can be placed into two general categories: evi-\ndence of ‘overt physical acts,’ and evidence of ‘purely psycho-\nlogical avoidance, a cutting off of one’s normal curiosity by\nan effort of will.’” United States v. Carrillo, 435 F.3d 767, 780\n\f12 Nos. 18-1200 & 18-1263\n\n(7th Cir. 2006) (quoting United States v. Craig, 178 F.3d 891, 896\n(7th Cir. 1999)).\n The district court concluded Tantchev “cut off” his curios-\nity by not looking in the containers, alluding to the language\nof psychological avoidance. We have found psychological\navoidance where a defendant was faced with proverbial “red\nflags” but did not investigate. See United States v. Pabey, 664\nF.3d 1084, 1093 (7th Cir. 2011); United States v. Leahy, 464 F.3d\n773, 796 (7th Cir. 2006) (“[F]ailure to ask questions that would\ncertainly arise from the circumstances … is evidence that\ncould lead a jury to determine [the defendant] deliberately\navoided learning about the [ ] scam.” (alterations in original)\n(quoting Craig, 178 F.3d at 897–98)). However, we must re-\nmember the instruction is aimed at defendants acting like fa-\nbled ostriches who bury their heads in the sand. We do not, if\nwe may add to the metaphorical menagerie, require every de-\nfendant to act like Curious George. Accordingly, courts must\nbe careful, lest we obliterate the already thin line between\navoidance, which is criminal, and indifference, which “cannot\nbe punished.” See Leahy, 464 F.3d at 796. We must keep in\nmind that “evidence merely supporting a finding of negli-\ngence—that a reasonable person would have been strongly\nsuspicious, or that a defendant should have been aware of\ncriminal knowledge—does not support an inference that a\nparticular defendant was deliberately ignorant.” Carrillo, 435\nF.3d at 782. The necessary willful blindness must surpass\nrecklessness as well. Global-Tech Appliances, Inc. v. SEB S.A.,\n563 U.S. 754, 769 (2011).\n Here, the evidence is very close. Tantchev argues he was\nnever present for the loading of the containers to Mongolia\n\fNos. 18-1200 & 18-1263 13\n\nand he filled out the CBP forms with information his custom-\ners provided. He testified he did not want to look in the con-\ntainers because he did not want liability for damaged goods.\nHe believed if he did not open the containers, any liability for\ndamages would fall on the customers who loaded them. But\nhe testified that he was very safety conscious in his trucking\nbusiness and took great precautions to ensure his shipments\nwere safe. He testified this was because the liability in his\ntrucking business would fall on him, not on his customers.\n The government argues it strains credulity to believe that\na man who owns his own transportation company would al-\nlow complete strangers to load shipping containers to be sent,\nin his name, to a foreign land without checking and making\nsure everything is safely stowed. Tantchev asserts that argu-\nment necessarily leads to the conclusion he had actual\nknowledge—it assumes he looked in the containers and actu-\nally knew the cars were stolen and the manifests were inaccu-\nrate. If that were true, the district court would have erred by\ngiving the ostrich instruction because evidence pointing\nsolely to direct knowledge of criminal activity does not sup-\nport the instruction. See United States v. Tanner, 628 F.3d 890,\n905 (7th Cir. 2010); United States v. Giovannetti, 919 F.2d 1223,\n1228 (7th Cir. 1990) (“[W]hen the facts require the jury to\nmake a ‘binary choice’ between ‘actual knowledge’ and ‘com-\nplete innocence,’ the ostrich instruction should not be\ngiven.”). The government certainly pushed an “actual\nknowledge” narrative, but the evidence does not present only\na “binary choice” between actual knowledge or no\nknowledge. Instead, it can support a finding of both actual\nknowledge and deliberate avoidance. See United States v. Car-\nrillo, 269 F.3d 761, 769 (7th Cir. 2001).\n\f14 Nos. 18-1200 & 18-1263\n\n For instance, the jury could have found Tantchev looked\nin the containers and saw the contents did not match the in-\nformation on the forms he would send to Atlantic Express for\nCBP. That would amount to actual knowledge the forms con-\ntained false information. But the jury could consider that\nknowledge as a “red flag” sufficient to raise questions in\nTantchev’s mind that everything was not above-board. It was\nthen Tantchev’s deliberate avoidance that led to his not hav-\ning actual knowledge the cars were stolen.\n Alternatively, the jury could have believed Tantchev’s tes-\ntimony that he never looked in the containers or verified the\ninformation provided by his customers, but concluded he\nadopted that indifferent attitude out of a desire to avoid con-\nfirming that he was part of a criminal scheme. After all, he\ntestified that he was safety-conscious in his trucking business.\nThe jury was entitled to conclude Tantchev purposely did not\nsubject these containers to the scrutiny he exercised in the\nother part of his business and draw a negative inference from\nthat change in behavior.\n These are not the strongest examples of when an ostrich\ninstruction is appropriate, but we are reviewing the court’s\ndecision to give the instruction for an abuse of discretion, tak-\ning all inferences in the light most favorable to the govern-\nment. In a close case like this one, that standard is dispositive.\nSee United States v. Ramirez, 574 F.3d 869, 881 (7th Cir. 2009)\n(“[I]n cases such as this, we should defer to the district court’s\nexercise of discretion to give the ostrich instruction.”). While\na different court may not have given the ostrich instruction\nunder these circumstances, the district court in this case did\nnot abuse its discretion in doing so.\n\fNos. 18-1200 & 18-1263 15\n\n 2.\n Tantchev’s second allegation of error also attacks a\nknowledge instruction. The district court instructed the jury:\n“If you find that the defendant was in possession of property\nthat recently had been stolen, you may infer that he knew it\nwas stolen.” The instruction tracked our suggested pattern.\nSee Seventh Circuit Pattern Criminal Jury Instruction 4.14.\nCourts have given this instruction, or one like it, “[f]or centu-\nries.” See Barnes v. United States, 412 U.S. 837, 843–44 (1973).\n Tantchev argues the evidence did not support this instruc-\ntion. He maintains he had a legitimate reason to possess the\ncars: he was shipping them for customers. He also notes these\ncars were not “stolen” in the usual sense; that is, they were\nnot hot-wired from a parking deck in the Loop or carjacked.\nBut Tantchev does not dispute the cars at issue in this case\nwere all nevertheless “stolen.” See generally United States v.\nTurley, 352 U.S. 407, 417 (1957) (“‘Stolen’ as used in 18 U.S.C.\n§ 2312 includes all felonious takings of motor vehicles with\nintent to deprive the owner of the rights and benefits of own-\nership, regardless of whether or not the theft constitutes com-\nmon-law larceny.”). And arguments about why Tantchev\npossessed them or when they were stolen are questions for\nthe jury. See United States v. Riso, 405 F.2d 134, 138 (7th Cir.\n1968) (“[W]hether possession is sufficiently recent … is a\nquestion of fact solely for the jury.”).\n Tantchev was in possession of stolen property. It was up\nto the jury to decide whether the surrounding circumstances\nsupported the inference of knowledge. It was not reversible\nerror to give the instruction.\n\f16 Nos. 18-1200 & 18-1263\n\n 3.\n Tantchev’s third allegation of error concerns the district\ncourt’s decision to allow the government to pursue a line of\nquestioning during his cross-examination. We review such\nevidentiary decisions “for abuse of discretion.” United States\nv. Boswell, 772 F.3d 469, 475 (7th Cir. 2014).\n During Tantchev’s direct examination, he and his counsel\nhad the following exchange:\n Q. And other than the three [containers\n named in the indictment], were there any\n problems with any of the rest of your con-\n tainers—\n A. No problem.\n Q. —that were inspected?\n A. No problem.\n On cross-examination the next day, the government\nsought to introduce evidence there were indeed other con-\ntainers that “had problems,” specifically that there were two\nother shipments that also contained stolen cars.5\n Q. … And you told us yesterday, sir,\n that besides these three shipments, there\n were never any other problems, right?\n A. Yes, sir.\n Q. Well, that’s not true is it?\n At this point, defense counsel objected, arguing that was\nnot an accurate characterization of Tantchev’s testimony from\n\n 5 The government did not charge these shipments in the indictment.\n\fNos. 18-1200 & 18-1263 17\n\ndirect. The court overruled the objection, and the questioning\ncontinued:\n Q. In fact, at exactly the same time\n these shipments were seized, there were\n two other [sic] seized also loaded up with\n stolen cars --\n MR. BRINDLEY [Defense counsel]:\n Objection, your Honor.\n BY MR. HOGAN [Prosecutor]:\n Q. -- also from your --\n MR. BRINDLEY: Objection.\n BY MR. HOGAN:\n Q. -- also from your yard?\n THE COURT: Wait. There is an ob-\n jection.\n There then followed a sidebar, after which the court al-\nlowed the government to proceed with the questioning, but\nin a limited manner. The court allowed the government to\ncontradict Tantchev’s testimony but prohibited it from get-\nting into the substance of the “problems” with the containers.\nNonetheless, as cross-examination continued, the prosecutor\nmentioned “stolen cars” two more times. Both times, defense\ncounsel objected and the court intervened before Tantchev\nanswered the question. Tantchev objects to this exchange.\n “It is well-settled that ‘when a criminal defendant elects to\ntestify in his own defense, he puts his credibility in issue and\nexposes himself to cross-examination, including the possibil-\nity that his testimony will be impeached.’” United States v.\n\f18 Nos. 18-1200 & 18-1263\n\nKohli, 847 F.3d 483, 492 (7th Cir. 2017) (quoting Boswell, 772 at\n475). Tantchev argues the government’s questioning was im-\nproper because it did not contradict his earlier testimony from\nhis direct examination.\n The government and the district court both interpreted\nTantchev’s testimony to be that he never had any other prob-\nlems with shipments. Tantchev maintains he did not testify\nthat he never had any other problems with his shipments, but\nonly that he had no problems with his shipments that were\noutstanding at the time CBP caught the containers charged in\nthe indictment.\n We conclude both are reasonable interpretations of\nTantchev’s answer from his direct testimony, which, particu-\nlarly given that Tantchev did not let his attorney finish the\nquestion before answering, is ambiguous. That conclusion re-\nsolves the issue. Presented with two possible interpretations,\nwe will not say the district court abused its discretion by\nchoosing one over the other.\n 4.\n Tantchev’s final allegation of error concerns the prosecu-\ntor’s comments during closing arguments. During the trial,\nevidence came in relating to the operations of the Fifth Third\nBank location from which the wire transfers were sent to Bul-\ngaria. Namely, it was introduced that an account holder had\nto be physically present in the branch to send a wire transfer,\n\fNos. 18-1200 & 18-1263 19\n\nand it was the responsibility of two employees, the branch\nmanager and the “banker,”6 to enforce this policy.\n In the course of questioning one of the bank employees,\nthe government elicited testimony that the banker at a partic-\nular branch Tantchev had used during the relevant period\nhad been fired. However, because of objections from the de-\nfense, the government was not able to introduce the witness’s\ntestimony concerning the firing of that branch’s manager or\nwhy those employees were fired.\n Nevertheless, in his closing argument, the prosecutor said,\n“But you heard from Ms. Sanchez that her supervisors back\nat that time at Fifth Third Bank were both fired for malfea-\nsance.” This prompted an objection from defense counsel,\nwho remarked that the reason the supervisors were fired had\nbeen “stricken as hearsay.” The district court then gave the\njury the following admonition: “Ladies and gentlemen, if I\nstruck something from the record, I will tell you now and tell\nyou, again, when I instruct you that you should not consider\nit at all. You should disregard it.” In the final instructions to\nthe jury before it began deliberations, the court also instructed\nthat statements by attorneys are not evidence.\n Tantchev argues the prosecutor’s misstatement of the evi-\ndence prejudiced him to the point of requiring a new trial.\nOur analysis proceeds in two phases: “[W]e first look at the\ndisputed remarks in isolation to determine if they are proper.\nIf they are improper, we then consider the remarks in light of\nthe entire record to determine if the defendant was deprived\n\n 6A witness testified the banker “sits at the desk greeting customers,\ntaking care of them for opening a checking account, savings account,\nCDs, auto loans.”\n\f20 Nos. 18-1200 & 18-1263\n\nof a fair trial.” United States v. Cotnam, 88 F.3d 487, 498 (7th\nCir. 1996). Here, the statement is clearly improper: the prose-\ncutor referenced facts not in evidence. So, we must ask\nwhether that impropriety deprived Tantchev of a fair trial.\n We consider six factors: “(1) whether the prosecutor mis-\nstated evidence; (2) whether the statements implicate a spe-\ncific right of the defendant; (3) whether the defense invited\nthe prosecutor’s remarks; (4) the trial court’s instructions; (5)\nthe weight of the evidence against the defendant; and (6) the\ndefendant’s opportunity to rebut.” United States v. Richards,\n719 F.3d 746, 766 (7th Cir. 2013). The fifth factor is “[t]he most\nimportant,” because “[s]trong evidence of guilt eliminates\nany lingering doubt that the prosecutor’s remarks unfairly\nprejudiced the jury’s deliberations.” Rodriguez v. Peters, 63\nF.3d 546, 558 (7th Cir. 1995) (quoting United States v. Gonzalez,\n933 F.2d 417, 431–32 (7th Cir. 1991)).\n Some of these factors do lean in favor of Tantchev. The\nprosecutor clearly misstated the evidence, and there is no in-\ndication Tantchev invited the remark in any way. But most\nfactors lean against him. The statements did not implicate a\nspecific right. The district court gave a curative instruction\nimmediately after the prosecutor made the remark and in-\nstructed the jury before deliberations that statements by attor-\nneys are not evidence. Tantchev had an opportunity to rebut,\nas his counsel made his closing argument after the prosecutor\nmade the offending statement. Finally, and most importantly,\nthe weight of the evidence is heavily on the side of the gov-\nernment. The prosecutor’s comment went to the structuring\ncharge, the implication being Tantchev was able to perpetrate\nhis financial scheme with the help of corrupt bank employees.\nThat conclusion was not critical to the case. The government\n\fNos. 18-1200 & 18-1263 21\n\npresented evidence of nearly 100 separate deposits totaling al-\nmost $575,000, all close in time, yet no single deposit was ever\nmore than $10,000. These deposits were then quickly followed\nby large wire transfers to bank accounts in Bulgaria,\nTantchev’s native country. And the government showed\nsome of the named account holders were not even in the\nUnited States at the time. In the face of all this evidence, it is\nnot as if the bank employee’s bad acts were the key evidence\nTantchev was making his deposits with the intent to avoid the\nreporting requirements. The prosecutor’s comment was im-\nproper, but it did not deprive Tantchev of a fair trial.\n III.\n This case contains several close calls, and Chogsom and\nTantchev raise compelling points. But our review requires\ndeference to the district court and the jury, both of which have\nseen the witnesses and heard the testimony, and thus have a\ngreater appreciation of what transpired during those six days\nin March 2017. With that deference in mind, and for the rea-\nsons set forth above, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369904/", "author_raw": "Daniel Anthony Manion"}]}	WOOD	MANION	ROVNER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592651/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,653		United States v. Derrick Johnson	2019-02-21	18-2023	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.", "parties": "", "opinions": [{"author": "Michael Stephen Kanne", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2023\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nDERRICK W. JOHNSON,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 17-CR-72 — William M. Conley, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2018 — FEBRUARY 21, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and KANNE,\nCircuit Judges.\n KANNE, Circuit Judge. Derrick Johnson appeals his convic-\ntion for possession of a ﬁrearm in furtherance of a drug traf-\nﬁcking crime. Police arrested him at a Madison, Wisconsin,\nbar carrying ﬁve hydrocodone pills, two cell phones, gem\npacks containing marijuana residue, a plastic bag of antihista-\nmine, and a loaded pistol. Johnson pled guilty to possession\nof a controlled substance with intent to deliver but went to\n\f2 No. 18-2023\n\ntrial on the ﬁrearm charge. On appeal, Johnson claims the dis-\ntrict court committed reversible error in three ways. First, he\nclaims the jury instructions misstated the law and confused\nthe jury. Second, he contends that the district court should not\nhave admitted the government’s proﬀered expert testimony.\nLastly, Johnson argues the government presented insuﬃcient\nevidence to support his conviction. We aﬃrm.\n I. BACKGROUND\n A Madison, Wisconsin, police officer named Joseph Buc-\ncellato recognized Derrick Johnson outside of a campus bar\non June 17, 2017. Johnson wore a jacket; a wardrobe choice\nthat struck the officer as odd for a warm summer night. He\nsuspected Johnson was armed. After confirming an outstand-\ning warrant for Johnson’s arrest, Buccellato and another of-\nficer confronted and attempted to apprehend him. Johnson\nwrestled free from the pair and made a short-lived escape into\nthe bar where the officers ultimately arrested him. The offic-\ners searched Johnson and discovered a Crown Royal whiskey\nbag containing small plastic bags known as gem packs. Some\ngem packs remained unused, others contained marijuana res-\nidue, and five gem packs each contained a hydrocodone pill.\nThe officers also found two cell phones and another plastic\nbag filled with powdered antihistamine. Data pulled from\none of the cell phones revealed Facebook conversations in\nwhich Johnson appeared to arrange drug deals. Most signifi-\ncantly, the officers discovered a loaded pistol with a bullet in\nits chamber zipped up in Johnson’s jacket pocket.\n A grand jury indicted Johnson with one count of pos-\nsessing hydrocodone with intent to distribute and one count\nof possessing a handgun in furtherance of a drug trafficking\ncrime in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.\n\fNo. 18-2023 3\n\n§ 924(c), respectively. Johnson pled guilty to possessing hy-\ndrocodone with intent to distribute but went to trial on the\nfirearm charge.\n Prior to trial, the government designated Bureau of Alco-\nhol, Tobacco, and Firearms (“ATF”) Special Agent Michael\nAalto as an expert witness on drug distribution and traffick-\ning. The government included Aalto’s curriculum vitae with its\nexpert testimony notice. Special Agent Aalto’s law enforce-\nment career spanned more than twenty years. He spent more\nthan half of his time with the ATF, where he served under-\ncover in the drug trade and worked with informants. The ex-\npert witness notification explained that Aalto would offer his\nopinion on the habits, customs, and practices of drug dealers.\nSpecifically, Aalto would testify about the different items dis-\ncovered in Johnson’s possession during his arrest and their\nrelationship to drug dealing. According to the government,\nthis testimony would help the jury understand how Johnson\nused the pistol “in furtherance of” the drug crime. The gov-\nernment also identified Buccellato as an expert witness.\n Johnson moved in limine to exclude the testimony of both\nAalto and Buccellato as irrelevant. Johnson argued that be-\ncause he pled guilty to possession with intent to distribute,\nthe government no longer needed to prove he dealt drugs. Al-\nternatively, Johnson contended that the district court should\nweigh and exclude Aalto’s and Buccellato’s testimony under\nFederal Rule of Evidence 702.\n The district court held a hearing and, relying on our cases\ndescribing such testimony as helpful and relevant, rejected\nJohnson’s Rule 702 argument. The court also noted that expert\ntestimony about why drug dealers possess guns and how\n\f4 No. 18-2023\n\nthey use them provides helpful information for lay jurors un-\nfamiliar with the clandestine narcotics world and accordingly\nrejected Johnson’s relevance argument. The court explained\nthat testimony concerning the other items Buccellato recov-\nered from Johnson during the arrest could provide context for\nJohnson’s firearm possession.\n At trial, Aalto testified to a variety of factors. Based on the\nFacebook conversation data taken from one of Johnson’s\nphones, Aalto concluded that Johnson made an appointment\nto sell Xanax two and a half hours before his arrest. Aalto ex-\nplained that drug dealers commonly use gem packs to pack-\nage drugs for sale. The government asked Aalto about the re-\nlationship between drugs and guns. He observed that due to\ndrug dealing’s dangerous nature, guns and drugs go hand-in-\nhand and concluded “[w]here there’s guns, there’s drugs, and\nwhere there’s drugs, there’s guns.” On cross-examination by\nJohnson’s counsel, Aalto walked back his broad assertion,\nnoting that drugs and guns go together not always, but\n“[m]ost of the time.”\n As trial closed, the district court considered the parties’\nproposed jury instructions. The government asked the court\nto supplement the pattern jury instruction explaining the “in\nfurtherance of” element with factors identiﬁed in United States\nv. Duran, 407 F.3d 828, 845 (7th Cir. 2005). Conversely, John-\nson requested that the district court borrow a jury instruction\nused in a previous case which included a dictionary deﬁnition\nof the word “facilitate.” Over Johnson’s objection, the district\ncourt ultimately administered a pattern-based jury instruc-\ntion but added both the dictionary deﬁnition of “facilitate”\nand the Duran factors the court deemed relevant to the case.\n\fNo. 18-2023 5\n\nThe court omitted Duran factors related to the gun’s legal sta-\ntus because it previously granted the government’s motion in\nlimine to exclude evidence about whether Johnson legally pos-\nsessed the pistol.\n In the following presentation of the jury instruction, the\nbolded text highlights the added Duran factors. Johnson’s re-\nquested dictionary language deﬁning “facilitate” is italicized:\n As used in the second element of Count 2, a person\n possesses a ﬁrearm in furtherance of a drug traﬃck-\n ing crime if the ﬁrearm furthers, advances, moves\n forward or facilitates the crime. The mere presence\n of a ﬁrearm at the scene of a drug traﬃcking crime\n is not enough to establish that the ﬁrearm was pos-\n sessed in furtherance of the crime. There must be\n some additional connection between the ﬁrearm and\n the crime. In making this determination, you should\n consider all of the evidence, including: the type of\n drug activity that is being conducted; the type,\n value and amount of drugs; the accessibility of the\n ﬁrearm; the type of the ﬁrearm; whether the ﬁrearm\n is loaded; the proximity of the ﬁrearm to drugs or\n drug proﬁts; the time and circumstances under\n which the gun is found; and whether the ﬁrearm makes\n the crime possible, easier to commit, or more likely to suc-\n ceed. While these factors or any other factor you\n deem important may be useful, they are not to be\n applied rigidly or with equal weight. The weight, if\n any, you give these or other factors is up to you. No\n factor or combination of factors is dispositive. In-\n stead, you are to be guided primarily by common\n sense in deciding if “the ﬁrearm furthered, ad-\n vanced, moved forward or facilitated the crime.”\n(R. 72 at 6).\n\f6 No. 18-2023\n\n The jury convicted Johnson. He subsequently challenged\nthe suﬃciency of the evidence under Federal Rule of Criminal\nProcedure 29, which the district court denied. He appealed.\n II. ANALYSIS\n Johnson argues the district court erred in three ways. First,\nhe contends the court administered jury instructions that mis-\nstated the law and confused the jury. Second, he challenges\nthe admission of the government’s expert witness testimony.\nThird, Johnson maintains that insuﬃcient evidence sup-\nported his conviction.\n A. The District Court Administered Adequate Jury Instruc-\n tions\n Johnson argues that the jury instructions misstated the law\nand confused the jury. He objects to the instructions because\nthe district court included the Duran factors in the “in further-\nance of” instruction and placed his proposed dictionary deﬁ-\nnition language among the factors.\n We review whether a jury instruction accurately states the\nlaw de novo. United States v. DiSantis, 565 F.3d 354, 359 (7th Cir.\n2009). District courts can improve pattern jury instruction lan-\nguage or “start from scratch.” United States v. Edwards, 869\nF.3d 490, 500 (7th Cir. 2017). We give the district court discre-\ntion on precise wording “so long as the ﬁnal result, read as a\nwhole, completely and correctly states the law.” DiSantis, 565\nF.3d at 359 (quoting United States v. Gibson, 530 F.3d 606, 609\n(7th Cir. 2008).\n The jury convicted Johnson of possessing a ﬁrearm in fur-\ntherance of a drug crime. 18 U.S.C. § 924(c). The statute pro-\nvides that “[a]ny person who, during and in relation to any\ncrime of violence or drug traﬃcking crime … in furtherance\n\fNo. 18-2023 7\n\nof any such crime, possesses a ﬁrearm, shall … be sentenced\nto a term of imprisonment of not less than 5 years[.]”\n§ 924(c)(1)(A)(i).\n We previously examined the statute’s “in furtherance of”\nlanguage and determined it requires that the weapon “fur-\nther, advance, move forward, promote or facilitate the drug-\ntraﬃcking crime.” Duran, 407 F.3d at 840 (citing United States\nv. Castillo, 406 F.3d 806 (7th Cir. 2005)). The recurring factual\ninquiry in cases where an arrested drug dealer possesses (but\ndoes not brandish) a ﬁrearm centers on the dealer’s purpose\nfor carrying the weapon. In Duran, we recognized the diﬃ-\nculty in distinguishing between lawful carrying for personal\nprotection and carrying to protect a drug stash. Duran, 407\nF.3d at 840.\n To help the juries, we borrowed a list of factors articulated\nby the Fifth Circuit including, “the type of drug activity that\nis being conducted, accessibility of the ﬁrearm, the type of the\nweapon, whether the weapon is stolen, the status of the pos-\nsession (legitimate or illegal), whether the gun is loaded,\nproximity to drugs or drug proﬁts, and the time and circum-\nstances under which the gun is found.” Id. (quoting United\nStates v. Ceballos-Torres, 218 F.3d 409, 414–15 (5th Cir.), modi-\nﬁed on denial of rehearing, 226 F.3d 651 (5th Cir. 2000)). As\nwe noted in Duran, these factors are not exhaustive, nor are\nthey necessary. 407 F.3d at 840. Overall, we emphasize com-\nmon sense as the jury’s guide. Id.\n Here, Johnson raises two main objections to the instruc-\ntion. First, he believes the instruction’s arrangement led the\njury to believe it could discard part of the legal standard. Spe-\nciﬁcally, the district court added the dictionary language de-\n\f8 No. 18-2023\n\nﬁning “facilitate” to the end of the listed Duran factors. Be-\ncause the instruction described the Duran factors as optional,\nJohnson believes the jury could have interpreted the instruc-\ntion to mean that it was optional to ﬁnd that the gun “facili-\ntated” the drug crime. And because “facilitate” is one of the\nwords used to describe “furthered,” the jury could have\nthought that it was optional to ﬁnd that Johnson possessed the\ngun “in furtherance of” his drug dealing. Second, Johnson ar-\ngues that the district court abused its discretion by including\nthe Duran factors in the instruction. Johnson complains that\nthe court only included factors detrimental to his case and ex-\ncluded potentially helpful factors. Moreover, he claims that\neven though the commentary to the pattern instruction rec-\nommends providing jurors with the Duran factors, providing\nthem in this case distracted the jury from its primary task.\n We disagree. The administered jury instruction included\nthe critical Castillo standard twice—at the beginning and end.\nAlthough the district court placed the dictionary language\nprior to a sentence advising the jury to give the Duran factors\nthe weight—if any—it deemed appropriate, the instruction\ndeﬁnitively and properly concluded with Castillo’s standard.\nThe instruction eﬀectively gave the jury its task, listed consid-\nerations to weigh in its discretion, and then iterated the\nproper legal standard. The instruction clearly informed the\njury that it must ultimately determine whether “the ﬁrearm\nfurthered, advanced, moved forward or facilitated the crime.”\nCastillo, 406 F.3d at 821. By bookending the non-patterned lan-\nguage with the Castillo standard, the instruction suﬃciently\ninformed the jury of its task of determining whether he pos-\nsessed the ﬁrearm in furtherance of his drug dealing.\n\fNo. 18-2023 9\n\n We similarly disagree with Johnson’s argument that the\ndistrict court abused its discretion by including the Duran fac-\ntors or prejudiced him by including only a few. We previously\nexplained that not all the Duran factors are equally helpful in\na given situation. United States v. Brown, 724 F.3d 801, 803 (7th\nCir. 2013). Because the instruction clearly articulated the Cas-\ntillo standard, we doubt that listing relevant Duran factors\ncaused the jury signiﬁcant confusion. Further, the instruction\ncautioned the jury to only consider the factors to the extent\nthey proved helpful and suggested that the jury could con-\nsider additional, unlisted factors.\n Although the jury instructions accurately stated the law in\nthis case, we re-emphasize that common sense should serve\nas the jury’s primary guide in these cases. Duran, 407 F.3d at\n840. To that end, we urge district courts drafting jury instruc-\ntions to consider whether “less is more” in each case. While\nthe Duran factors provide helpful considerations, simple and\nsuccinct instructions invite the jury to rely on its own intuition\nand common sense in resolving the cases. Gehring v. Case\nCorp., 43 F.3d 340, 344 (7th Cir. 1994) (“Good instructions use\nsimple words in short, concrete sentences.”); see also Brown,\n724 F.3d at 803 (7th Cir. 2013) (noting that “[i]t can be easier\nto determine ‘furtherance’ by a holistic analysis than by dis-\nsecting the issue into parts.”).\n B. The District Court Did Not Err by Admitting the Govern-\n ment’s Expert Witness Testimony\n Johnson argues that the district court erroneously admit-\nted Special Agent Aalto’s expert testimony. He objects to\nAalto’s testimony on two grounds. First, he argues that the\ndistrict court should have excluded Aalto’s testimony about\nthe relationship between drugs and guns because it failed to\n\f10 No. 18-2023\n\nsatisfy the requirements of Federal Rule of Evidence 702 and\nDaubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Alter-\nnatively, Johnson contends that the court should have ex-\ncluded as irrelevant any portion of Aalto’s testimony not di-\nrectly related to the relationship between drugs and guns un-\nder Federal Rule of Evidence 401.\n 1. The District Court Did Not Abuse Its Discretion by Admit-\n ting Aalto’s Testimony Under Rule 702\n The admission of expert testimony is governed by Federal\nRule of Evidence 702 and Daubert. See C.W. ex rel. Wood v. Tex-\ntron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). Under Rule 702,\nexpert testimony must assist the trier of fact and demonstrate\nsuﬃcient reliability. Id.\n “We employ a two-step standard of review in cases chal-\nlenging a district court’s admission or exclusion of the testi-\nmony of an expert.” Textron, 807 F.3d at 835. We ﬁrst review\nthe district court’s application of Daubert’s framework de novo.\nId. Second, if the district court properly applied Daubert, we\nreview its decision not to exclude expert testimony for an\nabuse of discretion. Id. We aﬀord the district court’s eviden-\ntiary rulings special deference and ﬁnd an abuse of discretion\n“only where no reasonable person could take the view\nadopted by the trial court.” United States v. Causey, 748 F.3d\n310, 316 (7th Cir. 2014) (quotation omitted).\n “The Supreme Court has made clear that in applying Rule\n702, district courts serve a gatekeeping function and must en-\nsure that the expert testimony at issue ‘both rests on a reliable\nfoundation and is relevant to the task at hand.’” United States\nv. Cruz-Velasco, 224 F.3d 654, 660 (7th Cir. 2000) (quoting Daub-\nert, 509 U.S. at 597). In Kumho Tire Co. v. Carmichael, the Court\n\fNo. 18-2023 11\n\nexplained that when testing the reliability of an expert opin-\nion, courts must adjust the Daubert “gatekeeper” factors to ﬁt\nthe facts of the particular case at issue. 526 U.S. 137, 147 (1999).\n “Our court has long recognized that testimony regarding\nthe methods used by drug dealers is helpful to the jury and\ntherefore a proper subject of expert testimony.” United States\nv. Winbush, 580 F.3d 503, 510–11 (7th Cir. 2009); see also United\nStates v. Foster, 939 F.2d 445, 452 (7th Cir. 1991) (“‘The investi-\ngator and the expert witness both serve as a link to the drug\nculture in providing the jury with [an] understanding of the\nintricate patterns and modus operandi’ of those involved in nar-\ncotics traﬃcking.” (alteration in original) (quoting United\nStates v. Gonzalez, 933 F.2d 417, 428–29 (7th Cir. 1991)).\n Johnson argues that the district court improperly applied\nthe Daubert framework to Aalto’s testimony and instead\ndeemed Aalto’s testimony per se reliable and admissible. Spe-\nciﬁcally, Johnson objects to the district court’s characteriza-\ntion of the case law concerning law enforcement expert testi-\nmony about drug dealers’ modus operandi. He claims that the\ndistrict court failed to seriously consider whether and how\nAalto’s experience and training supported his opinion con-\ncerning relationship between drugs and guns.\n We disagree. Johnson’s objections to the admission of\nAalto’s testimony bear a striking resemblance to those raised\nin United States v. Tingle, 880 F.3d 851, 854 (7th Cir.), cert. de-\nnied, 138 S. Ct. 1567 (2018). In that case, the defendant faced\ncharges for possessing and distributing methamphetamine\nand possessing a ﬁrearm in furtherance of a drug traﬃcking\ncrime. Id. at 852. He argued that the district court errantly al-\nlowed the government’s witness to testify as an expert, “with-\nout properly examining his credentials or considering\n\f12 No. 18-2023\n\nwhether expert testimony would assist the jury.” Id. at 854.\nWe explained that the district court need not conduct a Daub-\nert hearing, “‘where the reliability of an expert’s methods is\nproperly taken for granted.’” Id. (quoting Kumho Tire, 526 U.S.\nat 152). And we relied on the witness’s expertise—with 16\nyears of experience with the DEA and 14 years of experience\nwith the Missouri State Highway Patrol—to determine that he\nwas clearly “qualiﬁed to testify as an expert in his ﬁeld and\nthat his testimony could be helpful to the jury.” Tingle, 880\nF.3d at 854. We also noted expert’s formal law enforcement\ntraining and heavy involvement in drug cases. Id. Even before\nTingle, this court explained that such testimony is reliable\nwhen based both on signiﬁcant law enforcement experience\nand an application of the case’s facts. United States v. Allen, 269\nF.3d 842, 846 (7th Cir. 2001).\n Here the district court similarly declined to conduct a\nDaubert hearing concerning Aalto’s expert testimony on the\nrelationship between drugs and guns in the narcotics under-\nworld. However, the record reﬂects that the court considered\nAalto’s signiﬁcant qualiﬁcations and experience, and\nproperly applied the Daubert framework.\n As to Johnson’s objections to Aalto’s methodologies, the\ndistrict court correctly explained that the premise of admit-\nting testimony like Aalto’s relies on the notion that jurors “are\nnot well versed in the behavior of drug dealers.” Winbush, 580\nF.3d at 511 (quoting Foster, 939 F.2d at 452). The court noted\nthat Aalto could relay to the jury behaviors he personally wit-\nnessed among drug dealers. These experiences could help ex-\nplain how and why drug dealers possess ﬁrearms. In other\nwords, Aalto’s shared experiences gave the jurors context for\nan unfamiliar subculture and provided them with a better\n\fNo. 18-2023 13\n\nfoundational understanding than they might glean from tele-\nvision or popular culture. Foster, 939 F.2d at 452. This testi-\nmony was relevant to Johnson’s case because it helped the\njury better evaluate whether his ﬁrearm possession was con-\nsistent with and typical to the drug trade.\n 2. The District Court’s Properly Admitted Aalto’s Other Testi-\nmony\n Johnson additionally contends that the district court erred\nbecause it admitted Aalto’s testimony about the other items\nJohnson possessed during the arrest and Johnson’s Facebook\nmessages. Because the government only needed to prove the\nﬁrearm charge, Johnson believes the district court should\nhave excluded evidence unrelated to the ﬁrearm as irrelevant\nunder Federal Rule of Evidence 401.\n “The standard of review for the admission of evidence\nwhere relevance is at issue is … abuse of discretion.” United\nStates v. Gill, 58 F.3d 334, 337 (7th Cir. 1995). District courts\nproperly admit evidence as relevant if “it has any tendency to\nmake a fact more or less probable than it would be without\nthe evidence.” Fed. R. Evid. 401(a).\n Johnson objects to Aalto’s testimony about how his activi-\nties resembled those of the typical drug dealer. This includes\nAalto’s testimony on how drug dealers often carry multiple\ncell phones, how they prepackage drugs, how Johnson’s Fa-\ncebook messages showed him setting up a drug deal using\nindustry slang, and how much money drug dealers carry on\nthem at a given time.\n We cannot agree with Johnson that the district court\nabused its discretion by admitting this testimony. Aalto’s tes-\n\f14 No. 18-2023\n\ntimony provided the jury with relevant context clues concern-\ning Johnson’s ﬁrearm. While Johnson could have been carry-\ning a ﬁrearm for a lawful purpose—as many citizens do—the\nother items in Johnson’s possession and his Facebook mes-\nsages undoubtedly changed the situation’s complexion.\nAalto’s testimony showed that Johnson carried many regular\ntools of a drug dealer and the ﬁrearm’s presence among them\nwas not merely incidental.\n C. Suﬃcient Evidence Supported Johnson’s Conviction\n Lastly, Johnson argues that the government presented in-\nsuﬃcient evidence to support his conviction. Speciﬁcally, he\nbelieves that the government failed to provide evidence link-\ning his ﬁrearm to drug dealing. He urges that upholding the\ndistrict court’s ruling eﬀectively sets a standard that simply\npossessing a gun while simultaneously possessing drugs suf-\nﬁciently supports a conviction under 18 U.S.C. § 924(c).\n “We review suﬃciency of evidence challenges in the light\nmost favorable to the prosecution and will only reverse if we\ndetermine that no reasonable ﬁnder of fact could ﬁnd the de-\nfendant guilty beyond a reasonable doubt.” United States v.\nEller, 670 F.3d 762, 765 (7th Cir. 2012). Our role is “limited to\nensuring that a valid legal theory supports the conviction and\nthat there is some evidence from which a rational jury could\nﬁnd in favor of that legal theory.” United States v. Amaya, 828\nF.3d 518, 525 (7th Cir. 2016) (quoting Duran, 407 F.3d at 842).\n We previously explained that, “the mere presence of a ﬁre-\narm in a home or location where drugs are sold is not itself\nsuﬃcient to prove the ‘in furtherance of’ prong of the statute\nand that there must be some nexus or connection between the\nﬁrearm and the drug-selling operation.” Eller, 670 F.3d at 765.\n\fNo. 18-2023 15\n\nAlthough we continue to caution that juries must ﬁnd reason-\nable connections (beyond mere proximity) linking the ﬁrearm\nand the drug operation, we also iterate that a “fact ﬁnder is\ncertainly entitled to come to the common-sense conclusion\nthat when someone has both drugs and a ﬁrearm on their per-\nson, the gun is present to further drug traﬃcking.” Castillo,\n406 F.3d at 815 (quoting United States v. Lomax, 293 F.3d 701,\n706 (4th Cir. 2002)).\n We disagree with Johnson’s claim that the government\npresented insuﬃcient evidence to support his conviction.\nJohnson’s Facebook messages indicate that he conducted a\ndrug deal earlier the same evening. When Oﬃcer Buccellato\nmade the arrest, Johnson’s pockets contained controlled sub-\nstances that he packaged individually for sale. Johnson also\ncarried other drug-dealing accoutrements. The loaded pistol\nhad a bullet in its chamber. A reasonable fact ﬁnder could de-\ntermine that Johnson carried a pistol to protect himself and\nhis drugs on the night he was arrested. Altogether, we believe\nsuﬃcient evidence supported the jury’s verdict ﬁnding John-\nson guilty beyond a reasonable doubt.\n III. CONCLUSION\n The district court administered jury instructions that cor-\nrectly stated the law and suﬃciently charged the jury with its\ntask of determining whether Johnson possessed his ﬁrearm in\nfurtherance of a drug traﬃcking crime. The district court per-\nmissibly admitted Special Agent Aalto’s testimony, which\nAalto based on signiﬁcant law enforcement training and drug\nenforcement experience. Lastly, the government presented\nsuﬃcient evidence to support Johnson’s conviction.\nAFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369906/", "author_raw": "Michael Stephen Kanne"}]}	WOOD	EASTERBROOK	KANNE	1	{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "KANNE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592653/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,735		United States v. Nikolay Tantchev	2019-02-21	18-1200	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and MANION and ROVNER, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 18-1200 & 18-1263\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nNIKOLAY TANTCHEV and\nBATMAGNAI CHOGSOM,\n Defendants-Appellants.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-cr-174 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED NOVEMBER 1, 2018 — DECIDED FEBRUARY 21, 2019\n ____________________\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Cir-\ncuit Judges.\n MANION, Circuit Judge. After a six-day trial involving\ntwenty-nine witnesses, a federal jury convicted Nikolay\nTantchev of exporting and attempting to export stolen cars,\nsubmitting false documents to customs officials, and structur-\ning financial transactions to avoid federal reporting require-\nments. That same jury acquitted Tantchev’s co-defendant,\n\f2 Nos. 18-1200 & 18-1263\n\nBatmagnai Chogsom, of charges related to the stolen cars and\nfalse documents, but it convicted Chogsom of making a false\nstatement to an IRS agent. The district court sentenced\nTantchev to 40 months’ imprisonment and Chogsom to 3\nyears’ probation.\n Both defendants appeal their convictions. Tantchev al-\nleges several errors by the district court at trial, and Chogsom\nchallenges the sufficiency of the evidence against him. We af-\nfirm the convictions.\n I.\n Tantchev, a native of Bulgaria, owned a trucking business\nthat operated out of a warehouse in Chicago. Chogsom, a\nMongolian immigrant, worked for Tantchev.\n In 2008, Tantchev began shipping containers of goods to\nBulgaria using a company called Atlantic Express. Seeing an\nopportunity, Tantchev started a small side-business arrang-\ning shipping containers from Atlantic Express for others.\nTantchev would order containers from Atlantic Express at a\ndiscount and charge a premium for acting as a middle man.\nThough he had the containers delivered to his Chicago ware-\nhouse, this was a separate operation from his normal trucking\nbusiness. Through Chogsom, members of Chicago’s Mongo-\nlian community began coming to Tantchev to set up ship-\nments to Mongolia. These shipments often included vehicles.\n According to Tantchev, his involvement with these inter-\nnational shipments was minimal. A customer looking to ship\nsomething would approach Tantchev or Chogsom. Tantchev\nwould then order a shipping container from Atlantic Express,\nwhich would drop it off at Tantchev’s warehouse. The cus-\ntomer would come to the warehouse and load the container\n\fNos. 18-1200 & 18-1263 3\n\nhimself, and the container would be sealed. Atlantic Express\nwould then pick up the loaded container from the warehouse.\nTantchev would fill out the appropriate papers based on what\nhis customers told him and send the papers and any other\ndocuments to Atlantic Express to forward to United States\nCustoms and Border Protection (CBP).\n In the early part of 2011, CBP discovered three of\nTantchev’s shipments to Mongolia contained stolen cars.1 Ad-\nditionally, the documentation Tantchev had submitted did\nnot accurately reflect the contents of the containers. One con-\ntainer was supposed to hold a Honda, but instead contained\na stolen BMW. Two others were declared as containing min-\ning machinery, but they actually contained a stolen Mercedes\nand two stolen Lexuses.\n Also in early 2011, Tantchev began making large deposits\ninto seven bank accounts at Fifth Third Bank and Chase Bank.\nTwo of the accounts were in Tantchev’s name, one belonged\nto his father, and the other four were in the names of Kosa\nBonev, Otgonbayar Jigmidsambuu, Jianmei Li, and Yu Li, re-\nspectively. No single deposit was ever over $10,000, the max-\nimum amount that does not trigger a federal reporting re-\nquirement. Despite no single deposit ever breaching that\n$10,000 ceiling—which Tantchev knew to be the reporting\nthreshold—Tantchev managed to deposit $574,965 into those\naccounts in less than two months, from March 14 to May 4,\n2011. Then, despite the fact that some of the account holders\n\n 1The parties do not dispute that the cars were stolen. All four cars\ncharged in the indictment were subject to liens. When authorities re-\nported to the creditors that the cars had been discovered on shipping\ncontainers bound for Mongolia, the creditors reported them stolen and\nrecovered them.\n\f4 Nos. 18-1200 & 18-1263\n\nwere not even in the United States at the time, from March 16\nto May 5, 2011, wire transfers were sent from the accounts of\nBonev, Jigmidsambuu, Jianmei Li, and Yu Li in the total\namount of $552,090 to twenty-two different accounts located\nin Sofia, Bulgaria.2 This activity prompted Fifth Third Bank to\nreport Tantchev for suspected criminal activity.\n The IRS began an investigation after receiving the report\nfrom Fifth Third Bank. As part of that investigation, Agent Ja-\nson Gibson set out to find Jianmei Li, the listed owner of one\nof the Fifth Third bank accounts. Through the Illinois Secre-\ntary of State, Agent Gibson acquired the information and a\nphoto from an Illinois identification card in that name. After\nthe address on the ID proved to be a bust, he and another\nagent went to the address connected with the bank account.\nAt that address, he spoke with Gerelt Dashdorj, the nephew\nof defendant Chogsom. After talking with Dashdorj and\nshowing him the picture from the ID, Agent Gibson believed\nJianmei Li was Burmaa Chogsom, defendant Chogsom’s sis-\nter.\n Agent Gibson then went to interview defendant Chogsom.\nHe showed Chogsom the photo from the Illinois ID and asked\n\n 2 From whom all this money came and whether they are trying to get\nit back are among the hollow spots in this case—questions the facts raise\nin questioning minds but the parties do not litigate or answer. The gov-\nernment presented evidence at trial suggesting Tantchev received\n$750,000 in wire transfers from Mongolia (including several transfers la-\nbeled “for car”), but it did not have direct evidence that was the source\nof the full $574,965. Neither is there any discussion in the briefs about\nwhether these Mongolian buyers were unwittingly purchasing stolen\ncars or were themselves part of the criminal scheme. While these ques-\ntions are ultimately immaterial because the facts we have are enough to\nresolve this appeal, there is doubtless more to the story.\n\fNos. 18-1200 & 18-1263 5\n\nhim if he recognized the woman. Chogsom replied it was\n“Jianmei Li,” a woman with whom he used to work. Agent\nGibson asked Chogsom if he had a sister named Burmaa.\nChogsom answered he did, and that she was in Mongolia.\nAgent Gibson never asked if the woman in the photo was\nChogsom’s sister Burmaa.\n As it turns out, the woman in the photo was indeed\nBurmaa Chogsom. She had acquired the Illinois ID in the\nname of Jianmei Li using a fraudulent Chinese passport and\na Social Security number originally issued to a worker in Sai-\npan. She had returned to Mongolia in 2010.\n A federal grand jury issued an indictment against\nTantchev and Chogsom on March 16, 2016. The indictment\ncharged Tantchev with three counts of exporting and at-\ntempting to export stolen vehicles, two counts of submitting\nfalse writings to CBP, and one count of structuring deposits\nto avoid federal reporting requirements. The indictment\ncharged Chogsom with two counts relating to the export of\nstolen vehicles, one count of submitting false writings, and\none count of lying to an IRS agent based on his identifying the\nwoman in the photo as Jianmei Li rather than as Burmaa\nChogsom.\n The case proceeded to a jury trial. The jury heard testi-\nmony from twenty-seven witnesses for the government and\nfrom both defendants. The jury convicted Tantchev of all\ncharges leveled against him. It convicted Chogsom of lying to\nthe IRS agents and acquitted him of the remaining charges.\nBoth defendants made post-trial motions for judgment of ac-\nquittal, and Tantchev moved for a new trial. The district court\ndenied all three motions. The defendants appeal.\n\f6 Nos. 18-1200 & 18-1263\n\n II.\n Tantchev appeals the denial of his motion for a new trial,\nalleging multiple errors. Chogsom appeals the denial of his\nmotion for judgment of acquittal. As these two defendants\npresent discrete issues, we will address them separately.\n A.\n We begin with Chogsom’s appeal of the denial of his mo-\ntion for judgment of acquittal. “We review a district court’s\ndenial of a motion for judgment of acquittal de novo in the light\nmost favorable to the prosecution.” United States v. Giovenco,\n773 F.3d 866, 869 (7th Cir. 2014). We will affirm “[i]f any ra-\ntional trier of fact could have found the essential elements of\nthe crime beyond a reasonable doubt.” Id. It is the defendant’s\ntask to convince us of the insufficiency of the evidence, a bur-\nden we have called “heavy, indeed, nearly insurmountable.”\nUnited States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010).\n The indictment charged Chogsom with violating 18 U.S.C.\n§ 1001(a)(2), which makes it a crime to “knowingly and will-\nfully [make] a materially false statement in connection with a\nmatter within the jurisdiction of a federal agency.” United\nStates v. Rahman, 805 F.3d 822, 836 (7th Cir. 2015). The indict-\nment read: “[I]n response to the agents’ question as to\nwhether CHOGSOM recognized the woman in the photo they\ndisplayed, CHOGSOM responded that the person depicted in\nthe photo was ‘Jianmei Li’… .”3\n\n 3 The jury instructions described the charge as follows: “Chogsom is\ncharged … with knowingly and willfully making a false statement when\nhe was interviewed by agents of the [IRS] … about whether he recog-\nnized and knew the name of a woman depicted in a photo the agents dis-\nplayed to him… .”\n\fNos. 18-1200 & 18-1263 7\n\n Chogsom admits to identifying the woman as Jianmei Li.\nHe admits he knew the woman in the photo was his sister\nBurmaa. He even admits he gave the name “Jianmei Li” be-\ncause he wanted to protect his sister from immigration prob-\nlems. Nevertheless, Chogsom argues the jury should not have\nconvicted him because his answer was not literally false.\nChogsom maintains his sister was using the name Jianmei Li\nin the United States. It was her American alias, like a “street\nname.” Because Burmaa was using the name Jianmei Li in the\nUnited States, Chogsom maintains his answer that the woman\nin the photo was Jianmei Li was literally true, and thus he did\nnot “make a false statement” in violation of the statute.\n A statement that is literally true cannot support a convic-\ntion under § 1001(a)(2), “even if a defendant gives a mislead-\ning or nonresponsive answer.” Rahman, 805 F.3d at 838. For\nexample, in Bronston v. United States, 409 U.S. 352 (1973),4 the\ngovernment charged Samuel Bronston with committing per-\njury at a bankruptcy hearing. An attorney for a creditor asked\nBronston, the president of the bankrupt company, if Bronston\nhad ever had an account at a Swiss bank. Bronston answered,\n“The company had an account there for about six months, in\nZurich.” He did not mention his former personal account at\nthe International Credit Bank in Geneva. However, it was un-\ndisputed that his statement concerning the company’s ac-\ncount was true. Id. at 353–54.\n\n\n 4 Bronston and United States v. Gorman, 613 F.3d 711 (7th Cir. 2010),\nwhich we discuss below, both address prosecutions under federal per-\njury statutes, not § 1001(a). But we have applied the reasoning of those\ncases in the § 1001 context. Rahman, 805 F.3d at 838 (citing both Gorman\nand Bronston in addressing the appeal of a conviction under 18 U.S.C. §\n1001).\n\f8 Nos. 18-1200 & 18-1263\n\n And that made all the difference to the Supreme Court,\nwhich overturned Bronston’s conviction under the perjury\nstatute. Id. at 362. Though his answer gave “an implication …\nthat there was never a personal bank account … [t]he [per-\njury] statute does not make it a criminal act for a witness to\nwillfully state any material matter that implies any material\nmatter that he does not believe to be true.” Id. at 357–58. The\nCourt stated, “The burden is on the questioner to pin the wit-\nness down to the specific object of the questioner’s inquiry.”\nId. at 360. If the questioner was not satisfied with Bronston’s\nnon-responsive answer, he should have pressed the issue\nwith his questions. Id. at 362.\n So sometimes, by cleverness and quick thinking, a defend-\nant can avoid directly answering a tough question without ex-\nposing himself to conviction for doing so. But sometimes not.\nIn United States v. Gorman, 613 F.3d 711 (7th Cir. 2010),\nJamarkus Gorman was called to testify before a grand jury.\nOne of the grand jurors asked him, “Mr. Gorman, did you\nhave a Bentley in your garage at [your condominium com-\nplex]?” Gorman replied, “No.” Only, there had been a Bentley\nin the garage. The vehicle belonged to Gorman’s cousin, but\nGorman had given a condominium employee the impression\nit belonged to him and eventually orchestrated its removal\nfrom the garage so he could steal its contents. Gorman was\ncharged with and convicted of perjury based on his answer to\nthe grand jury. Id. at 714–17.\n Appealing his perjury conviction, Gorman “argue[d] he\ncould not have perjured himself because he did not ‘have’ a\nBentley”; it was his cousin’s. Gorman argued “have” requires\nownership, not just possession. Id. at 715–16\n\fNos. 18-1200 & 18-1263 9\n\n We acknowledged that Gorman’s argument, “[w]hen\nstretched to its logical limit,” had “some merit.” Id. at 716. Af-\nter all, “have” has many meanings. Id. (citing Webster’s Third\nNew International Dictionary 1039 (Philip Babcock Gove ed., 3d\ned. 1986)). “But what [Gorman] ignore[d] is that our prece-\ndent dictates that even when a question or answer is ambigu-\nous, a conviction may still be upheld if a jury has been called\nupon ‘to determine that the question as the defendant under-\nstood it was falsely answered… .’” Id. (last alteration in origi-\nnal) (quoting United States v. Scop, 940 F.2d 1004, 1012 (7th Cir.\n1991)). We concluded the jury at Gorman’s perjury trial was\nwell within its rights to find Gorman understood the grand\njuror’s question as inquiring about possession, rather than\nownership, so his answer to the question as asked was know-\ningly false. Id.\n The instant case is much more similar to Gorman than\nBronston. Here, the IRS agents asked Chogsom to identify the\nwoman in the photo from the Illinois ID. He knew it was his\nsister Burmaa, but he told them “Jianmei Li.”\n Chogsom, like Gorman, argues he gave an acceptable an-\nswer to an ambiguous question. And, as in Gorman, that argu-\nment has some validity. “Who is this?” or “Do you know who\nthis is?” are undoubtedly ambiguous questions. And Jianmei\nLi was certainly an identity for the woman named Burmaa\nChogsom—the government’s own evidence shows she had\nan ID with “Jianmei Li” on it. Nevertheless, the jury was enti-\ntled to resolve that ambiguity against Chogsom and conclude\nhe understood the IRS agents wanted to know Burmaa’s “ac-\ntual” name, not the alias she acquired with a fake Chinese\npassport. Understood that way, Chogsom’s decision to give\nher alias was not just misleading, as was the case in Bronston,\n\f10 Nos. 18-1200 & 18-1263\n\nbut false, as in Gorman. Accordingly, we cannot say it was un-\nreasonable for the jury to conclude Chogsom gave a false an-\nswer to the IRS agents’ ambiguous question.\n B.\n We turn now to Tantchev, who alleges four errors he be-\nlieves entitle him to a new trial. We take them in turn, noting\nthat we will reverse the district court’s decision to deny his\nmotion for a new trial only if we find an abuse of discretion.\nUnited States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012).\n 1.\n Tantchev first contends the district court should not have\ngiven a deliberate avoidance or “ostrich” instruction. Before\ngetting into the analysis, some additional background is help-\nful. The government charged Tantchev with exporting and at-\ntempting to export stolen vehicles and submitting false writ-\nten statements to CBP. Both crimes require that the defendant\nacted with knowledge. See 18 U.S.C. § 553(a) (“Whoever\nknowingly imports, exports or attempts to import or export—\n(1) any motor vehicle…knowing the same to have been sto-\nlen… .”); 18 U.S.C. § 1001(a) (“[W]hoever … knowingly and\nwillfully…(3) makes or uses any false writing or document\nknowing the same to contain any materially false, fictitious,\nor fraudulent statement or entry … .”). In defense, Tantchev\ncontested only the knowledge element of the offenses. He\nmaintained he did not know he was exporting stolen cars and\nsubmitting false information to CBP.\n The government requested the court give an ostrich in-\nstruction, which is meant “to inform the jury that a person\nmay not escape criminal liability by pleading ignorance if he\nknows or strongly suspects he is involved in criminal dealings\n\fNos. 18-1200 & 18-1263 11\n\nbut deliberately avoids learning more exact information\nabout the nature or extent of those dealings.” United States v.\nGreen, 648 F.3d 569, 582 (7th Cir. 2011) (internal quotation\nmarks omitted) (quoting United States v. Carani, 492 F.3d 867,\n873 (7th Cir. 2007)). Tantchev opposed the instruction, argu-\ning the government had not presented sufficient evidence of\ndeliberate avoidance to justify it. The district court agreed\nwith the government and gave the instruction.\n In its order addressing Tantchev’s post-trial motion for\nnew trial, the district court stated its conclusion that Tantchev\nhad “cut off his normal curiosity” by never looking into the\ncontainers shipped from his warehouse. Specifically,\n“Tantchev deliberately avoided exhibiting normal curiosity\nand safety and liability-related caution as to the contents of\nthe shipping containers in his truck yard, especially for some-\none with years of experience in the transportation industry.”\nIn this appeal, Tantchev continues to argue the government\ndid not present sufficient evidence to support the instruction.\n “We review a district court’s decision to give an ostrich\ninstruction for abuse of discretion, and in doing so we view\nthe evidence in the light most favorable to the government.”\nUnited States v. Pierotti, 777 F.3d 917, 920 (7th Cir. 2015). “An\nostrich instruction is appropriate where (1) a defendant\nclaims to lack guilty knowledge … and (2) the government\npresents evidence from which a jury could conclude that the\ndefendant deliberately avoided the truth.” United States v.\nGarcia, 580 F.3d 528, 537 (7th Cir. 2009). Evidence of deliberate\navoidance “can be placed into two general categories: evi-\ndence of ‘overt physical acts,’ and evidence of ‘purely psycho-\nlogical avoidance, a cutting off of one’s normal curiosity by\nan effort of will.’” United States v. Carrillo, 435 F.3d 767, 780\n\f12 Nos. 18-1200 & 18-1263\n\n(7th Cir. 2006) (quoting United States v. Craig, 178 F.3d 891, 896\n(7th Cir. 1999)).\n The district court concluded Tantchev “cut off” his curios-\nity by not looking in the containers, alluding to the language\nof psychological avoidance. We have found psychological\navoidance where a defendant was faced with proverbial “red\nflags” but did not investigate. See United States v. Pabey, 664\nF.3d 1084, 1093 (7th Cir. 2011); United States v. Leahy, 464 F.3d\n773, 796 (7th Cir. 2006) (“[F]ailure to ask questions that would\ncertainly arise from the circumstances … is evidence that\ncould lead a jury to determine [the defendant] deliberately\navoided learning about the [ ] scam.” (alterations in original)\n(quoting Craig, 178 F.3d at 897–98)). However, we must re-\nmember the instruction is aimed at defendants acting like fa-\nbled ostriches who bury their heads in the sand. We do not, if\nwe may add to the metaphorical menagerie, require every de-\nfendant to act like Curious George. Accordingly, courts must\nbe careful, lest we obliterate the already thin line between\navoidance, which is criminal, and indifference, which “cannot\nbe punished.” See Leahy, 464 F.3d at 796. We must keep in\nmind that “evidence merely supporting a finding of negli-\ngence—that a reasonable person would have been strongly\nsuspicious, or that a defendant should have been aware of\ncriminal knowledge—does not support an inference that a\nparticular defendant was deliberately ignorant.” Carrillo, 435\nF.3d at 782. The necessary willful blindness must surpass\nrecklessness as well. Global-Tech Appliances, Inc. v. SEB S.A.,\n563 U.S. 754, 769 (2011).\n Here, the evidence is very close. Tantchev argues he was\nnever present for the loading of the containers to Mongolia\n\fNos. 18-1200 & 18-1263 13\n\nand he filled out the CBP forms with information his custom-\ners provided. He testified he did not want to look in the con-\ntainers because he did not want liability for damaged goods.\nHe believed if he did not open the containers, any liability for\ndamages would fall on the customers who loaded them. But\nhe testified that he was very safety conscious in his trucking\nbusiness and took great precautions to ensure his shipments\nwere safe. He testified this was because the liability in his\ntrucking business would fall on him, not on his customers.\n The government argues it strains credulity to believe that\na man who owns his own transportation company would al-\nlow complete strangers to load shipping containers to be sent,\nin his name, to a foreign land without checking and making\nsure everything is safely stowed. Tantchev asserts that argu-\nment necessarily leads to the conclusion he had actual\nknowledge—it assumes he looked in the containers and actu-\nally knew the cars were stolen and the manifests were inaccu-\nrate. If that were true, the district court would have erred by\ngiving the ostrich instruction because evidence pointing\nsolely to direct knowledge of criminal activity does not sup-\nport the instruction. See United States v. Tanner, 628 F.3d 890,\n905 (7th Cir. 2010); United States v. Giovannetti, 919 F.2d 1223,\n1228 (7th Cir. 1990) (“[W]hen the facts require the jury to\nmake a ‘binary choice’ between ‘actual knowledge’ and ‘com-\nplete innocence,’ the ostrich instruction should not be\ngiven.”). The government certainly pushed an “actual\nknowledge” narrative, but the evidence does not present only\na “binary choice” between actual knowledge or no\nknowledge. Instead, it can support a finding of both actual\nknowledge and deliberate avoidance. See United States v. Car-\nrillo, 269 F.3d 761, 769 (7th Cir. 2001).\n\f14 Nos. 18-1200 & 18-1263\n\n For instance, the jury could have found Tantchev looked\nin the containers and saw the contents did not match the in-\nformation on the forms he would send to Atlantic Express for\nCBP. That would amount to actual knowledge the forms con-\ntained false information. But the jury could consider that\nknowledge as a “red flag” sufficient to raise questions in\nTantchev’s mind that everything was not above-board. It was\nthen Tantchev’s deliberate avoidance that led to his not hav-\ning actual knowledge the cars were stolen.\n Alternatively, the jury could have believed Tantchev’s tes-\ntimony that he never looked in the containers or verified the\ninformation provided by his customers, but concluded he\nadopted that indifferent attitude out of a desire to avoid con-\nfirming that he was part of a criminal scheme. After all, he\ntestified that he was safety-conscious in his trucking business.\nThe jury was entitled to conclude Tantchev purposely did not\nsubject these containers to the scrutiny he exercised in the\nother part of his business and draw a negative inference from\nthat change in behavior.\n These are not the strongest examples of when an ostrich\ninstruction is appropriate, but we are reviewing the court’s\ndecision to give the instruction for an abuse of discretion, tak-\ning all inferences in the light most favorable to the govern-\nment. In a close case like this one, that standard is dispositive.\nSee United States v. Ramirez, 574 F.3d 869, 881 (7th Cir. 2009)\n(“[I]n cases such as this, we should defer to the district court’s\nexercise of discretion to give the ostrich instruction.”). While\na different court may not have given the ostrich instruction\nunder these circumstances, the district court in this case did\nnot abuse its discretion in doing so.\n\fNos. 18-1200 & 18-1263 15\n\n 2.\n Tantchev’s second allegation of error also attacks a\nknowledge instruction. The district court instructed the jury:\n“If you find that the defendant was in possession of property\nthat recently had been stolen, you may infer that he knew it\nwas stolen.” The instruction tracked our suggested pattern.\nSee Seventh Circuit Pattern Criminal Jury Instruction 4.14.\nCourts have given this instruction, or one like it, “[f]or centu-\nries.” See Barnes v. United States, 412 U.S. 837, 843–44 (1973).\n Tantchev argues the evidence did not support this instruc-\ntion. He maintains he had a legitimate reason to possess the\ncars: he was shipping them for customers. He also notes these\ncars were not “stolen” in the usual sense; that is, they were\nnot hot-wired from a parking deck in the Loop or carjacked.\nBut Tantchev does not dispute the cars at issue in this case\nwere all nevertheless “stolen.” See generally United States v.\nTurley, 352 U.S. 407, 417 (1957) (“‘Stolen’ as used in 18 U.S.C.\n§ 2312 includes all felonious takings of motor vehicles with\nintent to deprive the owner of the rights and benefits of own-\nership, regardless of whether or not the theft constitutes com-\nmon-law larceny.”). And arguments about why Tantchev\npossessed them or when they were stolen are questions for\nthe jury. See United States v. Riso, 405 F.2d 134, 138 (7th Cir.\n1968) (“[W]hether possession is sufficiently recent … is a\nquestion of fact solely for the jury.”).\n Tantchev was in possession of stolen property. It was up\nto the jury to decide whether the surrounding circumstances\nsupported the inference of knowledge. It was not reversible\nerror to give the instruction.\n\f16 Nos. 18-1200 & 18-1263\n\n 3.\n Tantchev’s third allegation of error concerns the district\ncourt’s decision to allow the government to pursue a line of\nquestioning during his cross-examination. We review such\nevidentiary decisions “for abuse of discretion.” United States\nv. Boswell, 772 F.3d 469, 475 (7th Cir. 2014).\n During Tantchev’s direct examination, he and his counsel\nhad the following exchange:\n Q. And other than the three [containers\n named in the indictment], were there any\n problems with any of the rest of your con-\n tainers—\n A. No problem.\n Q. —that were inspected?\n A. No problem.\n On cross-examination the next day, the government\nsought to introduce evidence there were indeed other con-\ntainers that “had problems,” specifically that there were two\nother shipments that also contained stolen cars.5\n Q. … And you told us yesterday, sir,\n that besides these three shipments, there\n were never any other problems, right?\n A. Yes, sir.\n Q. Well, that’s not true is it?\n At this point, defense counsel objected, arguing that was\nnot an accurate characterization of Tantchev’s testimony from\n\n 5 The government did not charge these shipments in the indictment.\n\fNos. 18-1200 & 18-1263 17\n\ndirect. The court overruled the objection, and the questioning\ncontinued:\n Q. In fact, at exactly the same time\n these shipments were seized, there were\n two other [sic] seized also loaded up with\n stolen cars --\n MR. BRINDLEY [Defense counsel]:\n Objection, your Honor.\n BY MR. HOGAN [Prosecutor]:\n Q. -- also from your --\n MR. BRINDLEY: Objection.\n BY MR. HOGAN:\n Q. -- also from your yard?\n THE COURT: Wait. There is an ob-\n jection.\n There then followed a sidebar, after which the court al-\nlowed the government to proceed with the questioning, but\nin a limited manner. The court allowed the government to\ncontradict Tantchev’s testimony but prohibited it from get-\nting into the substance of the “problems” with the containers.\nNonetheless, as cross-examination continued, the prosecutor\nmentioned “stolen cars” two more times. Both times, defense\ncounsel objected and the court intervened before Tantchev\nanswered the question. Tantchev objects to this exchange.\n “It is well-settled that ‘when a criminal defendant elects to\ntestify in his own defense, he puts his credibility in issue and\nexposes himself to cross-examination, including the possibil-\nity that his testimony will be impeached.’” United States v.\n\f18 Nos. 18-1200 & 18-1263\n\nKohli, 847 F.3d 483, 492 (7th Cir. 2017) (quoting Boswell, 772 at\n475). Tantchev argues the government’s questioning was im-\nproper because it did not contradict his earlier testimony from\nhis direct examination.\n The government and the district court both interpreted\nTantchev’s testimony to be that he never had any other prob-\nlems with shipments. Tantchev maintains he did not testify\nthat he never had any other problems with his shipments, but\nonly that he had no problems with his shipments that were\noutstanding at the time CBP caught the containers charged in\nthe indictment.\n We conclude both are reasonable interpretations of\nTantchev’s answer from his direct testimony, which, particu-\nlarly given that Tantchev did not let his attorney finish the\nquestion before answering, is ambiguous. That conclusion re-\nsolves the issue. Presented with two possible interpretations,\nwe will not say the district court abused its discretion by\nchoosing one over the other.\n 4.\n Tantchev’s final allegation of error concerns the prosecu-\ntor’s comments during closing arguments. During the trial,\nevidence came in relating to the operations of the Fifth Third\nBank location from which the wire transfers were sent to Bul-\ngaria. Namely, it was introduced that an account holder had\nto be physically present in the branch to send a wire transfer,\n\fNos. 18-1200 & 18-1263 19\n\nand it was the responsibility of two employees, the branch\nmanager and the “banker,”6 to enforce this policy.\n In the course of questioning one of the bank employees,\nthe government elicited testimony that the banker at a partic-\nular branch Tantchev had used during the relevant period\nhad been fired. However, because of objections from the de-\nfense, the government was not able to introduce the witness’s\ntestimony concerning the firing of that branch’s manager or\nwhy those employees were fired.\n Nevertheless, in his closing argument, the prosecutor said,\n“But you heard from Ms. Sanchez that her supervisors back\nat that time at Fifth Third Bank were both fired for malfea-\nsance.” This prompted an objection from defense counsel,\nwho remarked that the reason the supervisors were fired had\nbeen “stricken as hearsay.” The district court then gave the\njury the following admonition: “Ladies and gentlemen, if I\nstruck something from the record, I will tell you now and tell\nyou, again, when I instruct you that you should not consider\nit at all. You should disregard it.” In the final instructions to\nthe jury before it began deliberations, the court also instructed\nthat statements by attorneys are not evidence.\n Tantchev argues the prosecutor’s misstatement of the evi-\ndence prejudiced him to the point of requiring a new trial.\nOur analysis proceeds in two phases: “[W]e first look at the\ndisputed remarks in isolation to determine if they are proper.\nIf they are improper, we then consider the remarks in light of\nthe entire record to determine if the defendant was deprived\n\n 6A witness testified the banker “sits at the desk greeting customers,\ntaking care of them for opening a checking account, savings account,\nCDs, auto loans.”\n\f20 Nos. 18-1200 & 18-1263\n\nof a fair trial.” United States v. Cotnam, 88 F.3d 487, 498 (7th\nCir. 1996). Here, the statement is clearly improper: the prose-\ncutor referenced facts not in evidence. So, we must ask\nwhether that impropriety deprived Tantchev of a fair trial.\n We consider six factors: “(1) whether the prosecutor mis-\nstated evidence; (2) whether the statements implicate a spe-\ncific right of the defendant; (3) whether the defense invited\nthe prosecutor’s remarks; (4) the trial court’s instructions; (5)\nthe weight of the evidence against the defendant; and (6) the\ndefendant’s opportunity to rebut.” United States v. Richards,\n719 F.3d 746, 766 (7th Cir. 2013). The fifth factor is “[t]he most\nimportant,” because “[s]trong evidence of guilt eliminates\nany lingering doubt that the prosecutor’s remarks unfairly\nprejudiced the jury’s deliberations.” Rodriguez v. Peters, 63\nF.3d 546, 558 (7th Cir. 1995) (quoting United States v. Gonzalez,\n933 F.2d 417, 431–32 (7th Cir. 1991)).\n Some of these factors do lean in favor of Tantchev. The\nprosecutor clearly misstated the evidence, and there is no in-\ndication Tantchev invited the remark in any way. But most\nfactors lean against him. The statements did not implicate a\nspecific right. The district court gave a curative instruction\nimmediately after the prosecutor made the remark and in-\nstructed the jury before deliberations that statements by attor-\nneys are not evidence. Tantchev had an opportunity to rebut,\nas his counsel made his closing argument after the prosecutor\nmade the offending statement. Finally, and most importantly,\nthe weight of the evidence is heavily on the side of the gov-\nernment. The prosecutor’s comment went to the structuring\ncharge, the implication being Tantchev was able to perpetrate\nhis financial scheme with the help of corrupt bank employees.\nThat conclusion was not critical to the case. The government\n\fNos. 18-1200 & 18-1263 21\n\npresented evidence of nearly 100 separate deposits totaling al-\nmost $575,000, all close in time, yet no single deposit was ever\nmore than $10,000. These deposits were then quickly followed\nby large wire transfers to bank accounts in Bulgaria,\nTantchev’s native country. And the government showed\nsome of the named account holders were not even in the\nUnited States at the time. In the face of all this evidence, it is\nnot as if the bank employee’s bad acts were the key evidence\nTantchev was making his deposits with the intent to avoid the\nreporting requirements. The prosecutor’s comment was im-\nproper, but it did not deprive Tantchev of a fair trial.\n III.\n This case contains several close calls, and Chogsom and\nTantchev raise compelling points. But our review requires\ndeference to the district court and the jury, both of which have\nseen the witnesses and heard the testimony, and thus have a\ngreater appreciation of what transpired during those six days\nin March 2017. With that deference in mind, and for the rea-\nsons set forth above, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369988/", "author_raw": "Daniel Anthony Manion"}]}	WOOD	MANION	ROVNER	1	{"WOOD": ", Chief", "MANION": ", Cir cuit", "ROVNER": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592735/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,737	Todd A. D'ANTONI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.	Todd D'Antoni v. United States	2019-02-21	18-1358	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Barrett, Scudder", "parties": "", "opinions": [{"author": "Joel Martin Flaum", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1358\nTODD A. D’ANTONI,\n Petitioner-Appellant,\n v.\n\nUNITED STATES OF AMERICA,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 16-cv-00398 — William M. Conley, Judge.\n ____________________\n\n ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 21, 2019\n ____________________\n\n Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.\n FLAUM, Circuit Judge. Todd D’Antoni received an en-\nhanced sentence under the career-oﬀender provision of the\n1990 United States Sentencing Guidelines, based on a prior\nfelony drug conviction and a prior felony “crime of violence”\nconviction. See U.S.S.G. § 4B1.1 (1990). Relevant here, the pro-\nvision’s “crime of violence” deﬁnition included a residual\nclause, encompassing any felony “involv[ing] conduct that\n\f2 No. 18-1358\n\npresent[ed] a serious potential risk of physical injury to an-\nother.” Id. § 4B1.2(1)(ii). The Guidelines were mandatory as\napplied to D’Antoni because he was sentenced well before the\nSupreme Court’s decision in United States v. Booker, 543 U.S.\n220 (2005), which held the Guidelines must be advisory to\ncomply with the Constitution.\n Following Johnson v. United States, 135 S. Ct. 2551 (2015), in\nwhich the Supreme Court held the identical Armed Career\nCriminal Act (“ACCA”) residual clause “violent felony” deﬁ-\nnition was unconstitutionally vague, D’Antoni brought a\n28 U.S.C. § 2255 motion seeking resentencing. He argued\nJohnson applied to make § 4B1.2’s residual clause “crime of\nviolence” deﬁnition unconstitutionally vague, and he claimed\nthe sentencing court considered one of his predicate convic-\ntions—conspiracy to kill a government witness—a crime of\nviolence only under the residual clause. Although in Beckles v.\nUnited States, 137 S. Ct. 886 (2017), the Supreme Court held\nthat Johnson did not extend to the post-Booker advisory Guide-\nlines residual clause, in Cross v. United States, 892 F.3d 288 (7th\nCir. 2018), we held that Johnson did render the pre-Booker man-\ndatory Guidelines residual clause unconstitutionally vague.\n At issue in this case is whether D’Antoni’s sentence should\nnevertheless be aﬃrmed because “conspiracy,” “murder,”\nand “manslaughter” were listed as crimes of violence in the\napplication notes to the 1990 version of § 4B1.2. Our unani-\nmous en banc decision in United States v. Rollins, 836 F.3d 737\n(7th Cir. 2016), answers this question: The application notes’\nlist of qualifying crimes is valid only as an interpretation of\n§ 4B1.2’s residual clause, and because Cross invalidated that\nresidual clause, the application notes no longer have legal\nforce. Accordingly, D’Antoni is entitled to resentencing.\n\fNo. 18-1358 3\n\n I. Background\n A. Convictions and Sentences\n In 1987, the government charged D’Antoni with selling co-\ncaine to a juvenile resulting in her death, in violation of\n21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 845(a). While in jail\npending charges, D’Antoni oﬀered another inmate $4,000 and\ntwo ounces of cocaine to kill a government witness related to\nthe cocaine charge. The inmate agreed, and D’Antoni gave\nhim instructions to contact D’Antoni’s brother and a code-\nfendant. However, instead of following D’Antoni’s instruc-\ntions, the inmate went to the police and agreed to cooperate.\nThe government then charged D’Antoni with conspiracy to\nkill a government witness, in violation of 18 U.S.C. § 371.\n D’Antoni simultaneously pleaded guilty to both the co-\ncaine distribution charge and the conspiracy charge, and in\nDecember 1987, he was sentenced in both cases. The district\ncourt imposed a 35-year term of imprisonment on the drug\ncharge and a consecutive 5-year term of imprisonment on the\nconspiracy charge. We aﬃrmed those convictions and sen-\ntences. United States v. D’Antoni, 856 F.2d 975 (7th Cir. 1988).\n In October 1990, the government charged D’Antoni with\nconspiracy to distribute LSD while in jail, in violation of\n21 U.S.C. § 846. A jury convicted D’Antoni in February 1991.\nPursuant to the drug-quantity Guideline, U.S.S.G. § 2D1.1\n(1990), the presentence report calculated a mandatory Guide-\nlines range of 51–63 months’ imprisonment.\n The government objected. It argued D’Antoni should re-\nceive an enhanced sentence under the Guidelines career-of-\nfender provision. The Guidelines classiﬁed a defendant as a\ncareer oﬀender if: (1) he is at least eighteen years old when he\n\f4 No. 18-1358\n\ncommitted the instant oﬀense; (2) the “instant oﬀense of con-\nviction is a felony that is either a crime of violence or a con-\ntrolled substance oﬀense”; and (3) he “has at least two prior\nfelony convictions of either a crime of violence or a controlled\nsubstance oﬀense.” Id. § 4B1.1. The 1990 Guidelines deﬁned\n“crime of violence” as follows:\n (1) The term “crime of violence” means any of-\n fense under federal or state law punishable\n by imprisonment for a term exceeding one\n year that—\n (i) has as an element the use, attempted use,\n or threatened use of physical force\n against the person of another, or\n (ii) is burglary of a dwelling, arson, or extor-\n tion, involves use of explosives, or other-\n wise involves conduct that presents a serious\n potential risk of physical injury to another.\nId. § 4B1.2(1) (emphasis added). Section 4B1.2(1)(i) is referred\nto as the “elements clause,” the nonemphasized text in\n§ 4B1.2(1)(ii) is referred to as the “enumerated oﬀenses\nclause,” and the emphasized text in § 4B1.2(1)(ii) is referred to\nas the “residual clause.” Also relevant are application notes 1\nand 2 to the 1990 version of § 4B1.2, which state:\n 1.The terms “crime of violence” and “controlled\n substance oﬀense” include the oﬀenses of aid-\n ing and abetting, conspiring, and attempting\n to commit such oﬀenses.\n 2.“Crime of violence” includes murder, man-\n slaughter, [and other oﬀenses].\n\fNo. 18-1358 5\n\nId. § 4B1.2 cmt. nn.1, 2. 1 The government argued D’Antoni\nwas a career oﬀender because his cocaine conviction was a\ncontrolled substance oﬀense and his conspiracy to kill a gov-\nernment witness conviction was a crime of violence.\n The district court agreed. Pursuant to § 4B1.1, it calculated\nD’Antoni’s mandatory Guidelines range as 262–327 months’\nimprisonment. The court imposed a 264-month sentence, to\nbe served consecutively with the prior 40-year sentence. In de-\nciding that the conspiracy to kill a government witness con-\nviction was a “crime of violence,” the court did not explain its\nreasoning; it did not specify whether it relied on § 4B1.2’s re-\nsidual clause, elements clause, commentary, or some combi-\nnation of those parts of the provision. D’Antoni appealed,\ncontending the court erred in classifying him as a career of-\nfender because his two prior convictions were “related” and\nshould not have been counted separately. We disagreed and\naﬃrmed the sentence. United States v. D’Antoni, 980 F.2d 733,\n1992 WL 357229 (7th Cir. Dec. 3, 1992) (unpublished).\n B. First 28 U.S.C. § 2255 Motion\n On October 26, 2010, D’Antoni filed a § 2255 motion to va-\ncate his sentence, arguing his career-offender sentence was\ndetermined without prior notice of the underlying convic-\ntions, in violation of 21 U.S.C. § 851. The district court denied\n\n\n\n 1 Section 4B1.2 has been subsequently amended. Until 2016, there\nwere no substantive changes, but the provision was renumbered (e.g.,\n§ 4B1.2(1)(ii) was relabeled § 4B1.2(a)(2)) and the contents of 1990 applica-\ntion notes 1 and 2 were combined into application note 1. In 2016, the Sen-\ntencing Commission removed the residual clause and added a speciﬁc list\nof crimes.\n\f6 No. 18-1358\n\nthe motion as untimely and denied a certificate of appealabil-\nity. We also denied a certificate of appealability.\n C. Successive 28 U.S.C. § 2255 Motion\n On June 26, 2015, the Supreme Court held the ACCA re-\nsidual clause deﬁnition of “violent felony,” 18 U.S.C.\n§ 924(e)(2)(B)(ii)—which is identical to the Guidelines resid-\nual clause “crime of violence” deﬁnition—unconstitutionally\nvague. Johnson, 135 S. Ct. at 2556–60. Less than a year later, the\nCourt held that “Johnson announced a substantive rule that\nhas retroactive eﬀect in cases on collateral review.” Welch v.\nUnited States, 136 S. Ct. 1257, 1268 (2016). In light of Johnson\nand Welch, we granted D’Antoni permission to ﬁle a succes-\nsive § 2255 motion. He maintained his career-oﬀender sen-\ntence was invalid because: (1) Johnson applied to invalidate\n§ 4B1.2’s residual clause as unconstitutionally vague; and\n(2) his prior conviction for conspiracy to kill a government\nwitness could only be considered a crime of violence under\nthe residual clause and thus no longer qualiﬁed as a predicate\noﬀense. The district court stayed the proceedings until the Su-\npreme Court decided Beckles on March 6, 2017. In Beckles, the\nCourt held that the advisory Sentencing Guidelines are not\nsubject to vagueness challenges, and therefore, at least the\npost-Booker advisory version of § 4B1.2(a)’s residual clause is\nnot void for vagueness. 137 S. Ct. at 893–95.\n Relying on Beckles, the government argued Johnson did not\napply retroactively to render the residual clause of the pre-\nBooker mandatory Guidelines unconstitutionally vague. Alter-\nnatively, the government suggested that even if Johnson retro-\nactively voided the mandatory Guidelines residual clause,\nD’Antoni’s prior conviction for conspiring to kill a govern-\nment witness still qualiﬁed as a predicate oﬀense because\n\fNo. 18-1358 7\n\n§ 4B1.2’s application notes listed conspiracy, murder, and\nmanslaughter as crimes of violence.\n On January 17, 2018, the district court denied D’Antoni’s\npetition. It concluded that, based on Beckles, D’Antoni could\nnot make a vagueness challenge to the pre-Booker mandatory\nGuidelines, and therefore, his prior conspiracy conviction re-\nmained a crime of violence pursuant to the residual clause.\nHowever, the court granted a certiﬁcate of appealability.\n D. This Appeal\n D’Antoni timely ﬁled a notice of appeal, which we stayed\npending our decision in Cross. In Cross, we held that “Beckles\napplies only to advisory guidelines, not to mandatory sen-\ntencing rules,” and therefore, “the guidelines residual clause\nis unconstitutionally vague insofar as it determined manda-\ntory sentencing ranges for pre-Booker defendants.” 892 F.3d at\n291; see also id. at 306 (“[U]nlike the advisory guidelines, the\nmandatory guidelines implicated the ‘twin concerns’ of the\nvagueness doctrine. The mandatory guidelines are thus sub-\nject to attack on vagueness grounds.” (citation omitted)). We\nalso held that Johnson applies retroactively to § 2255 motions\nchallenging the constitutionality of the mandatory Guidelines\nresidual clause on collateral review. Id. at 306–07.\n In light of Cross, on September 13, 2018, the government\nﬁled a statement of position. It emphasized that Cross did not\n“resolve the government’s argument … that D’Antoni re-\nmains a career oﬀender even after Johnson, based on the valid-\nity of his conspiracy conviction as a listed oﬀense” in § 4B1.2’s\ncommentary. Additionally, the government pointed out that\n\f8 No. 18-1358\n\n“Cross did not have occasion to address the speciﬁc retroac-\ntivity requirement for successive § 2255 motions like D’An-\ntoni’s, which are governed by 28 U.S.C. § 2255(h)(2).”\n II. Discussion\n Because this appeal asks us to resolve a question of law,\nwe review the district court’s denial of D’Antoni’s § 2255 mo-\ntion de novo. Delatorre v. United States, 847 F.3d 837, 843 (7th\nCir. 2017).\n The government emphasizes that the sentencing court did\nnot mention the residual clause when it determined the con-\nspiracy to kill a government witness conviction qualiﬁed as a\npredicate crime of violence for purposes of considering D’An-\ntoni a career oﬀender. It asks us to deny relief because, in its\nview, there is nothing in the record to show that D’Antoni was\nactually sentenced under the residual clause, as opposed to\nunder the elements clause or § 4B1.2’s commentary. It points\nout that the application notes list conspiracy, murder, and\nmanslaughter as examples of “crime[s] of violence,” and\ntherefore asserts that “as applied to D’Antoni, the residual\nclause cannot be unconstitutionally vague.” We disagree.\nGiven our holdings in Cross and Rollins, we must grant relief. 2\n\n\n 2 The government also contends Cross does not apply because Cross\n“involved two initial § 2255 petitioners,” while D’Antoni is a successive\npetitioner. It points out that because this is a successive petition, D’Antoni\ncan get relief only if the Supreme Court itself makes a previously unavail-\nable new rule of constitutional law retroactive to cases on collateral re-\nview. See 28 U.S.C. § 2255(h)(2). The government posits that no Supreme\nCourt opinion has addressed the constitutionality of the residual clause in\nthe pre-Booker mandatory Guidelines, so D’Antoni cannot beneﬁt from\nCross. However, as the government concedes, “the broadly worded rea-\nsoning in Cross precludes this particular argument.” See Cross, 892 F.3d at\n\fNo. 18-1358 9\n\n The government insists that “the relevant commentary did\nnot purport to interpret the former residual clause,” but in-\nstead “sets out a deﬁnition of ‘crime of violence’ in addition\nto the deﬁnition in Section 4B1.2’s main text.” It thus claims\nthat “the oﬀenses listed in the application notes … qualify as\ncrimes of violence without determining whether each oﬀense\nsatisﬁed a discrete portion of USSG § 4B1.2(1)’s deﬁnition.”\nThe government is wrong. Such a view of Guidelines com-\nmentary is expressly foreclosed by the Supreme Court’s deci-\nsion in Stinson v. United States, 508 U.S. 36 (1993), and our in-\nterpretation of Stinson in Rollins.\n In Rollins, we considered “whether [a] conviction counts\nas a predicate crime of violence based on [an] application note\nalone.” 836 F.3d at 742. We began by explaining that there are\n“‘three varieties’ of text in the Guidelines”: (1) the “‘guideline\nprovision[s] [themselves],’” which “‘are the equivalent of leg-\nislative rules adopted by federal agencies’” and must be “sub-\nmitted to Congress” for review and approval; (2) “the Sen-\ntencing Commission’s policy statements, which have much\nthe same eﬀect as the Guidelines themselves”; and (3) “the\nCommission’s commentary,” which “interpret[s] the Guide-\nlines and explain[s] how they are to be applied.” Id. (quoting\nand citing Stinson, 508 U.S. at 41–42, 45). We thus reasoned\nthat “application notes are interpretations of, not additions to,\nthe Guidelines themselves,” and “an application note has no\nindependent force.” Id. Consequently, “the list of qualifying\ncrimes in application note 1 to § 4B1.2 is enforceable only as\n\n\n\n307 (holding that we treat Johnson as “retroactive[] when applied to the\nmandatory guidelines”). Thus, the government admits that it “asserts the\nargument solely to preserve it for any potential further review.”\n\f10 No. 18-1358\n\nan interpretation of the deﬁnition of the term ‘crime of vio-\nlence’ in the guideline itself,” and “[m]ore speciﬁcally,” as an\ninterpretation of § 4B1.2’s “residual clause.” Id.\n The government next maintains that even if the commen-\ntary was “intended to interpret the former residual clause,\n[its] terms still defeat a vagueness challenge” because it “spe-\nciﬁcally identiﬁes oﬀenses that qualify as crimes of violence.”\nTherefore, according to the government, D’Antoni was not\n“deprived of fair notice or subjected to arbitrary enforcement\nby the straightforward application of the commentary’s ex-\npress terms.” Put another way, the government contends that\n“[a]pplying the clearly stated oﬀenses in the commentary …\nproduces none of the constitutional concerns that the vague-\nness doctrine is designed to prevent.”\n Cross and Rollins together preclude this approach. In Cross,\nwe excised the residual clause from the pre-Booker Guidelines\nas unconstitutionally vague. 892 F.3d at 306. And in Rollins,\nwe explained that Guidelines commentary “has no legal force\nstanding alone.” 836 F.3d at 742. Thus, once “the residual\nclause drops out,” the application note’s list of crimes is no\nlonger interpreting any part of § 4B1.2’s deﬁnition of “crime\nof violence.” Id. It is therefore “in eﬀect adding to the deﬁni-\ntion[,] [a]nd that’s necessarily inconsistent with the text of the\nguideline itself.” Id.; see also United States v. Soto-Rivera, 811\nF.3d 53, 60 (1st Cir. 2016) (“There is simply no mechanism or\ntextual hook in the Guideline that allows us to import oﬀenses\nnot speciﬁcally listed therein into § 4B1.2(a)’s deﬁnition of\n‘crime of violence.’ With no such path available …, doing so\nwould be inconsistent with the text of the Guideline.”); United\nStates v. Bell, 840 F.3d 963, 968 (8th Cir. 2016) (same), overruled\n\fNo. 18-1358 11\n\non other grounds by United States v. Swopes, 886 F.3d 668 (8th\nCir. 2018) (en banc). 3\n The government seeks to get around Rollins by arguing\nthat, after Beckles, we are no longer bound by its holding. It\n\n 3 In United States v. Miller, 868 F.3d 1182 (10th Cir. 2017), the Tenth\nCircuit adopted the government’s view. That court declined to address the\nquestion we answered in Cross—whether the pre-Booker Guidelines are\namenable to vagueness challenges—instead holding that regardless, the\ndefendant could not “mount a vagueness challenge to his enhanced sen-\ntence, because the enumeration of [his prior conviction] in the commen-\ntary to the career-oﬀender guideline suﬃciently narrows the application\nof the residual clause to [the defendant’s] conduct.” Id. at 1187. The court\nexplained that because the defendant’s “conduct was clearly proscribed,\nhe [could] not complain he was denied fair notice of the possibility of en-\nhanced punishment,” and “there was no risk of arbitrary enforcement by\njudges.” Id. at 1189. Concurring in Beckles, Justices Ginsburg and So-\ntomayor also advocated for this method of analyzing vagueness chal-\nlenges to the Guidelines. See Beckles, 137 S. Ct. at 898 (Ginsburg, J., concur-\nring) (“[B]ecause [the defendant’s] conduct was ‘clearly proscribed,’ he …\n‘cannot complain of the vagueness of the [guideline] as applied to the con-\nduct of others.’” (last alteration in original) (quoting Holder v. Humanitarian\nLaw Project, 561 U.S. 1, 18–19 (2010))); id. (Sotomayor, J., concurring)\n(“[T]he commentary under which [the defendant] was sentenced was not\nunconstitutionally vague.”). The Tenth Circuit asserts that we erred in Rol-\nlins by “ﬁrst excis[ing] the residual clause and then conclud[ing] the com-\nmentary listing [the prior conviction] was not an interpretation of the ele-\nments or enumerated oﬀenses clauses.” Miller, 868 F.3d at 1188 n.4. In the\nTenth Circuit’s view, our path “confuses the ‘normal order of operations’\nin analyzing vagueness challenges,” as “the Supreme Court ‘has routinely\nrejected, in a variety of contexts, vagueness claims where a clarifying con-\nstruction rendered an otherwise enigmatic provision clear as applied to\nthe challenger.’” Id. at 1188 (quoting Beckles, 137 S. Ct. at 897 n.* (Ginsburg,\nJ., concurring)). The government asks us to rely on the Tenth Circuit’s de-\ncision in Miller (and Justices Ginsburg’s and Sotomayor’s concurrences in\nBeckles) to aﬃrm D’Antoni’s sentence. We cannot do so, however, because\nCross and Rollins foreclose this approach.\n\f12 No. 18-1358\n\nsuggests we should instead rely on our 2012 decision in United\nStates v. Raupp, in which we held that conspiracy to commit\nrobbery is a “crime of violence” because “conspiracy” is listed\nin § 4B1.2’s commentary, and “the text of § 4B1.2(a) does not\ntell us, one way or another, whether inchoate oﬀenses are in-\ncluded or excluded.” 677 F.3d 756, 759 (7th Cir. 2012).\n To be sure, we decided Rollins in conjunction with United\nStates v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en banc), where\nwe held that after Johnson, the post-Booker advisory Guide-\nlines residual clause is unconstitutionally vague. Id. at 721.\nAnd Beckles expressly abrogated Hurlburt. Indeed, while we\noverruled Raupp in Rollins, see 836 F.3d at 743, in Hill v. United\nStates, we commented that Beckles’s “[e]limination of vague-\nness challenges to the Guidelines undermines Rollins as well\nas Hurlburt, so we treat Raupp … as having unimpaired prec-\nedential force.” 877 F.3d 717, 719 (7th Cir. 2017).\n As D’Antoni aptly observes, however, “Beckles does not\ntouch Rollins’[s] holding about the role of Guidelines com-\nmentary.” The government too concedes that “Beckles did not\nreach the commentary issue.” And moreover, our statement\nin Hill is not controlling because it suggested that Beckles\nbroadly eliminated all vagueness challenges. But we decided\nHill before Cross, and in Cross, we revived vagueness chal-\nlenges—like the one here—to the pre-Booker residual clause.\n892 F.3d at 306. While we recognize other circuits have held\nto the contrary and concluded, post-Beckles, that post-convic-\ntion relief is not available to defendants sentenced under the\n\fNo. 18-1358 13\n\nmandatory Guidelines residual clause, 4 we are, of course,\nbound by Cross.\n In short, after Cross, for cases involving defendants sen-\ntenced pursuant to the pre-Booker mandatory Guidelines, we\nface the same situation we faced in Rollins. In such instances,\n“our holding in Raupp has lost its tether to the text of the ca-\nreer-oﬀender guideline,” and “Raupp’s premise”—“that the\napplication note’s list of qualifying crimes is a valid interpre-\ntation of the guideline’s residual clause”—“has been undone\nby intervening legal developments.” Rollins, 836 F.3d at 739,\n743. Rather, “because the residual clause in § 4B1.2[(1)(ii)\n(1990)] is unconstitutional, the application note’s list of quali-\nfying crimes is inoperable and cannot be the basis for apply-\ning the career-oﬀender enhancement.” See id. at 742.\n Finally, the government argues the sentencing court may\nhave considered D’Antoni’s conspiracy to kill a government\nwitness conviction a crime of violence under § 4B1.2’s ele-\nments clause because the object of the conspiracy ﬁts within\nthat clause. Whether a crime ﬁts within the elements clause\n“begins and ends with the elements of the crime.” Flores v.\nAshcroft, 350 F.3d 666, 671 (7th Cir. 2003) (discussing the iden-\ntical elements clause in 18 U.S.C. § 16(a)). D’Antoni was con-\nvicted of conspiracy under 18 U.S.C. § 371, which required the\n\n\n 4 See United States v. Pullen, 913 F.3d 1270, 1283–84 (10th Cir. 2019);\nUnited States v. Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018); Robinson v.\nUnited States, 736 F. App’x 599, 599 (6th Cir. 2018) (citing Raybon v. United\nStates, 867 F.3d 625, 630 (6th Cir. 2017)); Russo v. United States, 902 F.3d 880,\n883–84 (8th Cir. 2018); United States v. Green, 898 F.3d 315, 321–23 (3d Cir.\n2018); Upshaw v. United States, 739 F. App’x 539, 541 (11th Cir. 2018) (per\ncuriam) (citing In re Griﬃn, 823 F.3d 1350, 1354–56 (11th Cir. 2016) (per\ncuriam)); United States v. Brown, 868 F.3d 297, 301–03 (4th Cir. 2017).\n\f14 No. 18-1358\n\ngovernment to prove three elements: “(1) an agreement to ac-\ncomplish an illegal objective against the United States; (2) one\nor more overt acts in furtherance of the illegal purpose; and\n(3) the intent to commit the substantive oﬀense.” United States\nv. Hills, 618 F.3d 619, 637 (7th Cir. 2010) (quoting United States\nv. Cyprian, 23 F.3d 1189, 1201 (7th Cir. 1994)). Critically, none\nof those elements required the government to prove “the use,\nattempted, use, or threatened use of physical force.” U.S.S.G.\n§ 4B1.2(1)(i) (1990); cf. Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir.\n1997) (“An oﬀense such as conspiracy [does not have] the use\nof physical force as an element … .”). Thus, § 371 conspiracy\nis not a “crime of violence” as deﬁned by the elements clause. 5\n In sum, because D’Antoni’s conspiracy conviction did not\ninclude force as an element, its only possible connection to\n§ 4B1.2’s deﬁnition of “crime of violence” was the residual\nclause. But as noted above, Cross excised the residual clause\nfrom the pre-Booker mandatory Guidelines, and without the\nresidual clause, the application notes have no legal force.\nD’Antoni is therefore entitled to resentencing.\n\n\n\n\n 5We would reach a diﬀerent conclusion if the government had to\nprove the elements of the underlying oﬀense. See United States v. Gloss, 661\nF.3d 317, 319 (6th Cir. 2011) (“If a conviction for … conspiracy requires the\ngovernment to prove the elements of the underlying violent felony, such\na conviction will itself qualify as a violent felony under the [elements\nclause of the ACCA]. If, by contrast, the government may obtain a convic-\ntion by proving only that the defendant agreed to participate in violent\ncrime or solicited it—and not that some person committed or attempted\nto commit the underlying oﬀense—conspiracy … tends to be outside the\nreach of the [elements clause], and generally will be deemed a violent fel-\nony only if it qualiﬁes under the residual clause.” (citations omitted)).\n\fNo. 18-1358 15\n\n III. Conclusion\n For the foregoing reasons, we REVERSE the judgment of the\ndistrict court and REMAND with instructions to grant D’An-\ntoni’s successive § 2255 motion and for resentencing in ac-\ncordance with this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369990/", "author_raw": "Joel Martin Flaum"}]}	FLAUM	BARRETT	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592737/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,843		United States v. Nikolay Tantchev	2019-02-21	18-1200	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and MANION and ROVNER, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 18-1200 & 18-1263\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nNIKOLAY TANTCHEV and\nBATMAGNAI CHOGSOM,\n Defendants-Appellants.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-cr-174 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED NOVEMBER 1, 2018 — DECIDED FEBRUARY 21, 2019\n ____________________\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Cir-\ncuit Judges.\n MANION, Circuit Judge. After a six-day trial involving\ntwenty-nine witnesses, a federal jury convicted Nikolay\nTantchev of exporting and attempting to export stolen cars,\nsubmitting false documents to customs officials, and structur-\ning financial transactions to avoid federal reporting require-\nments. That same jury acquitted Tantchev’s co-defendant,\n\f2 Nos. 18-1200 & 18-1263\n\nBatmagnai Chogsom, of charges related to the stolen cars and\nfalse documents, but it convicted Chogsom of making a false\nstatement to an IRS agent. The district court sentenced\nTantchev to 40 months’ imprisonment and Chogsom to 3\nyears’ probation.\n Both defendants appeal their convictions. Tantchev al-\nleges several errors by the district court at trial, and Chogsom\nchallenges the sufficiency of the evidence against him. We af-\nfirm the convictions.\n I.\n Tantchev, a native of Bulgaria, owned a trucking business\nthat operated out of a warehouse in Chicago. Chogsom, a\nMongolian immigrant, worked for Tantchev.\n In 2008, Tantchev began shipping containers of goods to\nBulgaria using a company called Atlantic Express. Seeing an\nopportunity, Tantchev started a small side-business arrang-\ning shipping containers from Atlantic Express for others.\nTantchev would order containers from Atlantic Express at a\ndiscount and charge a premium for acting as a middle man.\nThough he had the containers delivered to his Chicago ware-\nhouse, this was a separate operation from his normal trucking\nbusiness. Through Chogsom, members of Chicago’s Mongo-\nlian community began coming to Tantchev to set up ship-\nments to Mongolia. These shipments often included vehicles.\n According to Tantchev, his involvement with these inter-\nnational shipments was minimal. A customer looking to ship\nsomething would approach Tantchev or Chogsom. Tantchev\nwould then order a shipping container from Atlantic Express,\nwhich would drop it off at Tantchev’s warehouse. The cus-\ntomer would come to the warehouse and load the container\n\fNos. 18-1200 & 18-1263 3\n\nhimself, and the container would be sealed. Atlantic Express\nwould then pick up the loaded container from the warehouse.\nTantchev would fill out the appropriate papers based on what\nhis customers told him and send the papers and any other\ndocuments to Atlantic Express to forward to United States\nCustoms and Border Protection (CBP).\n In the early part of 2011, CBP discovered three of\nTantchev’s shipments to Mongolia contained stolen cars.1 Ad-\nditionally, the documentation Tantchev had submitted did\nnot accurately reflect the contents of the containers. One con-\ntainer was supposed to hold a Honda, but instead contained\na stolen BMW. Two others were declared as containing min-\ning machinery, but they actually contained a stolen Mercedes\nand two stolen Lexuses.\n Also in early 2011, Tantchev began making large deposits\ninto seven bank accounts at Fifth Third Bank and Chase Bank.\nTwo of the accounts were in Tantchev’s name, one belonged\nto his father, and the other four were in the names of Kosa\nBonev, Otgonbayar Jigmidsambuu, Jianmei Li, and Yu Li, re-\nspectively. No single deposit was ever over $10,000, the max-\nimum amount that does not trigger a federal reporting re-\nquirement. Despite no single deposit ever breaching that\n$10,000 ceiling—which Tantchev knew to be the reporting\nthreshold—Tantchev managed to deposit $574,965 into those\naccounts in less than two months, from March 14 to May 4,\n2011. Then, despite the fact that some of the account holders\n\n 1The parties do not dispute that the cars were stolen. All four cars\ncharged in the indictment were subject to liens. When authorities re-\nported to the creditors that the cars had been discovered on shipping\ncontainers bound for Mongolia, the creditors reported them stolen and\nrecovered them.\n\f4 Nos. 18-1200 & 18-1263\n\nwere not even in the United States at the time, from March 16\nto May 5, 2011, wire transfers were sent from the accounts of\nBonev, Jigmidsambuu, Jianmei Li, and Yu Li in the total\namount of $552,090 to twenty-two different accounts located\nin Sofia, Bulgaria.2 This activity prompted Fifth Third Bank to\nreport Tantchev for suspected criminal activity.\n The IRS began an investigation after receiving the report\nfrom Fifth Third Bank. As part of that investigation, Agent Ja-\nson Gibson set out to find Jianmei Li, the listed owner of one\nof the Fifth Third bank accounts. Through the Illinois Secre-\ntary of State, Agent Gibson acquired the information and a\nphoto from an Illinois identification card in that name. After\nthe address on the ID proved to be a bust, he and another\nagent went to the address connected with the bank account.\nAt that address, he spoke with Gerelt Dashdorj, the nephew\nof defendant Chogsom. After talking with Dashdorj and\nshowing him the picture from the ID, Agent Gibson believed\nJianmei Li was Burmaa Chogsom, defendant Chogsom’s sis-\nter.\n Agent Gibson then went to interview defendant Chogsom.\nHe showed Chogsom the photo from the Illinois ID and asked\n\n 2 From whom all this money came and whether they are trying to get\nit back are among the hollow spots in this case—questions the facts raise\nin questioning minds but the parties do not litigate or answer. The gov-\nernment presented evidence at trial suggesting Tantchev received\n$750,000 in wire transfers from Mongolia (including several transfers la-\nbeled “for car”), but it did not have direct evidence that was the source\nof the full $574,965. Neither is there any discussion in the briefs about\nwhether these Mongolian buyers were unwittingly purchasing stolen\ncars or were themselves part of the criminal scheme. While these ques-\ntions are ultimately immaterial because the facts we have are enough to\nresolve this appeal, there is doubtless more to the story.\n\fNos. 18-1200 & 18-1263 5\n\nhim if he recognized the woman. Chogsom replied it was\n“Jianmei Li,” a woman with whom he used to work. Agent\nGibson asked Chogsom if he had a sister named Burmaa.\nChogsom answered he did, and that she was in Mongolia.\nAgent Gibson never asked if the woman in the photo was\nChogsom’s sister Burmaa.\n As it turns out, the woman in the photo was indeed\nBurmaa Chogsom. She had acquired the Illinois ID in the\nname of Jianmei Li using a fraudulent Chinese passport and\na Social Security number originally issued to a worker in Sai-\npan. She had returned to Mongolia in 2010.\n A federal grand jury issued an indictment against\nTantchev and Chogsom on March 16, 2016. The indictment\ncharged Tantchev with three counts of exporting and at-\ntempting to export stolen vehicles, two counts of submitting\nfalse writings to CBP, and one count of structuring deposits\nto avoid federal reporting requirements. The indictment\ncharged Chogsom with two counts relating to the export of\nstolen vehicles, one count of submitting false writings, and\none count of lying to an IRS agent based on his identifying the\nwoman in the photo as Jianmei Li rather than as Burmaa\nChogsom.\n The case proceeded to a jury trial. The jury heard testi-\nmony from twenty-seven witnesses for the government and\nfrom both defendants. The jury convicted Tantchev of all\ncharges leveled against him. It convicted Chogsom of lying to\nthe IRS agents and acquitted him of the remaining charges.\nBoth defendants made post-trial motions for judgment of ac-\nquittal, and Tantchev moved for a new trial. The district court\ndenied all three motions. The defendants appeal.\n\f6 Nos. 18-1200 & 18-1263\n\n II.\n Tantchev appeals the denial of his motion for a new trial,\nalleging multiple errors. Chogsom appeals the denial of his\nmotion for judgment of acquittal. As these two defendants\npresent discrete issues, we will address them separately.\n A.\n We begin with Chogsom’s appeal of the denial of his mo-\ntion for judgment of acquittal. “We review a district court’s\ndenial of a motion for judgment of acquittal de novo in the light\nmost favorable to the prosecution.” United States v. Giovenco,\n773 F.3d 866, 869 (7th Cir. 2014). We will affirm “[i]f any ra-\ntional trier of fact could have found the essential elements of\nthe crime beyond a reasonable doubt.” Id. It is the defendant’s\ntask to convince us of the insufficiency of the evidence, a bur-\nden we have called “heavy, indeed, nearly insurmountable.”\nUnited States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010).\n The indictment charged Chogsom with violating 18 U.S.C.\n§ 1001(a)(2), which makes it a crime to “knowingly and will-\nfully [make] a materially false statement in connection with a\nmatter within the jurisdiction of a federal agency.” United\nStates v. Rahman, 805 F.3d 822, 836 (7th Cir. 2015). The indict-\nment read: “[I]n response to the agents’ question as to\nwhether CHOGSOM recognized the woman in the photo they\ndisplayed, CHOGSOM responded that the person depicted in\nthe photo was ‘Jianmei Li’… .”3\n\n 3 The jury instructions described the charge as follows: “Chogsom is\ncharged … with knowingly and willfully making a false statement when\nhe was interviewed by agents of the [IRS] … about whether he recog-\nnized and knew the name of a woman depicted in a photo the agents dis-\nplayed to him… .”\n\fNos. 18-1200 & 18-1263 7\n\n Chogsom admits to identifying the woman as Jianmei Li.\nHe admits he knew the woman in the photo was his sister\nBurmaa. He even admits he gave the name “Jianmei Li” be-\ncause he wanted to protect his sister from immigration prob-\nlems. Nevertheless, Chogsom argues the jury should not have\nconvicted him because his answer was not literally false.\nChogsom maintains his sister was using the name Jianmei Li\nin the United States. It was her American alias, like a “street\nname.” Because Burmaa was using the name Jianmei Li in the\nUnited States, Chogsom maintains his answer that the woman\nin the photo was Jianmei Li was literally true, and thus he did\nnot “make a false statement” in violation of the statute.\n A statement that is literally true cannot support a convic-\ntion under § 1001(a)(2), “even if a defendant gives a mislead-\ning or nonresponsive answer.” Rahman, 805 F.3d at 838. For\nexample, in Bronston v. United States, 409 U.S. 352 (1973),4 the\ngovernment charged Samuel Bronston with committing per-\njury at a bankruptcy hearing. An attorney for a creditor asked\nBronston, the president of the bankrupt company, if Bronston\nhad ever had an account at a Swiss bank. Bronston answered,\n“The company had an account there for about six months, in\nZurich.” He did not mention his former personal account at\nthe International Credit Bank in Geneva. However, it was un-\ndisputed that his statement concerning the company’s ac-\ncount was true. Id. at 353–54.\n\n\n 4 Bronston and United States v. Gorman, 613 F.3d 711 (7th Cir. 2010),\nwhich we discuss below, both address prosecutions under federal per-\njury statutes, not § 1001(a). But we have applied the reasoning of those\ncases in the § 1001 context. Rahman, 805 F.3d at 838 (citing both Gorman\nand Bronston in addressing the appeal of a conviction under 18 U.S.C. §\n1001).\n\f8 Nos. 18-1200 & 18-1263\n\n And that made all the difference to the Supreme Court,\nwhich overturned Bronston’s conviction under the perjury\nstatute. Id. at 362. Though his answer gave “an implication …\nthat there was never a personal bank account … [t]he [per-\njury] statute does not make it a criminal act for a witness to\nwillfully state any material matter that implies any material\nmatter that he does not believe to be true.” Id. at 357–58. The\nCourt stated, “The burden is on the questioner to pin the wit-\nness down to the specific object of the questioner’s inquiry.”\nId. at 360. If the questioner was not satisfied with Bronston’s\nnon-responsive answer, he should have pressed the issue\nwith his questions. Id. at 362.\n So sometimes, by cleverness and quick thinking, a defend-\nant can avoid directly answering a tough question without ex-\nposing himself to conviction for doing so. But sometimes not.\nIn United States v. Gorman, 613 F.3d 711 (7th Cir. 2010),\nJamarkus Gorman was called to testify before a grand jury.\nOne of the grand jurors asked him, “Mr. Gorman, did you\nhave a Bentley in your garage at [your condominium com-\nplex]?” Gorman replied, “No.” Only, there had been a Bentley\nin the garage. The vehicle belonged to Gorman’s cousin, but\nGorman had given a condominium employee the impression\nit belonged to him and eventually orchestrated its removal\nfrom the garage so he could steal its contents. Gorman was\ncharged with and convicted of perjury based on his answer to\nthe grand jury. Id. at 714–17.\n Appealing his perjury conviction, Gorman “argue[d] he\ncould not have perjured himself because he did not ‘have’ a\nBentley”; it was his cousin’s. Gorman argued “have” requires\nownership, not just possession. Id. at 715–16\n\fNos. 18-1200 & 18-1263 9\n\n We acknowledged that Gorman’s argument, “[w]hen\nstretched to its logical limit,” had “some merit.” Id. at 716. Af-\nter all, “have” has many meanings. Id. (citing Webster’s Third\nNew International Dictionary 1039 (Philip Babcock Gove ed., 3d\ned. 1986)). “But what [Gorman] ignore[d] is that our prece-\ndent dictates that even when a question or answer is ambigu-\nous, a conviction may still be upheld if a jury has been called\nupon ‘to determine that the question as the defendant under-\nstood it was falsely answered… .’” Id. (last alteration in origi-\nnal) (quoting United States v. Scop, 940 F.2d 1004, 1012 (7th Cir.\n1991)). We concluded the jury at Gorman’s perjury trial was\nwell within its rights to find Gorman understood the grand\njuror’s question as inquiring about possession, rather than\nownership, so his answer to the question as asked was know-\ningly false. Id.\n The instant case is much more similar to Gorman than\nBronston. Here, the IRS agents asked Chogsom to identify the\nwoman in the photo from the Illinois ID. He knew it was his\nsister Burmaa, but he told them “Jianmei Li.”\n Chogsom, like Gorman, argues he gave an acceptable an-\nswer to an ambiguous question. And, as in Gorman, that argu-\nment has some validity. “Who is this?” or “Do you know who\nthis is?” are undoubtedly ambiguous questions. And Jianmei\nLi was certainly an identity for the woman named Burmaa\nChogsom—the government’s own evidence shows she had\nan ID with “Jianmei Li” on it. Nevertheless, the jury was enti-\ntled to resolve that ambiguity against Chogsom and conclude\nhe understood the IRS agents wanted to know Burmaa’s “ac-\ntual” name, not the alias she acquired with a fake Chinese\npassport. Understood that way, Chogsom’s decision to give\nher alias was not just misleading, as was the case in Bronston,\n\f10 Nos. 18-1200 & 18-1263\n\nbut false, as in Gorman. Accordingly, we cannot say it was un-\nreasonable for the jury to conclude Chogsom gave a false an-\nswer to the IRS agents’ ambiguous question.\n B.\n We turn now to Tantchev, who alleges four errors he be-\nlieves entitle him to a new trial. We take them in turn, noting\nthat we will reverse the district court’s decision to deny his\nmotion for a new trial only if we find an abuse of discretion.\nUnited States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012).\n 1.\n Tantchev first contends the district court should not have\ngiven a deliberate avoidance or “ostrich” instruction. Before\ngetting into the analysis, some additional background is help-\nful. The government charged Tantchev with exporting and at-\ntempting to export stolen vehicles and submitting false writ-\nten statements to CBP. Both crimes require that the defendant\nacted with knowledge. See 18 U.S.C. § 553(a) (“Whoever\nknowingly imports, exports or attempts to import or export—\n(1) any motor vehicle…knowing the same to have been sto-\nlen… .”); 18 U.S.C. § 1001(a) (“[W]hoever … knowingly and\nwillfully…(3) makes or uses any false writing or document\nknowing the same to contain any materially false, fictitious,\nor fraudulent statement or entry … .”). In defense, Tantchev\ncontested only the knowledge element of the offenses. He\nmaintained he did not know he was exporting stolen cars and\nsubmitting false information to CBP.\n The government requested the court give an ostrich in-\nstruction, which is meant “to inform the jury that a person\nmay not escape criminal liability by pleading ignorance if he\nknows or strongly suspects he is involved in criminal dealings\n\fNos. 18-1200 & 18-1263 11\n\nbut deliberately avoids learning more exact information\nabout the nature or extent of those dealings.” United States v.\nGreen, 648 F.3d 569, 582 (7th Cir. 2011) (internal quotation\nmarks omitted) (quoting United States v. Carani, 492 F.3d 867,\n873 (7th Cir. 2007)). Tantchev opposed the instruction, argu-\ning the government had not presented sufficient evidence of\ndeliberate avoidance to justify it. The district court agreed\nwith the government and gave the instruction.\n In its order addressing Tantchev’s post-trial motion for\nnew trial, the district court stated its conclusion that Tantchev\nhad “cut off his normal curiosity” by never looking into the\ncontainers shipped from his warehouse. Specifically,\n“Tantchev deliberately avoided exhibiting normal curiosity\nand safety and liability-related caution as to the contents of\nthe shipping containers in his truck yard, especially for some-\none with years of experience in the transportation industry.”\nIn this appeal, Tantchev continues to argue the government\ndid not present sufficient evidence to support the instruction.\n “We review a district court’s decision to give an ostrich\ninstruction for abuse of discretion, and in doing so we view\nthe evidence in the light most favorable to the government.”\nUnited States v. Pierotti, 777 F.3d 917, 920 (7th Cir. 2015). “An\nostrich instruction is appropriate where (1) a defendant\nclaims to lack guilty knowledge … and (2) the government\npresents evidence from which a jury could conclude that the\ndefendant deliberately avoided the truth.” United States v.\nGarcia, 580 F.3d 528, 537 (7th Cir. 2009). Evidence of deliberate\navoidance “can be placed into two general categories: evi-\ndence of ‘overt physical acts,’ and evidence of ‘purely psycho-\nlogical avoidance, a cutting off of one’s normal curiosity by\nan effort of will.’” United States v. Carrillo, 435 F.3d 767, 780\n\f12 Nos. 18-1200 & 18-1263\n\n(7th Cir. 2006) (quoting United States v. Craig, 178 F.3d 891, 896\n(7th Cir. 1999)).\n The district court concluded Tantchev “cut off” his curios-\nity by not looking in the containers, alluding to the language\nof psychological avoidance. We have found psychological\navoidance where a defendant was faced with proverbial “red\nflags” but did not investigate. See United States v. Pabey, 664\nF.3d 1084, 1093 (7th Cir. 2011); United States v. Leahy, 464 F.3d\n773, 796 (7th Cir. 2006) (“[F]ailure to ask questions that would\ncertainly arise from the circumstances … is evidence that\ncould lead a jury to determine [the defendant] deliberately\navoided learning about the [ ] scam.” (alterations in original)\n(quoting Craig, 178 F.3d at 897–98)). However, we must re-\nmember the instruction is aimed at defendants acting like fa-\nbled ostriches who bury their heads in the sand. We do not, if\nwe may add to the metaphorical menagerie, require every de-\nfendant to act like Curious George. Accordingly, courts must\nbe careful, lest we obliterate the already thin line between\navoidance, which is criminal, and indifference, which “cannot\nbe punished.” See Leahy, 464 F.3d at 796. We must keep in\nmind that “evidence merely supporting a finding of negli-\ngence—that a reasonable person would have been strongly\nsuspicious, or that a defendant should have been aware of\ncriminal knowledge—does not support an inference that a\nparticular defendant was deliberately ignorant.” Carrillo, 435\nF.3d at 782. The necessary willful blindness must surpass\nrecklessness as well. Global-Tech Appliances, Inc. v. SEB S.A.,\n563 U.S. 754, 769 (2011).\n Here, the evidence is very close. Tantchev argues he was\nnever present for the loading of the containers to Mongolia\n\fNos. 18-1200 & 18-1263 13\n\nand he filled out the CBP forms with information his custom-\ners provided. He testified he did not want to look in the con-\ntainers because he did not want liability for damaged goods.\nHe believed if he did not open the containers, any liability for\ndamages would fall on the customers who loaded them. But\nhe testified that he was very safety conscious in his trucking\nbusiness and took great precautions to ensure his shipments\nwere safe. He testified this was because the liability in his\ntrucking business would fall on him, not on his customers.\n The government argues it strains credulity to believe that\na man who owns his own transportation company would al-\nlow complete strangers to load shipping containers to be sent,\nin his name, to a foreign land without checking and making\nsure everything is safely stowed. Tantchev asserts that argu-\nment necessarily leads to the conclusion he had actual\nknowledge—it assumes he looked in the containers and actu-\nally knew the cars were stolen and the manifests were inaccu-\nrate. If that were true, the district court would have erred by\ngiving the ostrich instruction because evidence pointing\nsolely to direct knowledge of criminal activity does not sup-\nport the instruction. See United States v. Tanner, 628 F.3d 890,\n905 (7th Cir. 2010); United States v. Giovannetti, 919 F.2d 1223,\n1228 (7th Cir. 1990) (“[W]hen the facts require the jury to\nmake a ‘binary choice’ between ‘actual knowledge’ and ‘com-\nplete innocence,’ the ostrich instruction should not be\ngiven.”). The government certainly pushed an “actual\nknowledge” narrative, but the evidence does not present only\na “binary choice” between actual knowledge or no\nknowledge. Instead, it can support a finding of both actual\nknowledge and deliberate avoidance. See United States v. Car-\nrillo, 269 F.3d 761, 769 (7th Cir. 2001).\n\f14 Nos. 18-1200 & 18-1263\n\n For instance, the jury could have found Tantchev looked\nin the containers and saw the contents did not match the in-\nformation on the forms he would send to Atlantic Express for\nCBP. That would amount to actual knowledge the forms con-\ntained false information. But the jury could consider that\nknowledge as a “red flag” sufficient to raise questions in\nTantchev’s mind that everything was not above-board. It was\nthen Tantchev’s deliberate avoidance that led to his not hav-\ning actual knowledge the cars were stolen.\n Alternatively, the jury could have believed Tantchev’s tes-\ntimony that he never looked in the containers or verified the\ninformation provided by his customers, but concluded he\nadopted that indifferent attitude out of a desire to avoid con-\nfirming that he was part of a criminal scheme. After all, he\ntestified that he was safety-conscious in his trucking business.\nThe jury was entitled to conclude Tantchev purposely did not\nsubject these containers to the scrutiny he exercised in the\nother part of his business and draw a negative inference from\nthat change in behavior.\n These are not the strongest examples of when an ostrich\ninstruction is appropriate, but we are reviewing the court’s\ndecision to give the instruction for an abuse of discretion, tak-\ning all inferences in the light most favorable to the govern-\nment. In a close case like this one, that standard is dispositive.\nSee United States v. Ramirez, 574 F.3d 869, 881 (7th Cir. 2009)\n(“[I]n cases such as this, we should defer to the district court’s\nexercise of discretion to give the ostrich instruction.”). While\na different court may not have given the ostrich instruction\nunder these circumstances, the district court in this case did\nnot abuse its discretion in doing so.\n\fNos. 18-1200 & 18-1263 15\n\n 2.\n Tantchev’s second allegation of error also attacks a\nknowledge instruction. The district court instructed the jury:\n“If you find that the defendant was in possession of property\nthat recently had been stolen, you may infer that he knew it\nwas stolen.” The instruction tracked our suggested pattern.\nSee Seventh Circuit Pattern Criminal Jury Instruction 4.14.\nCourts have given this instruction, or one like it, “[f]or centu-\nries.” See Barnes v. United States, 412 U.S. 837, 843–44 (1973).\n Tantchev argues the evidence did not support this instruc-\ntion. He maintains he had a legitimate reason to possess the\ncars: he was shipping them for customers. He also notes these\ncars were not “stolen” in the usual sense; that is, they were\nnot hot-wired from a parking deck in the Loop or carjacked.\nBut Tantchev does not dispute the cars at issue in this case\nwere all nevertheless “stolen.” See generally United States v.\nTurley, 352 U.S. 407, 417 (1957) (“‘Stolen’ as used in 18 U.S.C.\n§ 2312 includes all felonious takings of motor vehicles with\nintent to deprive the owner of the rights and benefits of own-\nership, regardless of whether or not the theft constitutes com-\nmon-law larceny.”). And arguments about why Tantchev\npossessed them or when they were stolen are questions for\nthe jury. See United States v. Riso, 405 F.2d 134, 138 (7th Cir.\n1968) (“[W]hether possession is sufficiently recent … is a\nquestion of fact solely for the jury.”).\n Tantchev was in possession of stolen property. It was up\nto the jury to decide whether the surrounding circumstances\nsupported the inference of knowledge. It was not reversible\nerror to give the instruction.\n\f16 Nos. 18-1200 & 18-1263\n\n 3.\n Tantchev’s third allegation of error concerns the district\ncourt’s decision to allow the government to pursue a line of\nquestioning during his cross-examination. We review such\nevidentiary decisions “for abuse of discretion.” United States\nv. Boswell, 772 F.3d 469, 475 (7th Cir. 2014).\n During Tantchev’s direct examination, he and his counsel\nhad the following exchange:\n Q. And other than the three [containers\n named in the indictment], were there any\n problems with any of the rest of your con-\n tainers—\n A. No problem.\n Q. —that were inspected?\n A. No problem.\n On cross-examination the next day, the government\nsought to introduce evidence there were indeed other con-\ntainers that “had problems,” specifically that there were two\nother shipments that also contained stolen cars.5\n Q. … And you told us yesterday, sir,\n that besides these three shipments, there\n were never any other problems, right?\n A. Yes, sir.\n Q. Well, that’s not true is it?\n At this point, defense counsel objected, arguing that was\nnot an accurate characterization of Tantchev’s testimony from\n\n 5 The government did not charge these shipments in the indictment.\n\fNos. 18-1200 & 18-1263 17\n\ndirect. The court overruled the objection, and the questioning\ncontinued:\n Q. In fact, at exactly the same time\n these shipments were seized, there were\n two other [sic] seized also loaded up with\n stolen cars --\n MR. BRINDLEY [Defense counsel]:\n Objection, your Honor.\n BY MR. HOGAN [Prosecutor]:\n Q. -- also from your --\n MR. BRINDLEY: Objection.\n BY MR. HOGAN:\n Q. -- also from your yard?\n THE COURT: Wait. There is an ob-\n jection.\n There then followed a sidebar, after which the court al-\nlowed the government to proceed with the questioning, but\nin a limited manner. The court allowed the government to\ncontradict Tantchev’s testimony but prohibited it from get-\nting into the substance of the “problems” with the containers.\nNonetheless, as cross-examination continued, the prosecutor\nmentioned “stolen cars” two more times. Both times, defense\ncounsel objected and the court intervened before Tantchev\nanswered the question. Tantchev objects to this exchange.\n “It is well-settled that ‘when a criminal defendant elects to\ntestify in his own defense, he puts his credibility in issue and\nexposes himself to cross-examination, including the possibil-\nity that his testimony will be impeached.’” United States v.\n\f18 Nos. 18-1200 & 18-1263\n\nKohli, 847 F.3d 483, 492 (7th Cir. 2017) (quoting Boswell, 772 at\n475). Tantchev argues the government’s questioning was im-\nproper because it did not contradict his earlier testimony from\nhis direct examination.\n The government and the district court both interpreted\nTantchev’s testimony to be that he never had any other prob-\nlems with shipments. Tantchev maintains he did not testify\nthat he never had any other problems with his shipments, but\nonly that he had no problems with his shipments that were\noutstanding at the time CBP caught the containers charged in\nthe indictment.\n We conclude both are reasonable interpretations of\nTantchev’s answer from his direct testimony, which, particu-\nlarly given that Tantchev did not let his attorney finish the\nquestion before answering, is ambiguous. That conclusion re-\nsolves the issue. Presented with two possible interpretations,\nwe will not say the district court abused its discretion by\nchoosing one over the other.\n 4.\n Tantchev’s final allegation of error concerns the prosecu-\ntor’s comments during closing arguments. During the trial,\nevidence came in relating to the operations of the Fifth Third\nBank location from which the wire transfers were sent to Bul-\ngaria. Namely, it was introduced that an account holder had\nto be physically present in the branch to send a wire transfer,\n\fNos. 18-1200 & 18-1263 19\n\nand it was the responsibility of two employees, the branch\nmanager and the “banker,”6 to enforce this policy.\n In the course of questioning one of the bank employees,\nthe government elicited testimony that the banker at a partic-\nular branch Tantchev had used during the relevant period\nhad been fired. However, because of objections from the de-\nfense, the government was not able to introduce the witness’s\ntestimony concerning the firing of that branch’s manager or\nwhy those employees were fired.\n Nevertheless, in his closing argument, the prosecutor said,\n“But you heard from Ms. Sanchez that her supervisors back\nat that time at Fifth Third Bank were both fired for malfea-\nsance.” This prompted an objection from defense counsel,\nwho remarked that the reason the supervisors were fired had\nbeen “stricken as hearsay.” The district court then gave the\njury the following admonition: “Ladies and gentlemen, if I\nstruck something from the record, I will tell you now and tell\nyou, again, when I instruct you that you should not consider\nit at all. You should disregard it.” In the final instructions to\nthe jury before it began deliberations, the court also instructed\nthat statements by attorneys are not evidence.\n Tantchev argues the prosecutor’s misstatement of the evi-\ndence prejudiced him to the point of requiring a new trial.\nOur analysis proceeds in two phases: “[W]e first look at the\ndisputed remarks in isolation to determine if they are proper.\nIf they are improper, we then consider the remarks in light of\nthe entire record to determine if the defendant was deprived\n\n 6A witness testified the banker “sits at the desk greeting customers,\ntaking care of them for opening a checking account, savings account,\nCDs, auto loans.”\n\f20 Nos. 18-1200 & 18-1263\n\nof a fair trial.” United States v. Cotnam, 88 F.3d 487, 498 (7th\nCir. 1996). Here, the statement is clearly improper: the prose-\ncutor referenced facts not in evidence. So, we must ask\nwhether that impropriety deprived Tantchev of a fair trial.\n We consider six factors: “(1) whether the prosecutor mis-\nstated evidence; (2) whether the statements implicate a spe-\ncific right of the defendant; (3) whether the defense invited\nthe prosecutor’s remarks; (4) the trial court’s instructions; (5)\nthe weight of the evidence against the defendant; and (6) the\ndefendant’s opportunity to rebut.” United States v. Richards,\n719 F.3d 746, 766 (7th Cir. 2013). The fifth factor is “[t]he most\nimportant,” because “[s]trong evidence of guilt eliminates\nany lingering doubt that the prosecutor’s remarks unfairly\nprejudiced the jury’s deliberations.” Rodriguez v. Peters, 63\nF.3d 546, 558 (7th Cir. 1995) (quoting United States v. Gonzalez,\n933 F.2d 417, 431–32 (7th Cir. 1991)).\n Some of these factors do lean in favor of Tantchev. The\nprosecutor clearly misstated the evidence, and there is no in-\ndication Tantchev invited the remark in any way. But most\nfactors lean against him. The statements did not implicate a\nspecific right. The district court gave a curative instruction\nimmediately after the prosecutor made the remark and in-\nstructed the jury before deliberations that statements by attor-\nneys are not evidence. Tantchev had an opportunity to rebut,\nas his counsel made his closing argument after the prosecutor\nmade the offending statement. Finally, and most importantly,\nthe weight of the evidence is heavily on the side of the gov-\nernment. The prosecutor’s comment went to the structuring\ncharge, the implication being Tantchev was able to perpetrate\nhis financial scheme with the help of corrupt bank employees.\nThat conclusion was not critical to the case. The government\n\fNos. 18-1200 & 18-1263 21\n\npresented evidence of nearly 100 separate deposits totaling al-\nmost $575,000, all close in time, yet no single deposit was ever\nmore than $10,000. These deposits were then quickly followed\nby large wire transfers to bank accounts in Bulgaria,\nTantchev’s native country. And the government showed\nsome of the named account holders were not even in the\nUnited States at the time. In the face of all this evidence, it is\nnot as if the bank employee’s bad acts were the key evidence\nTantchev was making his deposits with the intent to avoid the\nreporting requirements. The prosecutor’s comment was im-\nproper, but it did not deprive Tantchev of a fair trial.\n III.\n This case contains several close calls, and Chogsom and\nTantchev raise compelling points. But our review requires\ndeference to the district court and the jury, both of which have\nseen the witnesses and heard the testimony, and thus have a\ngreater appreciation of what transpired during those six days\nin March 2017. With that deference in mind, and for the rea-\nsons set forth above, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370096/", "author_raw": "Daniel Anthony Manion"}]}	WOOD	MANION	ROVNER	1	{"WOOD": ", Chief", "MANION": ", Cir cuit", "ROVNER": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592843/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,844		United States v. Batmagnai Chogsom	2019-02-21	18-1263	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and MANION and ROVNER, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 18-1200 & 18-1263\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nNIKOLAY TANTCHEV and\nBATMAGNAI CHOGSOM,\n Defendants-Appellants.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16-cr-174 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED NOVEMBER 1, 2018 — DECIDED FEBRUARY 21, 2019\n ____________________\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Cir-\ncuit Judges.\n MANION, Circuit Judge. After a six-day trial involving\ntwenty-nine witnesses, a federal jury convicted Nikolay\nTantchev of exporting and attempting to export stolen cars,\nsubmitting false documents to customs officials, and structur-\ning financial transactions to avoid federal reporting require-\nments. That same jury acquitted Tantchev’s co-defendant,\n\f2 Nos. 18-1200 & 18-1263\n\nBatmagnai Chogsom, of charges related to the stolen cars and\nfalse documents, but it convicted Chogsom of making a false\nstatement to an IRS agent. The district court sentenced\nTantchev to 40 months’ imprisonment and Chogsom to 3\nyears’ probation.\n Both defendants appeal their convictions. Tantchev al-\nleges several errors by the district court at trial, and Chogsom\nchallenges the sufficiency of the evidence against him. We af-\nfirm the convictions.\n I.\n Tantchev, a native of Bulgaria, owned a trucking business\nthat operated out of a warehouse in Chicago. Chogsom, a\nMongolian immigrant, worked for Tantchev.\n In 2008, Tantchev began shipping containers of goods to\nBulgaria using a company called Atlantic Express. Seeing an\nopportunity, Tantchev started a small side-business arrang-\ning shipping containers from Atlantic Express for others.\nTantchev would order containers from Atlantic Express at a\ndiscount and charge a premium for acting as a middle man.\nThough he had the containers delivered to his Chicago ware-\nhouse, this was a separate operation from his normal trucking\nbusiness. Through Chogsom, members of Chicago’s Mongo-\nlian community began coming to Tantchev to set up ship-\nments to Mongolia. These shipments often included vehicles.\n According to Tantchev, his involvement with these inter-\nnational shipments was minimal. A customer looking to ship\nsomething would approach Tantchev or Chogsom. Tantchev\nwould then order a shipping container from Atlantic Express,\nwhich would drop it off at Tantchev’s warehouse. The cus-\ntomer would come to the warehouse and load the container\n\fNos. 18-1200 & 18-1263 3\n\nhimself, and the container would be sealed. Atlantic Express\nwould then pick up the loaded container from the warehouse.\nTantchev would fill out the appropriate papers based on what\nhis customers told him and send the papers and any other\ndocuments to Atlantic Express to forward to United States\nCustoms and Border Protection (CBP).\n In the early part of 2011, CBP discovered three of\nTantchev’s shipments to Mongolia contained stolen cars.1 Ad-\nditionally, the documentation Tantchev had submitted did\nnot accurately reflect the contents of the containers. One con-\ntainer was supposed to hold a Honda, but instead contained\na stolen BMW. Two others were declared as containing min-\ning machinery, but they actually contained a stolen Mercedes\nand two stolen Lexuses.\n Also in early 2011, Tantchev began making large deposits\ninto seven bank accounts at Fifth Third Bank and Chase Bank.\nTwo of the accounts were in Tantchev’s name, one belonged\nto his father, and the other four were in the names of Kosa\nBonev, Otgonbayar Jigmidsambuu, Jianmei Li, and Yu Li, re-\nspectively. No single deposit was ever over $10,000, the max-\nimum amount that does not trigger a federal reporting re-\nquirement. Despite no single deposit ever breaching that\n$10,000 ceiling—which Tantchev knew to be the reporting\nthreshold—Tantchev managed to deposit $574,965 into those\naccounts in less than two months, from March 14 to May 4,\n2011. Then, despite the fact that some of the account holders\n\n 1The parties do not dispute that the cars were stolen. All four cars\ncharged in the indictment were subject to liens. When authorities re-\nported to the creditors that the cars had been discovered on shipping\ncontainers bound for Mongolia, the creditors reported them stolen and\nrecovered them.\n\f4 Nos. 18-1200 & 18-1263\n\nwere not even in the United States at the time, from March 16\nto May 5, 2011, wire transfers were sent from the accounts of\nBonev, Jigmidsambuu, Jianmei Li, and Yu Li in the total\namount of $552,090 to twenty-two different accounts located\nin Sofia, Bulgaria.2 This activity prompted Fifth Third Bank to\nreport Tantchev for suspected criminal activity.\n The IRS began an investigation after receiving the report\nfrom Fifth Third Bank. As part of that investigation, Agent Ja-\nson Gibson set out to find Jianmei Li, the listed owner of one\nof the Fifth Third bank accounts. Through the Illinois Secre-\ntary of State, Agent Gibson acquired the information and a\nphoto from an Illinois identification card in that name. After\nthe address on the ID proved to be a bust, he and another\nagent went to the address connected with the bank account.\nAt that address, he spoke with Gerelt Dashdorj, the nephew\nof defendant Chogsom. After talking with Dashdorj and\nshowing him the picture from the ID, Agent Gibson believed\nJianmei Li was Burmaa Chogsom, defendant Chogsom’s sis-\nter.\n Agent Gibson then went to interview defendant Chogsom.\nHe showed Chogsom the photo from the Illinois ID and asked\n\n 2 From whom all this money came and whether they are trying to get\nit back are among the hollow spots in this case—questions the facts raise\nin questioning minds but the parties do not litigate or answer. The gov-\nernment presented evidence at trial suggesting Tantchev received\n$750,000 in wire transfers from Mongolia (including several transfers la-\nbeled “for car”), but it did not have direct evidence that was the source\nof the full $574,965. Neither is there any discussion in the briefs about\nwhether these Mongolian buyers were unwittingly purchasing stolen\ncars or were themselves part of the criminal scheme. While these ques-\ntions are ultimately immaterial because the facts we have are enough to\nresolve this appeal, there is doubtless more to the story.\n\fNos. 18-1200 & 18-1263 5\n\nhim if he recognized the woman. Chogsom replied it was\n“Jianmei Li,” a woman with whom he used to work. Agent\nGibson asked Chogsom if he had a sister named Burmaa.\nChogsom answered he did, and that she was in Mongolia.\nAgent Gibson never asked if the woman in the photo was\nChogsom’s sister Burmaa.\n As it turns out, the woman in the photo was indeed\nBurmaa Chogsom. She had acquired the Illinois ID in the\nname of Jianmei Li using a fraudulent Chinese passport and\na Social Security number originally issued to a worker in Sai-\npan. She had returned to Mongolia in 2010.\n A federal grand jury issued an indictment against\nTantchev and Chogsom on March 16, 2016. The indictment\ncharged Tantchev with three counts of exporting and at-\ntempting to export stolen vehicles, two counts of submitting\nfalse writings to CBP, and one count of structuring deposits\nto avoid federal reporting requirements. The indictment\ncharged Chogsom with two counts relating to the export of\nstolen vehicles, one count of submitting false writings, and\none count of lying to an IRS agent based on his identifying the\nwoman in the photo as Jianmei Li rather than as Burmaa\nChogsom.\n The case proceeded to a jury trial. The jury heard testi-\nmony from twenty-seven witnesses for the government and\nfrom both defendants. The jury convicted Tantchev of all\ncharges leveled against him. It convicted Chogsom of lying to\nthe IRS agents and acquitted him of the remaining charges.\nBoth defendants made post-trial motions for judgment of ac-\nquittal, and Tantchev moved for a new trial. The district court\ndenied all three motions. The defendants appeal.\n\f6 Nos. 18-1200 & 18-1263\n\n II.\n Tantchev appeals the denial of his motion for a new trial,\nalleging multiple errors. Chogsom appeals the denial of his\nmotion for judgment of acquittal. As these two defendants\npresent discrete issues, we will address them separately.\n A.\n We begin with Chogsom’s appeal of the denial of his mo-\ntion for judgment of acquittal. “We review a district court’s\ndenial of a motion for judgment of acquittal de novo in the light\nmost favorable to the prosecution.” United States v. Giovenco,\n773 F.3d 866, 869 (7th Cir. 2014). We will affirm “[i]f any ra-\ntional trier of fact could have found the essential elements of\nthe crime beyond a reasonable doubt.” Id. It is the defendant’s\ntask to convince us of the insufficiency of the evidence, a bur-\nden we have called “heavy, indeed, nearly insurmountable.”\nUnited States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010).\n The indictment charged Chogsom with violating 18 U.S.C.\n§ 1001(a)(2), which makes it a crime to “knowingly and will-\nfully [make] a materially false statement in connection with a\nmatter within the jurisdiction of a federal agency.” United\nStates v. Rahman, 805 F.3d 822, 836 (7th Cir. 2015). The indict-\nment read: “[I]n response to the agents’ question as to\nwhether CHOGSOM recognized the woman in the photo they\ndisplayed, CHOGSOM responded that the person depicted in\nthe photo was ‘Jianmei Li’… .”3\n\n 3 The jury instructions described the charge as follows: “Chogsom is\ncharged … with knowingly and willfully making a false statement when\nhe was interviewed by agents of the [IRS] … about whether he recog-\nnized and knew the name of a woman depicted in a photo the agents dis-\nplayed to him… .”\n\fNos. 18-1200 & 18-1263 7\n\n Chogsom admits to identifying the woman as Jianmei Li.\nHe admits he knew the woman in the photo was his sister\nBurmaa. He even admits he gave the name “Jianmei Li” be-\ncause he wanted to protect his sister from immigration prob-\nlems. Nevertheless, Chogsom argues the jury should not have\nconvicted him because his answer was not literally false.\nChogsom maintains his sister was using the name Jianmei Li\nin the United States. It was her American alias, like a “street\nname.” Because Burmaa was using the name Jianmei Li in the\nUnited States, Chogsom maintains his answer that the woman\nin the photo was Jianmei Li was literally true, and thus he did\nnot “make a false statement” in violation of the statute.\n A statement that is literally true cannot support a convic-\ntion under § 1001(a)(2), “even if a defendant gives a mislead-\ning or nonresponsive answer.” Rahman, 805 F.3d at 838. For\nexample, in Bronston v. United States, 409 U.S. 352 (1973),4 the\ngovernment charged Samuel Bronston with committing per-\njury at a bankruptcy hearing. An attorney for a creditor asked\nBronston, the president of the bankrupt company, if Bronston\nhad ever had an account at a Swiss bank. Bronston answered,\n“The company had an account there for about six months, in\nZurich.” He did not mention his former personal account at\nthe International Credit Bank in Geneva. However, it was un-\ndisputed that his statement concerning the company’s ac-\ncount was true. Id. at 353–54.\n\n\n 4 Bronston and United States v. Gorman, 613 F.3d 711 (7th Cir. 2010),\nwhich we discuss below, both address prosecutions under federal per-\njury statutes, not § 1001(a). But we have applied the reasoning of those\ncases in the § 1001 context. Rahman, 805 F.3d at 838 (citing both Gorman\nand Bronston in addressing the appeal of a conviction under 18 U.S.C. §\n1001).\n\f8 Nos. 18-1200 & 18-1263\n\n And that made all the difference to the Supreme Court,\nwhich overturned Bronston’s conviction under the perjury\nstatute. Id. at 362. Though his answer gave “an implication …\nthat there was never a personal bank account … [t]he [per-\njury] statute does not make it a criminal act for a witness to\nwillfully state any material matter that implies any material\nmatter that he does not believe to be true.” Id. at 357–58. The\nCourt stated, “The burden is on the questioner to pin the wit-\nness down to the specific object of the questioner’s inquiry.”\nId. at 360. If the questioner was not satisfied with Bronston’s\nnon-responsive answer, he should have pressed the issue\nwith his questions. Id. at 362.\n So sometimes, by cleverness and quick thinking, a defend-\nant can avoid directly answering a tough question without ex-\nposing himself to conviction for doing so. But sometimes not.\nIn United States v. Gorman, 613 F.3d 711 (7th Cir. 2010),\nJamarkus Gorman was called to testify before a grand jury.\nOne of the grand jurors asked him, “Mr. Gorman, did you\nhave a Bentley in your garage at [your condominium com-\nplex]?” Gorman replied, “No.” Only, there had been a Bentley\nin the garage. The vehicle belonged to Gorman’s cousin, but\nGorman had given a condominium employee the impression\nit belonged to him and eventually orchestrated its removal\nfrom the garage so he could steal its contents. Gorman was\ncharged with and convicted of perjury based on his answer to\nthe grand jury. Id. at 714–17.\n Appealing his perjury conviction, Gorman “argue[d] he\ncould not have perjured himself because he did not ‘have’ a\nBentley”; it was his cousin’s. Gorman argued “have” requires\nownership, not just possession. Id. at 715–16\n\fNos. 18-1200 & 18-1263 9\n\n We acknowledged that Gorman’s argument, “[w]hen\nstretched to its logical limit,” had “some merit.” Id. at 716. Af-\nter all, “have” has many meanings. Id. (citing Webster’s Third\nNew International Dictionary 1039 (Philip Babcock Gove ed., 3d\ned. 1986)). “But what [Gorman] ignore[d] is that our prece-\ndent dictates that even when a question or answer is ambigu-\nous, a conviction may still be upheld if a jury has been called\nupon ‘to determine that the question as the defendant under-\nstood it was falsely answered… .’” Id. (last alteration in origi-\nnal) (quoting United States v. Scop, 940 F.2d 1004, 1012 (7th Cir.\n1991)). We concluded the jury at Gorman’s perjury trial was\nwell within its rights to find Gorman understood the grand\njuror’s question as inquiring about possession, rather than\nownership, so his answer to the question as asked was know-\ningly false. Id.\n The instant case is much more similar to Gorman than\nBronston. Here, the IRS agents asked Chogsom to identify the\nwoman in the photo from the Illinois ID. He knew it was his\nsister Burmaa, but he told them “Jianmei Li.”\n Chogsom, like Gorman, argues he gave an acceptable an-\nswer to an ambiguous question. And, as in Gorman, that argu-\nment has some validity. “Who is this?” or “Do you know who\nthis is?” are undoubtedly ambiguous questions. And Jianmei\nLi was certainly an identity for the woman named Burmaa\nChogsom—the government’s own evidence shows she had\nan ID with “Jianmei Li” on it. Nevertheless, the jury was enti-\ntled to resolve that ambiguity against Chogsom and conclude\nhe understood the IRS agents wanted to know Burmaa’s “ac-\ntual” name, not the alias she acquired with a fake Chinese\npassport. Understood that way, Chogsom’s decision to give\nher alias was not just misleading, as was the case in Bronston,\n\f10 Nos. 18-1200 & 18-1263\n\nbut false, as in Gorman. Accordingly, we cannot say it was un-\nreasonable for the jury to conclude Chogsom gave a false an-\nswer to the IRS agents’ ambiguous question.\n B.\n We turn now to Tantchev, who alleges four errors he be-\nlieves entitle him to a new trial. We take them in turn, noting\nthat we will reverse the district court’s decision to deny his\nmotion for a new trial only if we find an abuse of discretion.\nUnited States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012).\n 1.\n Tantchev first contends the district court should not have\ngiven a deliberate avoidance or “ostrich” instruction. Before\ngetting into the analysis, some additional background is help-\nful. The government charged Tantchev with exporting and at-\ntempting to export stolen vehicles and submitting false writ-\nten statements to CBP. Both crimes require that the defendant\nacted with knowledge. See 18 U.S.C. § 553(a) (“Whoever\nknowingly imports, exports or attempts to import or export—\n(1) any motor vehicle…knowing the same to have been sto-\nlen… .”); 18 U.S.C. § 1001(a) (“[W]hoever … knowingly and\nwillfully…(3) makes or uses any false writing or document\nknowing the same to contain any materially false, fictitious,\nor fraudulent statement or entry … .”). In defense, Tantchev\ncontested only the knowledge element of the offenses. He\nmaintained he did not know he was exporting stolen cars and\nsubmitting false information to CBP.\n The government requested the court give an ostrich in-\nstruction, which is meant “to inform the jury that a person\nmay not escape criminal liability by pleading ignorance if he\nknows or strongly suspects he is involved in criminal dealings\n\fNos. 18-1200 & 18-1263 11\n\nbut deliberately avoids learning more exact information\nabout the nature or extent of those dealings.” United States v.\nGreen, 648 F.3d 569, 582 (7th Cir. 2011) (internal quotation\nmarks omitted) (quoting United States v. Carani, 492 F.3d 867,\n873 (7th Cir. 2007)). Tantchev opposed the instruction, argu-\ning the government had not presented sufficient evidence of\ndeliberate avoidance to justify it. The district court agreed\nwith the government and gave the instruction.\n In its order addressing Tantchev’s post-trial motion for\nnew trial, the district court stated its conclusion that Tantchev\nhad “cut off his normal curiosity” by never looking into the\ncontainers shipped from his warehouse. Specifically,\n“Tantchev deliberately avoided exhibiting normal curiosity\nand safety and liability-related caution as to the contents of\nthe shipping containers in his truck yard, especially for some-\none with years of experience in the transportation industry.”\nIn this appeal, Tantchev continues to argue the government\ndid not present sufficient evidence to support the instruction.\n “We review a district court’s decision to give an ostrich\ninstruction for abuse of discretion, and in doing so we view\nthe evidence in the light most favorable to the government.”\nUnited States v. Pierotti, 777 F.3d 917, 920 (7th Cir. 2015). “An\nostrich instruction is appropriate where (1) a defendant\nclaims to lack guilty knowledge … and (2) the government\npresents evidence from which a jury could conclude that the\ndefendant deliberately avoided the truth.” United States v.\nGarcia, 580 F.3d 528, 537 (7th Cir. 2009). Evidence of deliberate\navoidance “can be placed into two general categories: evi-\ndence of ‘overt physical acts,’ and evidence of ‘purely psycho-\nlogical avoidance, a cutting off of one’s normal curiosity by\nan effort of will.’” United States v. Carrillo, 435 F.3d 767, 780\n\f12 Nos. 18-1200 & 18-1263\n\n(7th Cir. 2006) (quoting United States v. Craig, 178 F.3d 891, 896\n(7th Cir. 1999)).\n The district court concluded Tantchev “cut off” his curios-\nity by not looking in the containers, alluding to the language\nof psychological avoidance. We have found psychological\navoidance where a defendant was faced with proverbial “red\nflags” but did not investigate. See United States v. Pabey, 664\nF.3d 1084, 1093 (7th Cir. 2011); United States v. Leahy, 464 F.3d\n773, 796 (7th Cir. 2006) (“[F]ailure to ask questions that would\ncertainly arise from the circumstances … is evidence that\ncould lead a jury to determine [the defendant] deliberately\navoided learning about the [ ] scam.” (alterations in original)\n(quoting Craig, 178 F.3d at 897–98)). However, we must re-\nmember the instruction is aimed at defendants acting like fa-\nbled ostriches who bury their heads in the sand. We do not, if\nwe may add to the metaphorical menagerie, require every de-\nfendant to act like Curious George. Accordingly, courts must\nbe careful, lest we obliterate the already thin line between\navoidance, which is criminal, and indifference, which “cannot\nbe punished.” See Leahy, 464 F.3d at 796. We must keep in\nmind that “evidence merely supporting a finding of negli-\ngence—that a reasonable person would have been strongly\nsuspicious, or that a defendant should have been aware of\ncriminal knowledge—does not support an inference that a\nparticular defendant was deliberately ignorant.” Carrillo, 435\nF.3d at 782. The necessary willful blindness must surpass\nrecklessness as well. Global-Tech Appliances, Inc. v. SEB S.A.,\n563 U.S. 754, 769 (2011).\n Here, the evidence is very close. Tantchev argues he was\nnever present for the loading of the containers to Mongolia\n\fNos. 18-1200 & 18-1263 13\n\nand he filled out the CBP forms with information his custom-\ners provided. He testified he did not want to look in the con-\ntainers because he did not want liability for damaged goods.\nHe believed if he did not open the containers, any liability for\ndamages would fall on the customers who loaded them. But\nhe testified that he was very safety conscious in his trucking\nbusiness and took great precautions to ensure his shipments\nwere safe. He testified this was because the liability in his\ntrucking business would fall on him, not on his customers.\n The government argues it strains credulity to believe that\na man who owns his own transportation company would al-\nlow complete strangers to load shipping containers to be sent,\nin his name, to a foreign land without checking and making\nsure everything is safely stowed. Tantchev asserts that argu-\nment necessarily leads to the conclusion he had actual\nknowledge—it assumes he looked in the containers and actu-\nally knew the cars were stolen and the manifests were inaccu-\nrate. If that were true, the district court would have erred by\ngiving the ostrich instruction because evidence pointing\nsolely to direct knowledge of criminal activity does not sup-\nport the instruction. See United States v. Tanner, 628 F.3d 890,\n905 (7th Cir. 2010); United States v. Giovannetti, 919 F.2d 1223,\n1228 (7th Cir. 1990) (“[W]hen the facts require the jury to\nmake a ‘binary choice’ between ‘actual knowledge’ and ‘com-\nplete innocence,’ the ostrich instruction should not be\ngiven.”). The government certainly pushed an “actual\nknowledge” narrative, but the evidence does not present only\na “binary choice” between actual knowledge or no\nknowledge. Instead, it can support a finding of both actual\nknowledge and deliberate avoidance. See United States v. Car-\nrillo, 269 F.3d 761, 769 (7th Cir. 2001).\n\f14 Nos. 18-1200 & 18-1263\n\n For instance, the jury could have found Tantchev looked\nin the containers and saw the contents did not match the in-\nformation on the forms he would send to Atlantic Express for\nCBP. That would amount to actual knowledge the forms con-\ntained false information. But the jury could consider that\nknowledge as a “red flag” sufficient to raise questions in\nTantchev’s mind that everything was not above-board. It was\nthen Tantchev’s deliberate avoidance that led to his not hav-\ning actual knowledge the cars were stolen.\n Alternatively, the jury could have believed Tantchev’s tes-\ntimony that he never looked in the containers or verified the\ninformation provided by his customers, but concluded he\nadopted that indifferent attitude out of a desire to avoid con-\nfirming that he was part of a criminal scheme. After all, he\ntestified that he was safety-conscious in his trucking business.\nThe jury was entitled to conclude Tantchev purposely did not\nsubject these containers to the scrutiny he exercised in the\nother part of his business and draw a negative inference from\nthat change in behavior.\n These are not the strongest examples of when an ostrich\ninstruction is appropriate, but we are reviewing the court’s\ndecision to give the instruction for an abuse of discretion, tak-\ning all inferences in the light most favorable to the govern-\nment. In a close case like this one, that standard is dispositive.\nSee United States v. Ramirez, 574 F.3d 869, 881 (7th Cir. 2009)\n(“[I]n cases such as this, we should defer to the district court’s\nexercise of discretion to give the ostrich instruction.”). While\na different court may not have given the ostrich instruction\nunder these circumstances, the district court in this case did\nnot abuse its discretion in doing so.\n\fNos. 18-1200 & 18-1263 15\n\n 2.\n Tantchev’s second allegation of error also attacks a\nknowledge instruction. The district court instructed the jury:\n“If you find that the defendant was in possession of property\nthat recently had been stolen, you may infer that he knew it\nwas stolen.” The instruction tracked our suggested pattern.\nSee Seventh Circuit Pattern Criminal Jury Instruction 4.14.\nCourts have given this instruction, or one like it, “[f]or centu-\nries.” See Barnes v. United States, 412 U.S. 837, 843–44 (1973).\n Tantchev argues the evidence did not support this instruc-\ntion. He maintains he had a legitimate reason to possess the\ncars: he was shipping them for customers. He also notes these\ncars were not “stolen” in the usual sense; that is, they were\nnot hot-wired from a parking deck in the Loop or carjacked.\nBut Tantchev does not dispute the cars at issue in this case\nwere all nevertheless “stolen.” See generally United States v.\nTurley, 352 U.S. 407, 417 (1957) (“‘Stolen’ as used in 18 U.S.C.\n§ 2312 includes all felonious takings of motor vehicles with\nintent to deprive the owner of the rights and benefits of own-\nership, regardless of whether or not the theft constitutes com-\nmon-law larceny.”). And arguments about why Tantchev\npossessed them or when they were stolen are questions for\nthe jury. See United States v. Riso, 405 F.2d 134, 138 (7th Cir.\n1968) (“[W]hether possession is sufficiently recent … is a\nquestion of fact solely for the jury.”).\n Tantchev was in possession of stolen property. It was up\nto the jury to decide whether the surrounding circumstances\nsupported the inference of knowledge. It was not reversible\nerror to give the instruction.\n\f16 Nos. 18-1200 & 18-1263\n\n 3.\n Tantchev’s third allegation of error concerns the district\ncourt’s decision to allow the government to pursue a line of\nquestioning during his cross-examination. We review such\nevidentiary decisions “for abuse of discretion.” United States\nv. Boswell, 772 F.3d 469, 475 (7th Cir. 2014).\n During Tantchev’s direct examination, he and his counsel\nhad the following exchange:\n Q. And other than the three [containers\n named in the indictment], were there any\n problems with any of the rest of your con-\n tainers—\n A. No problem.\n Q. —that were inspected?\n A. No problem.\n On cross-examination the next day, the government\nsought to introduce evidence there were indeed other con-\ntainers that “had problems,” specifically that there were two\nother shipments that also contained stolen cars.5\n Q. … And you told us yesterday, sir,\n that besides these three shipments, there\n were never any other problems, right?\n A. Yes, sir.\n Q. Well, that’s not true is it?\n At this point, defense counsel objected, arguing that was\nnot an accurate characterization of Tantchev’s testimony from\n\n 5 The government did not charge these shipments in the indictment.\n\fNos. 18-1200 & 18-1263 17\n\ndirect. The court overruled the objection, and the questioning\ncontinued:\n Q. In fact, at exactly the same time\n these shipments were seized, there were\n two other [sic] seized also loaded up with\n stolen cars --\n MR. BRINDLEY [Defense counsel]:\n Objection, your Honor.\n BY MR. HOGAN [Prosecutor]:\n Q. -- also from your --\n MR. BRINDLEY: Objection.\n BY MR. HOGAN:\n Q. -- also from your yard?\n THE COURT: Wait. There is an ob-\n jection.\n There then followed a sidebar, after which the court al-\nlowed the government to proceed with the questioning, but\nin a limited manner. The court allowed the government to\ncontradict Tantchev’s testimony but prohibited it from get-\nting into the substance of the “problems” with the containers.\nNonetheless, as cross-examination continued, the prosecutor\nmentioned “stolen cars” two more times. Both times, defense\ncounsel objected and the court intervened before Tantchev\nanswered the question. Tantchev objects to this exchange.\n “It is well-settled that ‘when a criminal defendant elects to\ntestify in his own defense, he puts his credibility in issue and\nexposes himself to cross-examination, including the possibil-\nity that his testimony will be impeached.’” United States v.\n\f18 Nos. 18-1200 & 18-1263\n\nKohli, 847 F.3d 483, 492 (7th Cir. 2017) (quoting Boswell, 772 at\n475). Tantchev argues the government’s questioning was im-\nproper because it did not contradict his earlier testimony from\nhis direct examination.\n The government and the district court both interpreted\nTantchev’s testimony to be that he never had any other prob-\nlems with shipments. Tantchev maintains he did not testify\nthat he never had any other problems with his shipments, but\nonly that he had no problems with his shipments that were\noutstanding at the time CBP caught the containers charged in\nthe indictment.\n We conclude both are reasonable interpretations of\nTantchev’s answer from his direct testimony, which, particu-\nlarly given that Tantchev did not let his attorney finish the\nquestion before answering, is ambiguous. That conclusion re-\nsolves the issue. Presented with two possible interpretations,\nwe will not say the district court abused its discretion by\nchoosing one over the other.\n 4.\n Tantchev’s final allegation of error concerns the prosecu-\ntor’s comments during closing arguments. During the trial,\nevidence came in relating to the operations of the Fifth Third\nBank location from which the wire transfers were sent to Bul-\ngaria. Namely, it was introduced that an account holder had\nto be physically present in the branch to send a wire transfer,\n\fNos. 18-1200 & 18-1263 19\n\nand it was the responsibility of two employees, the branch\nmanager and the “banker,”6 to enforce this policy.\n In the course of questioning one of the bank employees,\nthe government elicited testimony that the banker at a partic-\nular branch Tantchev had used during the relevant period\nhad been fired. However, because of objections from the de-\nfense, the government was not able to introduce the witness’s\ntestimony concerning the firing of that branch’s manager or\nwhy those employees were fired.\n Nevertheless, in his closing argument, the prosecutor said,\n“But you heard from Ms. Sanchez that her supervisors back\nat that time at Fifth Third Bank were both fired for malfea-\nsance.” This prompted an objection from defense counsel,\nwho remarked that the reason the supervisors were fired had\nbeen “stricken as hearsay.” The district court then gave the\njury the following admonition: “Ladies and gentlemen, if I\nstruck something from the record, I will tell you now and tell\nyou, again, when I instruct you that you should not consider\nit at all. You should disregard it.” In the final instructions to\nthe jury before it began deliberations, the court also instructed\nthat statements by attorneys are not evidence.\n Tantchev argues the prosecutor’s misstatement of the evi-\ndence prejudiced him to the point of requiring a new trial.\nOur analysis proceeds in two phases: “[W]e first look at the\ndisputed remarks in isolation to determine if they are proper.\nIf they are improper, we then consider the remarks in light of\nthe entire record to determine if the defendant was deprived\n\n 6A witness testified the banker “sits at the desk greeting customers,\ntaking care of them for opening a checking account, savings account,\nCDs, auto loans.”\n\f20 Nos. 18-1200 & 18-1263\n\nof a fair trial.” United States v. Cotnam, 88 F.3d 487, 498 (7th\nCir. 1996). Here, the statement is clearly improper: the prose-\ncutor referenced facts not in evidence. So, we must ask\nwhether that impropriety deprived Tantchev of a fair trial.\n We consider six factors: “(1) whether the prosecutor mis-\nstated evidence; (2) whether the statements implicate a spe-\ncific right of the defendant; (3) whether the defense invited\nthe prosecutor’s remarks; (4) the trial court’s instructions; (5)\nthe weight of the evidence against the defendant; and (6) the\ndefendant’s opportunity to rebut.” United States v. Richards,\n719 F.3d 746, 766 (7th Cir. 2013). The fifth factor is “[t]he most\nimportant,” because “[s]trong evidence of guilt eliminates\nany lingering doubt that the prosecutor’s remarks unfairly\nprejudiced the jury’s deliberations.” Rodriguez v. Peters, 63\nF.3d 546, 558 (7th Cir. 1995) (quoting United States v. Gonzalez,\n933 F.2d 417, 431–32 (7th Cir. 1991)).\n Some of these factors do lean in favor of Tantchev. The\nprosecutor clearly misstated the evidence, and there is no in-\ndication Tantchev invited the remark in any way. But most\nfactors lean against him. The statements did not implicate a\nspecific right. The district court gave a curative instruction\nimmediately after the prosecutor made the remark and in-\nstructed the jury before deliberations that statements by attor-\nneys are not evidence. Tantchev had an opportunity to rebut,\nas his counsel made his closing argument after the prosecutor\nmade the offending statement. Finally, and most importantly,\nthe weight of the evidence is heavily on the side of the gov-\nernment. The prosecutor’s comment went to the structuring\ncharge, the implication being Tantchev was able to perpetrate\nhis financial scheme with the help of corrupt bank employees.\nThat conclusion was not critical to the case. The government\n\fNos. 18-1200 & 18-1263 21\n\npresented evidence of nearly 100 separate deposits totaling al-\nmost $575,000, all close in time, yet no single deposit was ever\nmore than $10,000. These deposits were then quickly followed\nby large wire transfers to bank accounts in Bulgaria,\nTantchev’s native country. And the government showed\nsome of the named account holders were not even in the\nUnited States at the time. In the face of all this evidence, it is\nnot as if the bank employee’s bad acts were the key evidence\nTantchev was making his deposits with the intent to avoid the\nreporting requirements. The prosecutor’s comment was im-\nproper, but it did not deprive Tantchev of a fair trial.\n III.\n This case contains several close calls, and Chogsom and\nTantchev raise compelling points. But our review requires\ndeference to the district court and the jury, both of which have\nseen the witnesses and heard the testimony, and thus have a\ngreater appreciation of what transpired during those six days\nin March 2017. With that deference in mind, and for the rea-\nsons set forth above, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370097/", "author_raw": "Daniel Anthony Manion"}]}	WOOD	MANION	ROVNER	1	{"WOOD": ", Chief", "MANION": ", Cir cuit", "ROVNER": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592844/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,845		Todd D'Antoni v. United States	2019-02-21	18-1358	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "Joel Martin Flaum", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1358\nTODD A. D’ANTONI,\n Petitioner-Appellant,\n v.\n\nUNITED STATES OF AMERICA,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 16-cv-00398 — William M. Conley, Judge.\n ____________________\n\n ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 21, 2019\n ____________________\n\n Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.\n FLAUM, Circuit Judge. Todd D’Antoni received an en-\nhanced sentence under the career-oﬀender provision of the\n1990 United States Sentencing Guidelines, based on a prior\nfelony drug conviction and a prior felony “crime of violence”\nconviction. See U.S.S.G. § 4B1.1 (1990). Relevant here, the pro-\nvision’s “crime of violence” deﬁnition included a residual\nclause, encompassing any felony “involv[ing] conduct that\n\f2 No. 18-1358\n\npresent[ed] a serious potential risk of physical injury to an-\nother.” Id. § 4B1.2(1)(ii). The Guidelines were mandatory as\napplied to D’Antoni because he was sentenced well before the\nSupreme Court’s decision in United States v. Booker, 543 U.S.\n220 (2005), which held the Guidelines must be advisory to\ncomply with the Constitution.\n Following Johnson v. United States, 135 S. Ct. 2551 (2015), in\nwhich the Supreme Court held the identical Armed Career\nCriminal Act (“ACCA”) residual clause “violent felony” deﬁ-\nnition was unconstitutionally vague, D’Antoni brought a\n28 U.S.C. § 2255 motion seeking resentencing. He argued\nJohnson applied to make § 4B1.2’s residual clause “crime of\nviolence” deﬁnition unconstitutionally vague, and he claimed\nthe sentencing court considered one of his predicate convic-\ntions—conspiracy to kill a government witness—a crime of\nviolence only under the residual clause. Although in Beckles v.\nUnited States, 137 S. Ct. 886 (2017), the Supreme Court held\nthat Johnson did not extend to the post-Booker advisory Guide-\nlines residual clause, in Cross v. United States, 892 F.3d 288 (7th\nCir. 2018), we held that Johnson did render the pre-Booker man-\ndatory Guidelines residual clause unconstitutionally vague.\n At issue in this case is whether D’Antoni’s sentence should\nnevertheless be aﬃrmed because “conspiracy,” “murder,”\nand “manslaughter” were listed as crimes of violence in the\napplication notes to the 1990 version of § 4B1.2. Our unani-\nmous en banc decision in United States v. Rollins, 836 F.3d 737\n(7th Cir. 2016), answers this question: The application notes’\nlist of qualifying crimes is valid only as an interpretation of\n§ 4B1.2’s residual clause, and because Cross invalidated that\nresidual clause, the application notes no longer have legal\nforce. Accordingly, D’Antoni is entitled to resentencing.\n\fNo. 18-1358 3\n\n I. Background\n A. Convictions and Sentences\n In 1987, the government charged D’Antoni with selling co-\ncaine to a juvenile resulting in her death, in violation of\n21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 845(a). While in jail\npending charges, D’Antoni oﬀered another inmate $4,000 and\ntwo ounces of cocaine to kill a government witness related to\nthe cocaine charge. The inmate agreed, and D’Antoni gave\nhim instructions to contact D’Antoni’s brother and a code-\nfendant. However, instead of following D’Antoni’s instruc-\ntions, the inmate went to the police and agreed to cooperate.\nThe government then charged D’Antoni with conspiracy to\nkill a government witness, in violation of 18 U.S.C. § 371.\n D’Antoni simultaneously pleaded guilty to both the co-\ncaine distribution charge and the conspiracy charge, and in\nDecember 1987, he was sentenced in both cases. The district\ncourt imposed a 35-year term of imprisonment on the drug\ncharge and a consecutive 5-year term of imprisonment on the\nconspiracy charge. We aﬃrmed those convictions and sen-\ntences. United States v. D’Antoni, 856 F.2d 975 (7th Cir. 1988).\n In October 1990, the government charged D’Antoni with\nconspiracy to distribute LSD while in jail, in violation of\n21 U.S.C. § 846. A jury convicted D’Antoni in February 1991.\nPursuant to the drug-quantity Guideline, U.S.S.G. § 2D1.1\n(1990), the presentence report calculated a mandatory Guide-\nlines range of 51–63 months’ imprisonment.\n The government objected. It argued D’Antoni should re-\nceive an enhanced sentence under the Guidelines career-of-\nfender provision. The Guidelines classiﬁed a defendant as a\ncareer oﬀender if: (1) he is at least eighteen years old when he\n\f4 No. 18-1358\n\ncommitted the instant oﬀense; (2) the “instant oﬀense of con-\nviction is a felony that is either a crime of violence or a con-\ntrolled substance oﬀense”; and (3) he “has at least two prior\nfelony convictions of either a crime of violence or a controlled\nsubstance oﬀense.” Id. § 4B1.1. The 1990 Guidelines deﬁned\n“crime of violence” as follows:\n (1) The term “crime of violence” means any of-\n fense under federal or state law punishable\n by imprisonment for a term exceeding one\n year that—\n (i) has as an element the use, attempted use,\n or threatened use of physical force\n against the person of another, or\n (ii) is burglary of a dwelling, arson, or extor-\n tion, involves use of explosives, or other-\n wise involves conduct that presents a serious\n potential risk of physical injury to another.\nId. § 4B1.2(1) (emphasis added). Section 4B1.2(1)(i) is referred\nto as the “elements clause,” the nonemphasized text in\n§ 4B1.2(1)(ii) is referred to as the “enumerated oﬀenses\nclause,” and the emphasized text in § 4B1.2(1)(ii) is referred to\nas the “residual clause.” Also relevant are application notes 1\nand 2 to the 1990 version of § 4B1.2, which state:\n 1.The terms “crime of violence” and “controlled\n substance oﬀense” include the oﬀenses of aid-\n ing and abetting, conspiring, and attempting\n to commit such oﬀenses.\n 2.“Crime of violence” includes murder, man-\n slaughter, [and other oﬀenses].\n\fNo. 18-1358 5\n\nId. § 4B1.2 cmt. nn.1, 2. 1 The government argued D’Antoni\nwas a career oﬀender because his cocaine conviction was a\ncontrolled substance oﬀense and his conspiracy to kill a gov-\nernment witness conviction was a crime of violence.\n The district court agreed. Pursuant to § 4B1.1, it calculated\nD’Antoni’s mandatory Guidelines range as 262–327 months’\nimprisonment. The court imposed a 264-month sentence, to\nbe served consecutively with the prior 40-year sentence. In de-\nciding that the conspiracy to kill a government witness con-\nviction was a “crime of violence,” the court did not explain its\nreasoning; it did not specify whether it relied on § 4B1.2’s re-\nsidual clause, elements clause, commentary, or some combi-\nnation of those parts of the provision. D’Antoni appealed,\ncontending the court erred in classifying him as a career of-\nfender because his two prior convictions were “related” and\nshould not have been counted separately. We disagreed and\naﬃrmed the sentence. United States v. D’Antoni, 980 F.2d 733,\n1992 WL 357229 (7th Cir. Dec. 3, 1992) (unpublished).\n B. First 28 U.S.C. § 2255 Motion\n On October 26, 2010, D’Antoni filed a § 2255 motion to va-\ncate his sentence, arguing his career-offender sentence was\ndetermined without prior notice of the underlying convic-\ntions, in violation of 21 U.S.C. § 851. The district court denied\n\n\n\n 1 Section 4B1.2 has been subsequently amended. Until 2016, there\nwere no substantive changes, but the provision was renumbered (e.g.,\n§ 4B1.2(1)(ii) was relabeled § 4B1.2(a)(2)) and the contents of 1990 applica-\ntion notes 1 and 2 were combined into application note 1. In 2016, the Sen-\ntencing Commission removed the residual clause and added a speciﬁc list\nof crimes.\n\f6 No. 18-1358\n\nthe motion as untimely and denied a certificate of appealabil-\nity. We also denied a certificate of appealability.\n C. Successive 28 U.S.C. § 2255 Motion\n On June 26, 2015, the Supreme Court held the ACCA re-\nsidual clause deﬁnition of “violent felony,” 18 U.S.C.\n§ 924(e)(2)(B)(ii)—which is identical to the Guidelines resid-\nual clause “crime of violence” deﬁnition—unconstitutionally\nvague. Johnson, 135 S. Ct. at 2556–60. Less than a year later, the\nCourt held that “Johnson announced a substantive rule that\nhas retroactive eﬀect in cases on collateral review.” Welch v.\nUnited States, 136 S. Ct. 1257, 1268 (2016). In light of Johnson\nand Welch, we granted D’Antoni permission to ﬁle a succes-\nsive § 2255 motion. He maintained his career-oﬀender sen-\ntence was invalid because: (1) Johnson applied to invalidate\n§ 4B1.2’s residual clause as unconstitutionally vague; and\n(2) his prior conviction for conspiracy to kill a government\nwitness could only be considered a crime of violence under\nthe residual clause and thus no longer qualiﬁed as a predicate\noﬀense. The district court stayed the proceedings until the Su-\npreme Court decided Beckles on March 6, 2017. In Beckles, the\nCourt held that the advisory Sentencing Guidelines are not\nsubject to vagueness challenges, and therefore, at least the\npost-Booker advisory version of § 4B1.2(a)’s residual clause is\nnot void for vagueness. 137 S. Ct. at 893–95.\n Relying on Beckles, the government argued Johnson did not\napply retroactively to render the residual clause of the pre-\nBooker mandatory Guidelines unconstitutionally vague. Alter-\nnatively, the government suggested that even if Johnson retro-\nactively voided the mandatory Guidelines residual clause,\nD’Antoni’s prior conviction for conspiring to kill a govern-\nment witness still qualiﬁed as a predicate oﬀense because\n\fNo. 18-1358 7\n\n§ 4B1.2’s application notes listed conspiracy, murder, and\nmanslaughter as crimes of violence.\n On January 17, 2018, the district court denied D’Antoni’s\npetition. It concluded that, based on Beckles, D’Antoni could\nnot make a vagueness challenge to the pre-Booker mandatory\nGuidelines, and therefore, his prior conspiracy conviction re-\nmained a crime of violence pursuant to the residual clause.\nHowever, the court granted a certiﬁcate of appealability.\n D. This Appeal\n D’Antoni timely ﬁled a notice of appeal, which we stayed\npending our decision in Cross. In Cross, we held that “Beckles\napplies only to advisory guidelines, not to mandatory sen-\ntencing rules,” and therefore, “the guidelines residual clause\nis unconstitutionally vague insofar as it determined manda-\ntory sentencing ranges for pre-Booker defendants.” 892 F.3d at\n291; see also id. at 306 (“[U]nlike the advisory guidelines, the\nmandatory guidelines implicated the ‘twin concerns’ of the\nvagueness doctrine. The mandatory guidelines are thus sub-\nject to attack on vagueness grounds.” (citation omitted)). We\nalso held that Johnson applies retroactively to § 2255 motions\nchallenging the constitutionality of the mandatory Guidelines\nresidual clause on collateral review. Id. at 306–07.\n In light of Cross, on September 13, 2018, the government\nﬁled a statement of position. It emphasized that Cross did not\n“resolve the government’s argument … that D’Antoni re-\nmains a career oﬀender even after Johnson, based on the valid-\nity of his conspiracy conviction as a listed oﬀense” in § 4B1.2’s\ncommentary. Additionally, the government pointed out that\n\f8 No. 18-1358\n\n“Cross did not have occasion to address the speciﬁc retroac-\ntivity requirement for successive § 2255 motions like D’An-\ntoni’s, which are governed by 28 U.S.C. § 2255(h)(2).”\n II. Discussion\n Because this appeal asks us to resolve a question of law,\nwe review the district court’s denial of D’Antoni’s § 2255 mo-\ntion de novo. Delatorre v. United States, 847 F.3d 837, 843 (7th\nCir. 2017).\n The government emphasizes that the sentencing court did\nnot mention the residual clause when it determined the con-\nspiracy to kill a government witness conviction qualiﬁed as a\npredicate crime of violence for purposes of considering D’An-\ntoni a career oﬀender. It asks us to deny relief because, in its\nview, there is nothing in the record to show that D’Antoni was\nactually sentenced under the residual clause, as opposed to\nunder the elements clause or § 4B1.2’s commentary. It points\nout that the application notes list conspiracy, murder, and\nmanslaughter as examples of “crime[s] of violence,” and\ntherefore asserts that “as applied to D’Antoni, the residual\nclause cannot be unconstitutionally vague.” We disagree.\nGiven our holdings in Cross and Rollins, we must grant relief. 2\n\n\n 2 The government also contends Cross does not apply because Cross\n“involved two initial § 2255 petitioners,” while D’Antoni is a successive\npetitioner. It points out that because this is a successive petition, D’Antoni\ncan get relief only if the Supreme Court itself makes a previously unavail-\nable new rule of constitutional law retroactive to cases on collateral re-\nview. See 28 U.S.C. § 2255(h)(2). The government posits that no Supreme\nCourt opinion has addressed the constitutionality of the residual clause in\nthe pre-Booker mandatory Guidelines, so D’Antoni cannot beneﬁt from\nCross. However, as the government concedes, “the broadly worded rea-\nsoning in Cross precludes this particular argument.” See Cross, 892 F.3d at\n\fNo. 18-1358 9\n\n The government insists that “the relevant commentary did\nnot purport to interpret the former residual clause,” but in-\nstead “sets out a deﬁnition of ‘crime of violence’ in addition\nto the deﬁnition in Section 4B1.2’s main text.” It thus claims\nthat “the oﬀenses listed in the application notes … qualify as\ncrimes of violence without determining whether each oﬀense\nsatisﬁed a discrete portion of USSG § 4B1.2(1)’s deﬁnition.”\nThe government is wrong. Such a view of Guidelines com-\nmentary is expressly foreclosed by the Supreme Court’s deci-\nsion in Stinson v. United States, 508 U.S. 36 (1993), and our in-\nterpretation of Stinson in Rollins.\n In Rollins, we considered “whether [a] conviction counts\nas a predicate crime of violence based on [an] application note\nalone.” 836 F.3d at 742. We began by explaining that there are\n“‘three varieties’ of text in the Guidelines”: (1) the “‘guideline\nprovision[s] [themselves],’” which “‘are the equivalent of leg-\nislative rules adopted by federal agencies’” and must be “sub-\nmitted to Congress” for review and approval; (2) “the Sen-\ntencing Commission’s policy statements, which have much\nthe same eﬀect as the Guidelines themselves”; and (3) “the\nCommission’s commentary,” which “interpret[s] the Guide-\nlines and explain[s] how they are to be applied.” Id. (quoting\nand citing Stinson, 508 U.S. at 41–42, 45). We thus reasoned\nthat “application notes are interpretations of, not additions to,\nthe Guidelines themselves,” and “an application note has no\nindependent force.” Id. Consequently, “the list of qualifying\ncrimes in application note 1 to § 4B1.2 is enforceable only as\n\n\n\n307 (holding that we treat Johnson as “retroactive[] when applied to the\nmandatory guidelines”). Thus, the government admits that it “asserts the\nargument solely to preserve it for any potential further review.”\n\f10 No. 18-1358\n\nan interpretation of the deﬁnition of the term ‘crime of vio-\nlence’ in the guideline itself,” and “[m]ore speciﬁcally,” as an\ninterpretation of § 4B1.2’s “residual clause.” Id.\n The government next maintains that even if the commen-\ntary was “intended to interpret the former residual clause,\n[its] terms still defeat a vagueness challenge” because it “spe-\nciﬁcally identiﬁes oﬀenses that qualify as crimes of violence.”\nTherefore, according to the government, D’Antoni was not\n“deprived of fair notice or subjected to arbitrary enforcement\nby the straightforward application of the commentary’s ex-\npress terms.” Put another way, the government contends that\n“[a]pplying the clearly stated oﬀenses in the commentary …\nproduces none of the constitutional concerns that the vague-\nness doctrine is designed to prevent.”\n Cross and Rollins together preclude this approach. In Cross,\nwe excised the residual clause from the pre-Booker Guidelines\nas unconstitutionally vague. 892 F.3d at 306. And in Rollins,\nwe explained that Guidelines commentary “has no legal force\nstanding alone.” 836 F.3d at 742. Thus, once “the residual\nclause drops out,” the application note’s list of crimes is no\nlonger interpreting any part of § 4B1.2’s deﬁnition of “crime\nof violence.” Id. It is therefore “in eﬀect adding to the deﬁni-\ntion[,] [a]nd that’s necessarily inconsistent with the text of the\nguideline itself.” Id.; see also United States v. Soto-Rivera, 811\nF.3d 53, 60 (1st Cir. 2016) (“There is simply no mechanism or\ntextual hook in the Guideline that allows us to import oﬀenses\nnot speciﬁcally listed therein into § 4B1.2(a)’s deﬁnition of\n‘crime of violence.’ With no such path available …, doing so\nwould be inconsistent with the text of the Guideline.”); United\nStates v. Bell, 840 F.3d 963, 968 (8th Cir. 2016) (same), overruled\n\fNo. 18-1358 11\n\non other grounds by United States v. Swopes, 886 F.3d 668 (8th\nCir. 2018) (en banc). 3\n The government seeks to get around Rollins by arguing\nthat, after Beckles, we are no longer bound by its holding. It\n\n 3 In United States v. Miller, 868 F.3d 1182 (10th Cir. 2017), the Tenth\nCircuit adopted the government’s view. That court declined to address the\nquestion we answered in Cross—whether the pre-Booker Guidelines are\namenable to vagueness challenges—instead holding that regardless, the\ndefendant could not “mount a vagueness challenge to his enhanced sen-\ntence, because the enumeration of [his prior conviction] in the commen-\ntary to the career-oﬀender guideline suﬃciently narrows the application\nof the residual clause to [the defendant’s] conduct.” Id. at 1187. The court\nexplained that because the defendant’s “conduct was clearly proscribed,\nhe [could] not complain he was denied fair notice of the possibility of en-\nhanced punishment,” and “there was no risk of arbitrary enforcement by\njudges.” Id. at 1189. Concurring in Beckles, Justices Ginsburg and So-\ntomayor also advocated for this method of analyzing vagueness chal-\nlenges to the Guidelines. See Beckles, 137 S. Ct. at 898 (Ginsburg, J., concur-\nring) (“[B]ecause [the defendant’s] conduct was ‘clearly proscribed,’ he …\n‘cannot complain of the vagueness of the [guideline] as applied to the con-\nduct of others.’” (last alteration in original) (quoting Holder v. Humanitarian\nLaw Project, 561 U.S. 1, 18–19 (2010))); id. (Sotomayor, J., concurring)\n(“[T]he commentary under which [the defendant] was sentenced was not\nunconstitutionally vague.”). The Tenth Circuit asserts that we erred in Rol-\nlins by “ﬁrst excis[ing] the residual clause and then conclud[ing] the com-\nmentary listing [the prior conviction] was not an interpretation of the ele-\nments or enumerated oﬀenses clauses.” Miller, 868 F.3d at 1188 n.4. In the\nTenth Circuit’s view, our path “confuses the ‘normal order of operations’\nin analyzing vagueness challenges,” as “the Supreme Court ‘has routinely\nrejected, in a variety of contexts, vagueness claims where a clarifying con-\nstruction rendered an otherwise enigmatic provision clear as applied to\nthe challenger.’” Id. at 1188 (quoting Beckles, 137 S. Ct. at 897 n.* (Ginsburg,\nJ., concurring)). The government asks us to rely on the Tenth Circuit’s de-\ncision in Miller (and Justices Ginsburg’s and Sotomayor’s concurrences in\nBeckles) to aﬃrm D’Antoni’s sentence. We cannot do so, however, because\nCross and Rollins foreclose this approach.\n\f12 No. 18-1358\n\nsuggests we should instead rely on our 2012 decision in United\nStates v. Raupp, in which we held that conspiracy to commit\nrobbery is a “crime of violence” because “conspiracy” is listed\nin § 4B1.2’s commentary, and “the text of § 4B1.2(a) does not\ntell us, one way or another, whether inchoate oﬀenses are in-\ncluded or excluded.” 677 F.3d 756, 759 (7th Cir. 2012).\n To be sure, we decided Rollins in conjunction with United\nStates v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en banc), where\nwe held that after Johnson, the post-Booker advisory Guide-\nlines residual clause is unconstitutionally vague. Id. at 721.\nAnd Beckles expressly abrogated Hurlburt. Indeed, while we\noverruled Raupp in Rollins, see 836 F.3d at 743, in Hill v. United\nStates, we commented that Beckles’s “[e]limination of vague-\nness challenges to the Guidelines undermines Rollins as well\nas Hurlburt, so we treat Raupp … as having unimpaired prec-\nedential force.” 877 F.3d 717, 719 (7th Cir. 2017).\n As D’Antoni aptly observes, however, “Beckles does not\ntouch Rollins’[s] holding about the role of Guidelines com-\nmentary.” The government too concedes that “Beckles did not\nreach the commentary issue.” And moreover, our statement\nin Hill is not controlling because it suggested that Beckles\nbroadly eliminated all vagueness challenges. But we decided\nHill before Cross, and in Cross, we revived vagueness chal-\nlenges—like the one here—to the pre-Booker residual clause.\n892 F.3d at 306. While we recognize other circuits have held\nto the contrary and concluded, post-Beckles, that post-convic-\ntion relief is not available to defendants sentenced under the\n\fNo. 18-1358 13\n\nmandatory Guidelines residual clause, 4 we are, of course,\nbound by Cross.\n In short, after Cross, for cases involving defendants sen-\ntenced pursuant to the pre-Booker mandatory Guidelines, we\nface the same situation we faced in Rollins. In such instances,\n“our holding in Raupp has lost its tether to the text of the ca-\nreer-oﬀender guideline,” and “Raupp’s premise”—“that the\napplication note’s list of qualifying crimes is a valid interpre-\ntation of the guideline’s residual clause”—“has been undone\nby intervening legal developments.” Rollins, 836 F.3d at 739,\n743. Rather, “because the residual clause in § 4B1.2[(1)(ii)\n(1990)] is unconstitutional, the application note’s list of quali-\nfying crimes is inoperable and cannot be the basis for apply-\ning the career-oﬀender enhancement.” See id. at 742.\n Finally, the government argues the sentencing court may\nhave considered D’Antoni’s conspiracy to kill a government\nwitness conviction a crime of violence under § 4B1.2’s ele-\nments clause because the object of the conspiracy ﬁts within\nthat clause. Whether a crime ﬁts within the elements clause\n“begins and ends with the elements of the crime.” Flores v.\nAshcroft, 350 F.3d 666, 671 (7th Cir. 2003) (discussing the iden-\ntical elements clause in 18 U.S.C. § 16(a)). D’Antoni was con-\nvicted of conspiracy under 18 U.S.C. § 371, which required the\n\n\n 4 See United States v. Pullen, 913 F.3d 1270, 1283–84 (10th Cir. 2019);\nUnited States v. Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018); Robinson v.\nUnited States, 736 F. App’x 599, 599 (6th Cir. 2018) (citing Raybon v. United\nStates, 867 F.3d 625, 630 (6th Cir. 2017)); Russo v. United States, 902 F.3d 880,\n883–84 (8th Cir. 2018); United States v. Green, 898 F.3d 315, 321–23 (3d Cir.\n2018); Upshaw v. United States, 739 F. App’x 539, 541 (11th Cir. 2018) (per\ncuriam) (citing In re Griﬃn, 823 F.3d 1350, 1354–56 (11th Cir. 2016) (per\ncuriam)); United States v. Brown, 868 F.3d 297, 301–03 (4th Cir. 2017).\n\f14 No. 18-1358\n\ngovernment to prove three elements: “(1) an agreement to ac-\ncomplish an illegal objective against the United States; (2) one\nor more overt acts in furtherance of the illegal purpose; and\n(3) the intent to commit the substantive oﬀense.” United States\nv. Hills, 618 F.3d 619, 637 (7th Cir. 2010) (quoting United States\nv. Cyprian, 23 F.3d 1189, 1201 (7th Cir. 1994)). Critically, none\nof those elements required the government to prove “the use,\nattempted, use, or threatened use of physical force.” U.S.S.G.\n§ 4B1.2(1)(i) (1990); cf. Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir.\n1997) (“An oﬀense such as conspiracy [does not have] the use\nof physical force as an element … .”). Thus, § 371 conspiracy\nis not a “crime of violence” as deﬁned by the elements clause. 5\n In sum, because D’Antoni’s conspiracy conviction did not\ninclude force as an element, its only possible connection to\n§ 4B1.2’s deﬁnition of “crime of violence” was the residual\nclause. But as noted above, Cross excised the residual clause\nfrom the pre-Booker mandatory Guidelines, and without the\nresidual clause, the application notes have no legal force.\nD’Antoni is therefore entitled to resentencing.\n\n\n\n\n 5We would reach a diﬀerent conclusion if the government had to\nprove the elements of the underlying oﬀense. See United States v. Gloss, 661\nF.3d 317, 319 (6th Cir. 2011) (“If a conviction for … conspiracy requires the\ngovernment to prove the elements of the underlying violent felony, such\na conviction will itself qualify as a violent felony under the [elements\nclause of the ACCA]. If, by contrast, the government may obtain a convic-\ntion by proving only that the defendant agreed to participate in violent\ncrime or solicited it—and not that some person committed or attempted\nto commit the underlying oﬀense—conspiracy … tends to be outside the\nreach of the [elements clause], and generally will be deemed a violent fel-\nony only if it qualiﬁes under the residual clause.” (citations omitted)).\n\fNo. 18-1358 15\n\n III. Conclusion\n For the foregoing reasons, we REVERSE the judgment of the\ndistrict court and REMAND with instructions to grant D’An-\ntoni’s successive § 2255 motion and for resentencing in ac-\ncordance with this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370098/", "author_raw": "Joel Martin Flaum"}]}	FLAUM	BARRETT	SCUDDER	1	{"FLAUM": ", Circuit", "BARRETT": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592845/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,195		Julio de Lima Silva v. State of Wisconsin, Department	2019-02-22	18-2561	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "Joel Martin Flaum", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2561\nJULIO DE LIMA SILVA,\n Plaintiff-Appellant,\n v.\n\nSTATE OF WISCONSIN, DEPARTMENT OF CORRECTIONS, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 17-cv-00128 — William M. Conley, Judge.\n ____________________\n\n ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 22, 2019\n ____________________\n\n Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.\n FLAUM, Circuit Judge. Plaintiff-appellant Julio de Lima\nSilva, a Brazilian citizen who self-identifies as Latino, worked\nas a correctional sergeant for the State of Wisconsin, Depart-\nment of Corrections (“DOC”). His use of force on an inmate\ntriggered an internal review process and ultimately led to his\ndischarge. The individual defendants—Quala Champagne,\nthe Warden of Wisconsin Correctional Center System\n\f2 No. 18-2561\n\n(“WCCS”), Andrea Bambrough, the Human Resources Direc-\ntor of WCCS, and David Hicks, a Corrections Unit Supervisor\nat Columbia Correctional Institution—played various roles in\nthat review process. To challenge his discharge, plaintiff filed\nthis lawsuit, bringing discrimination claims against the DOC\nunder Title VII, 42 U.S.C. § 2000e–2(a)(1), (Count I); against\nthe individual defendants and the DOC under 42 U.S.C.\n§ 1983, alleging a violation of the Equal Protection Clause\n(Counts II and III, respectively); and against all defendants\nunder 42 U.S.C. § 1981 (Count IV). The district court granted\ndefendants summary judgment on all counts. For the follow-\ning reasons, we affirm in part and reverse and remand in part.\nWe reverse the district court’s award of summary judgment\nto the DOC on plaintiff’s Title VII claim and to Champagne\non plaintiff’s equal protection claim brought pursuant to\n§ 1983, and we otherwise affirm the district court’s judgment.\n I. Background\n A. Factual Background\n Plaintiﬀ’s career with the DOC began in the summer of\n2012. In his application to the DOC, he identiﬁed his race and\nethnicity as Latino. He also indicated that he was from Brazil.\nOn July 1, 2013, he became a correctional sergeant in the Chal-\nlenge Incarceration Program (“CIP”) at the St. Croix Correc-\ntional Center (“St. Croix”). Of the approximately thirty em-\nployees that comprised the security staﬀ at St. Croix in 2014,\nplaintiﬀ was the only nonwhite employee.\n The CIP is an alcohol and drug abuse program that eligible\ninmates can complete in hopes of receiving early release from\ntheir sentences. It is a military-style “boot camp” with strict\n\fNo. 18-2561 3\n\nrules that are unique to the program. Inmates agree to be sub-\nject to these special rules when they enroll in the CIP.\n 1. Plaintiﬀ’s Use of Force\n On June 23, 2014, plaintiﬀ worked the night shift with Ser-\ngeant Paul Fulton. While making rounds, Fulton twice ob-\nserved inmate Fernando Haro covering his head in violation\nof the CIP’s rules. Fulton woke Haro up on both occasions to\ninstruct him to keep his head uncovered. After the second in-\nstruction, Haro used profanities and told Fulton that he was\ndone with the program and wanted to leave, which violated\nanother rule. Plaintiﬀ overheard arguing voices and went to\nassist Fulton. Plaintiﬀ told Haro to calm down and to follow\norders. Eventually, Haro complied. Plaintiﬀ and Fulton then\nreturned to the lower control room where they discussed the\nsituation. At that time, Fulton told plaintiﬀ what had hap-\npened with Haro before plaintiﬀ arrived on the scene.\n Meanwhile, the disturbance between Haro and Fulton had\nawakened the other inmates, and several of those inmates\nnow needed to use the restroom. In the CIP, inmates may only\nuse the restroom if they request and obtain permission from\nthe oﬃcers. To do so, they must stand in the “position of at-\ntention” and wait for a correctional sergeant to grant them\npermission. An inmate is in the “position of attention” when\nhis arms are down at his sides and his feet are in the shape of\na “V” with his heels touching.\n Fulton was in the process of granting individual inmates\npermission to use the restroom when Haro got up from his\nbed and, without standing at attention or seeking permission,\ngrabbed his toiletries, and walked toward the restroom. Nei-\nther Fulton nor plaintiﬀ granted Haro permission to do so.\n\f4 No. 18-2561\n\nFulton and plaintiﬀ discussed how Haro’s refusal to follow\nthe CIP’s rules could cause an altercation among inmates\ngiven that Haro had cut in line to use the restroom. They de-\ncided that plaintiﬀ would talk to Haro.\n As plaintiﬀ approached Haro from behind, he directed\nHaro to go back to his bunk in a loud voice. 1 When Haro did\nnot comply, plaintiﬀ gave the directive two more times, esca-\nlating the volume of his voice each time. Plaintiﬀ moved into\na position of control behind Haro and observed that Haro was\nnot in the position of attention. Plaintiﬀ told Haro that he had\nalready ordered him to return to his bunk three times and\nHaro was not in a position of attention. Plaintiﬀ observed\nHaro look over his shoulder at him and state, “go fuck your-\nself, you son of a bitch.” Plaintiﬀ perceived this over-the-\nshoulder glance from Haro as a “target glance,” which is\nwhen a subject looks to see where the target is and to assess\nthe target.\n There is a dispute over what happened after Haro glanced\nat plaintiﬀ. 2 Plaintiﬀ remembers that Haro clenched his ﬁsts\nand raised his arms into a ﬁghter stance. Because of this per-\nception, plaintiﬀ approached Haro from the back-left side and\napplied a wrist lock to Haro. When plaintiﬀ felt Haro resist\nthe hold, he decentralized Haro, while telling Haro to “stop\nresisting.” 3 Plaintiﬀ says he decentralized Haro because he\n\n 1 A security camera captured plaintiff’s use of force, but the video\ndoes not have audio of the incident.\n 2 Several DOC employees reviewed the video and developed different\n\nopinions about what they saw happen.\n 3An officer “decentralizes” an inmate when he physically directs an\ninmate to the floor.\n\fNo. 18-2561 5\n\nthought that a potential attack was imminent. Plaintiﬀ also\nsays he attempted to control the speed of Haro’s descent by\nusing a circular motion. It is undisputed that Haro was not\ninjured during the decentralizing process.\n While Haro was on the ground, plaintiﬀ positioned him-\nself at Haro’s side, with his knee on the ground. Both of plain-\ntiﬀ’s hands cupped Haro’s arm in a compliance hold. Plaintiﬀ\nasked Haro if he was okay, to which Haro replied yes, and\nplaintiﬀ oﬀered Haro medical assistance. Still on the ground,\nHaro engaged in “passive resistance” 4 by commenting to\nplaintiﬀ that “this is all bullshit,” calling plaintiﬀ ma’am, and\nusing profanities. As a result, plaintiﬀ kept Haro on the\nground to calm him down. Fulton, who had arrived on the\nscene, did not feel that plaintiﬀ had Haro on the ground too\nlong.\n Once Haro calmed down (and over two minutes had\npassed), plaintiﬀ advised Haro that he would assist Haro to\nhis feet, they would go to the lower barracks group room, and\nHaro would wait there until Captain Scott Grady arrived to\ntalk to him about what had happened. Plaintiﬀ then escorted\nHaro to the lower barracks group room. Plaintiﬀ did not place\nhandcuﬀs on Haro because he felt he had total control of him. 5\nPlaintiﬀ did not advise Haro that he could ﬁle a grievance—\nplaintiﬀ says he was not trained to give such advice after a use\n\n 4 Division of Adult Institution (“DAI”) Policy #306.07.01 defines “pas-\n\nsive resistance” as “[r]esistance from a subject which does not physically\ncounteract staff’s attempt at control and which does not create a risk of\nbodily harm to the staff or to another.”\n 5 Both Captain Grady and Superintendent JoAnn Skalski confirmed\nthat there was no requirement at St. Croix in June of 2014 that correctional\nofficers had to use handcuffs after decentralizing an inmate.\n\f6 No. 18-2561\n\nof force. It was his understanding that the supervisor would\nprovide this information to the inmate.\n When Grady reported for work at approximately 5:00 AM\non June 23, 2014, plaintiﬀ told Grady what had occurred.\nGrady instructed plaintiﬀ to write an incident report. Plaintiﬀ\nhad already started working on the incident report before\nGrady reported for work and he completed it at around 5:30\nAM.\n\n Grady read plaintiﬀ’s incident report and thought there\nwere discrepancies between what plaintiﬀ had told him and\nwhat plaintiﬀ had written in the report. This prompted Grady\nto email Superintendent JoAnn Skalski about the incident.\nSkalski, in turn, directed Grady to look at the video of the in-\ncident. After reviewing the video, Grady became concerned\nwith the way plaintiﬀ approached and handled Haro.\n One month later, Skalski contacted Human Resources to\nreport the incident. Soon thereafter, Warden Quala Cham-\npagne watched the video of the incident and had similar con-\ncerns. Defendants put plaintiﬀ on administrative suspension\non July 25, 2014—more than one month after the incident oc-\ncurred.\n 2. Plaintiﬀ’s Personnel Investigation\n Champagne ordered a personnel investigation of plain-\ntiﬀ’s use of force—it was her practice to do so whenever she\nreceived a report that a DOC employee violated a work rule.\nDuring a personnel investigation, investigators review mate-\nrials, conduct interviews, and draft a report of their ﬁndings.\nIn practice, a personnel investigation results in a packet of\neight documents and a recommendation about whether the\n\fNo. 18-2561 7\n\nfacts support any work-rule violations. At the end, if the ap-\npointing authority (here, Champagne) believes there is prob-\nable cause to discipline an employee, the personnel investiga-\ntion packet is transferred to the Employment Relations Spe-\ncialists for review.\n Champagne assigned Maria Silao-Johnson and Jeﬀ Jaeger,\nsuperintendents at other correctional facilities, to conduct\nplaintiﬀ’s personnel investigation. After reviewing video of\nthe incident, neither Silao-Johnson nor Jaeger saw Haro as-\nsume a ﬁghter stance. Plaintiﬀ says Jaeger laughed at his ac-\ncent and called him a “liar” during their interview on August\n20, 2014. Jaeger thought plaintiﬀ was being untruthful when\nplaintiﬀ wrote in his incident report: “Due to poor illumina-\ntion, his clenched ﬁst. I originally just secured his left arm. I\nhad him by his wrist but he was struggling with me and then\nI decentralized him.”\n Once they completed the investigation, Silao-Johnson and\nJaeger drafted a “Summary of Investigation.” This report con-\ncluded that plaintiﬀ potentially violated Work Rule #2 for us-\ning excessive force, Work Rule #6 for providing false infor-\nmation during the investigation, and Work Rule #11 for\nthreatening or attempting to inﬂict bodily harm on an inmate\nwithout provocation or reasonable justiﬁcation. It also deter-\nmined that plaintiﬀ may have violated executive and admin-\nistrative directives regarding the proper use of force.\n In turn, David Hicks, as the Employment Relations Spe-\ncialist on the case, reviewed the personnel investigation\npacket and determined the investigation was thorough, unbi-\nased, and complete. He presented his ﬁndings to the Infrac-\ntion Review Team (“IRT”) and recommended that the case\nproceed to a predisciplinary meeting. The purpose of the IRT\n\f8 No. 18-2561\n\nis to ensure that the DOC consistently administers discipline.\nIt reviews the personnel investigation interview and other rel-\nevant evidence in order to decide if work rules were in fact\nviolated and whether a predisciplinary meeting should fol-\nlow. If the IRT decides work rules were violated, the matter\nproceeds to the Disciplinary Action Review Team (“DART”).\n In plaintiﬀ’s case, Champagne, Bambrough, and a security\ndirector were on the IRT. They decided that plaintiﬀ used ex-\ncessive force when other options were available to him. As a\nresult, Hicks searched Human Resources’s disciplinary data-\nbase in order to prepare a list of other employees who have\nincurred discipline for similar misconduct. The DART uses\nthat list, which includes information about the individual em-\nployee’s rule violation, discipline received, rank, and employ-\ning institution, as a general guide while it evaluates the rele-\nvant employee’s rule violation(s). At the end of its review pro-\ncess, the DART determines if discipline is going to be imposed\nand, if so, at what level. Ultimately, the appointing authority\ndecides what level of discipline to impose.\n At plaintiﬀ’s DART meeting, which involved the same IRT\nmembers, Hicks gave examples where correctional oﬃcers\nhad engaged in excessive use of force and had not been termi-\nnated. There was only one incident after 2010 where excessive\nuse of force resulted in the oﬃcer’s termination. 6 According\nto Hicks, the DART had a long discussion about these other\ndiscipline cases and members of the DART indicated that\nmaybe the other cases should have resulted in termination.\n\n\n\n 6Hicks only considered incidents after 2010 because the work rules\nchanged in 2010.\n\fNo. 18-2561 9\n\n Finally, plaintiﬀ’s case was sent to a Management Advi-\nsory Team (“MAT”) to review whether the appointing author-\nity could impose a discipline above the policy recommenda-\ntion. Under DOC policy, discipline should be assigned ac-\ncording to the progression schedule outlined in Executive Di-\nrective #2. For example, a ﬁrst violation results in a written\nreprimand and a second violation results in a one-day sus-\npension without pay. Based on this schedule, it ordinarily\ntakes six violations before an employee’s punishment would\nwarrant discharge. And according to state human resources\nrules eﬀective in 2014, discipline involving a ﬁve-day suspen-\nsion or greater, or any skips in the progression, would un-\ndergo an additional review by a MAT.\n To prepare the MAT to review plaintiﬀ’s case, Hicks\ndrafted a summary document showing plaintiﬀ’s seniority\ndate, classiﬁcation, where he worked, any prior discipline,\nany performance evaluations, what the appointing authority\nwas requesting, why it was requested, and whether or not\nplaintiﬀ had acted like that in the past. As discussed below,\nplaintiﬀ ultimately received discipline that required a signiﬁ-\ncant skip in the progression.\n 3. Plaintiﬀ’s Use of Force Review\n Separate from the personnel investigation, Champagne\nalso requested an independent “Use of Force Review,”\nwherein experts determine if the use of force was appropriate\nand proper. The experts review incident reports written about\n\f10 No. 18-2561\n\nthe incident, view videos or photos related to the incident,\nand conduct interviews.\n Experts Jason Achterberg, the Security Director at Stanley\nCorrectional Institution, and Hans Kuster, a Captain at Osh-\nkosh Correctional Institution, reviewed plaintiﬀ’s use of force.\nTheir review consisted of conducting a site visit to learn more\nabout the CIP, watching the video of the incident, and inter-\nviewing plaintiﬀ and Fulton. In his interview with these ex-\nperts, plaintiﬀ explained that he saw Haro give him a target\nglance and that he felt Haro was going to hit him. Achterberg\nand Kuster, however, felt plaintiﬀ had the opportunity to dis-\nengage; they did not feel that Haro was an immediate threat.\nAccordingly, they concluded that plaintiﬀ used unreasonable\nforce to control Haro and they submitted a report to that eﬀect\nto Champagne.\n 4. Plaintiﬀ’s Discharge\n Champagne sent plaintiﬀ a letter dated December 22,\n2014, informing him that he was discharged from his employ-\nment at the DOC. She explained that the basis for the dis-\ncharge was his violation of three DOC Work Rules:\n Work Rule #2: Failure to comply with written\n policies and procedures including but not lim-\n ited to Executive Directives and Administrative\n Directives; and\n Work Rule #6: Falsiﬁcation of records, know-\n ingly giving false information or knowingly\n permitting, encouraging or directing others to\n do so. Failing to provide truthful, accurate and\n complete information when required; and\n\fNo. 18-2561 11\n\n Work Rule #11: Threatening, attempting or in-\n ﬂicting bodily harm on another employee, in-\n mate, juvenile, oﬀender or the public.\nThe letter further explained that the decision to charge him\nwith these rule violations stemmed from information learned\nthrough the personnel investigation. In relevant part, the let-\nter described the decentralization and concluded that this was\na use of “excessive force” in violation of DAI Policy\n#306.07.01: Use of Force 7 and DAI Policy #306.07.02: Princi-\nples of Subject Control. 8 The letter also stated that the incident\nreport plaintiﬀ ﬁlled out “did not provide accurate infor-\nmation of the events leading up to [his] use of force” because\nthe video evidence showed the inmate in the position of at-\ntention and did not support plaintiﬀ’s claim that the inmate\nassumed a “ﬁght position.” Finally, the letter concluded: “Alt-\nhough you have not had any disciplinary action within the\nlast 12 months, based on the seriousness of your violations, I\nhave just cause to escalate progressive discipline to termina-\ntion.”\n\n\n\n 7 This policy describes the use of force generally; it defines “[n]on-\ndeadly force” as that “[f]orce which the user reasonably believes will not\ncreate a substantial risk of causing death or great bodily injury to another.”\nAnd it permits correctional staff to use nondeadly force “if the user of force\nreasonably believes it is immediately necessary to realize one of” several\ndefined purposes. The defined purposes include, among others: to pre-\nvent death or bodily injury to oneself or another; to prevent unlawful\ndamage to property; to control a disruptive inmate; and to enforce a DOC\nrule, a posted policy or procedure, or an order of staff member.\n 8 The “Principles of Subject Control” policy refers to a system of ver-\nbalization skills and physical alternatives that enhance security for staff\nand inmates.\n\f12 No. 18-2561\n\n Champagne was the ﬁnal decisionmaker with respect to\nthe discipline imposed on plaintiﬀ.\n 5. A Coworker’s Use of Force\n On May 15, 2014, approximately one month before plain-\ntiﬀ’s interaction with Haro, another oﬃcer—Terry Korte—\nused force on another inmate at St. Croix. Korte is a white cor-\nrectional sergeant and a citizen of the United States. Speciﬁ-\ncally, Korte pushed an inmate into a wall several times and\ngrabbed the inmate’s head with both hands because the in-\nmate was not standing in the position of attention and the in-\nmate was laughing in violation of the CIP’s rules. 9 Korte did\nnot place the inmate in handcuﬀs. After the incident, Korte\ndid not ﬁle an incident report or immediately notify a super-\nvisor. 10 Instead, Korte prepared a “learning instruction,” a\nform in which the author describes what he observed. Nota-\nbly, Korte’s learning instruction did not contain any infor-\nmation about Korte pushing the inmate into the wall or grab-\nbing the inmate’s head.\n There was a personnel investigation into Korte’s use of\nforce. 11 As part of the investigation, Korte and some inmates\nsat for interviews. Korte explained in his interview that he did\nnot remember pushing the inmate into the wall or grabbing\nthe inmate’s head, as the video indicated. Ultimately, the in-\nvestigators determined that Korte violated Work Rules #2, #4,\n\n 9Surveillance video also captured Korte’s use of force, but that video\nis not in the record.\n 10\n At his deposition, Korte explained that there was no supervisor on\nduty for him to notify.\n 11 Champagne and Bambrough were also on the IRT and the DART in\n\nKorte’s case.\n\fNo. 18-2561 13\n\nand #11. The investigation summary does not cite Korte for\nproviding false information, even though his learning instruc-\ntion omits any description of how he used force.\n Champagne was the ﬁnal decisionmaker as to Korte’s\npunishment. She sent him a letter, dated August 14, 2014, in-\nforming him that he was being suspended without pay for\none day. The basis for the suspension was his violations of\nthree DOC Work Rules #2, #4, and #11. Work Rule #4 states:\n“Negligence in the performance of assigned duties or failure\nto exercise good judgment in dealing with employees, juve-\nniles, oﬀenders or the public.” The letter then described the\nuse of force Korte applied: “You began verbally interacting\nwith the inmate; however, you continued to place your hands\non the inmate, pushing him into the wall several times, and\non one occasion during your interaction, you grabbed the in-\nmate by the head with both hands.” It did not, however, state\nthat Korte’s actions constituted excessive use of force or a vi-\nolation of DAI Policy #306.07.01: Use of Force. The letter ex-\nplained that although Korte did not have a disciplinary action\nwithin the preceding year, and although the schedule of pro-\ngression indicated that a written reprimand would be the ap-\npropriate punishment, the seriousness of his misconduct war-\nranted the harsher punishment of a one-day suspension.\n 6. Plaintiﬀ’s WERC Hearing\n Plaintiﬀ appealed the termination of his employment un-\nder Wisconsin Statute § 230.44 for review by the Wisconsin\nEmployment Relations Commission (“WERC”). A two-day\nhearing before WERC Chairman James Scott followed. On the\nﬁrst day of the hearing, August 12, 2015, the following wit-\nnesses appeared: Haro, Fulton, Grady, Silao-Johnson, Achter-\nberg, Bambrough, Champagne, Hicks, and Skalski. On the\n\f14 No. 18-2561\n\nsecond day of the hearing, August 13, 2015, the parties ques-\ntioned plaintiﬀ.\n On March 9, 2016, Chairman Scott issued his Decision and\nOrder, ordering the DOC to reinstate plaintiﬀ to his position\nwithout loss of seniority and to pay plaintiﬀ all lost wages and\nbeneﬁts less any interim earnings. In order to reach that re-\nsult, Chairman Scott made several pertinent ﬁndings. He re-\njected plaintiﬀ’s purported violation of Work Rule #11 for a\nthreat or attempt to inﬂict bodily harm because the record did\nnot support Haro’s claim of injury resulting from the incident.\nHe also rejected the purported violation of Work Rule #6 for\nfalsiﬁcation of records because he determined “the video is\nnot conclusive as to what Haro was doing immediately before\nthe ‘destabilization,’” so the video could not “directly contra-\ndict[]” plaintiﬀ’s version of the events. Thus, he concluded the\nonly basis for discipline was Work Rule #2.\n Chairman Scott then examined that purported violation\nmore closely. He decided that the DOC did not carry its bur-\nden of proving that plaintiﬀ violated Work Rule #2 because:\n(1) the DOC relied on speculative testimony from Achterberg\nabout the use of force; (2) the DOC’s witnesses had diﬀerent\nopinions about the custom or expectation of using handcuﬀs\nafter a use of force, which led him to conclude that an error of\njudgment in interpreting such “a complex set of policies” does\nnot create just cause for discharge; (3) Champagne’s explana-\ntion of the diﬀerence in treatment between plaintiﬀ’s and\nKorte’s use of force was “less than convincing” because it\nturned on plaintiﬀ’s decision to wait ﬁfteen minutes until his\nsupervisor’s shift started before reporting the incident, and\nnot on the relative violence of the two uses of force; (4) there\nwere inconsistencies in the DOC’s application of its rules and\n\fNo. 18-2561 15\n\npolicies, as Hicks’s research uncovered incidents where staﬀ\nhad used excessive force and were not terminated, but the\nDOC did not present evidence about the details of those inci-\ndents; and (5) the six-month delay between the incident and\nplaintiﬀ’s discharge suggested the DOC discharged plaintiﬀ\nonly “to avoid criticism of the delay.”\n Then, on July 28, 2016, Chairman Scott issued a Decision\nand Order on plaintiﬀ’s request for fees and costs. In order to\naward fees and costs, he had to decide whether the DOC was\n“substantially justiﬁed,” as deﬁned by Wisconsin Statute\n§ 227.485(2)(f), in taking its position that it had just cause to\ndischarge plaintiﬀ. To prove its position was substantially jus-\ntiﬁed, the DOC had to demonstrate that its decision had a rea-\nsonable basis in truth for the facts alleged, a reasonable basis\nin law for the theory promulgated, and that there was a rea-\nsonable connection between the facts alleged and the legal\ntheory advanced. Sheely v. Wis. Dep’t of Health & Soc. Servs.,\n442 N.W.2d 1, 9 (Wis. 1989). Chairman Scott decided the DOC\ncould not substantially justify its position (to discharge plain-\ntiﬀ) because the results of the DOC’s personnel investigation\nwere inconclusive. And Chairman Scott further explained:\n DOC’s apparent inability to substantially justify\n its position is compounded by its inexplicable\n diﬀerence in treatment between [plaintiﬀ] and\n coworker Terry Korte…. As discussed in the de-\n cision on the merits, the explanation for the dif-\n ference in treatment was nonsensical. DOC\n completely undermined its case by oﬀering this\n transparently false explanation for an obvious\n diﬀerential in treatment. But for that position\n this could arguably be a case where DOC made\n\f16 No. 18-2561\n\n a judgment call on a relatively close case. The\n inexplicable diﬀerential in treatment leads to\n the conclusion that there was no reasonable ba-\n sis in truth for the facts as alleged.\n B. Procedural Background\n Plaintiﬀ ﬁled his complaint in federal court on February\n21, 2017. He amended his compliant twice. The second\namended complaint, ﬁled on June 30, 2017, is the operative\ncomplaint; it includes four counts: Count I alleges discrimina-\ntion under Title VII against the DOC; Counts II and III allege,\npursuant to § 1983, a violation of the Equal Protection Clause\nof the Fourteenth Amendment against the individual defend-\nants and the DOC; and Count IV alleges discrimination under\n§ 1981 against all defendants.\n Defendants ﬁled a motion for summary judgment on\nMarch 2, 2018, arguing that plaintiﬀ lacked evidence to prove\nintentional discrimination under Title VII or § 1983. Plaintiﬀ\nﬁled his response on March 23, 2018, arguing that Korte is a\nsimilarly-situated employee and that defendants’ diﬀering\ntreatment of him and Korte is evidence he was terminated\nbased on his race or national origin, and that defendants’ prof-\nfered nondiscriminatory reasons for his discharge were pre-\ntextual. Defendants ﬁled their reply on April 23, 2018.\n The district court issued its decision on June 19, 2018,\ngranting summary judgment for defendants. The court de-\ncided that the record did not support an inference that Korte’s\nconduct was comparable to plaintiﬀ’s because the personnel\ninvestigation and the use of force review found that plaintiﬀ’s\nuse of force was unreasonable, and that plaintiﬀ was not\ntruthful when interviewed. And even if a reasonable jury\n\fNo. 18-2561 17\n\ncould ﬁnd similar conduct, the court reasoned that plaintiﬀ\nhad not established that defendants’ proﬀered reasons for his\ndischarge were pretextual. This appeal followed.\n II. Discussion\n “The court shall grant summary judgment if the movant\nshows that there is no genuine dispute as to any material fact\nand the movant is entitled to judgment as a matter of law.”\nFed. R. Civ. P. 56(a). We review a grant of summary judgment\nde novo, drawing all reasonable inferences for the nonmoving\nparty and viewing the record in the light most favorable to\nthe nonmoving party. Barbera v. Pearson Educ., Inc., 906 F.3d\n621, 628 (7th Cir. 2018). We may aﬃrm the grant of summary\njudgment on any ground supported by the record, as long as\nthe parties adequately presented the issue before the district\ncourt and the nonmoving party had an opportunity to contest\nit. O’Brien v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018).\n A. Discrimination Claims\n The complaint alleges race and national origin discrimina-\ntion in violation of Title VII and the Equal Protection Clause\nof the Fourteenth Amendment. Under Title VII, it is unlawful\nfor an employer to “discriminate against any individual ... be-\ncause of such individual’s race ... or national origin.” 42 U.S.C.\n§ 2000e–2(a)(1); see also Lauderdale v. Ill. Dep’t of Human Servs.,\n876 F.3d 904, 909 (7th Cir. 2017). Similarly, the Equal Protec-\ntion Clause protects against intentional discrimination on the\nbasis of race or national origin, and 42 U.S.C. § 1983 provides\nan employee subjected to such discrimination a path to relief.\nSee Lauderdale, 876 F.3d at 909–10. We evaluate discrimination\nclaims brought under both Title VII and § 1983 using the same\n\f18 No. 18-2561\n\nstandard. Egonmwan v. Cook Cty. Sheriﬀ’s Dep’t, 602 F.3d 845,\n850 n.7 (7th Cir. 2010). 12\n Discrimination claims may survive summary judgment\nwhen a plaintiﬀ presents evidence that permits a reasonable\nfactﬁnder to conclude that the employer took an adverse ac-\ntion against the employee because of the employee’s race or\nnational origin. See Ortiz v. Werner Enters., Inc., 834 F.3d 760,\n765 (7th Cir. 2016). In deciding motions for summary judg-\nment, courts must consider the evidence as a whole. See id.\n Here, plaintiﬀ seeks to establish discrimination by pre-\nsenting evidence that despite the similarity between his mis-\nconduct and Korte’s, the DOC, acting through Champagne,\ngave plaintiﬀ a more severe punishment. In addition to this\ncomparative evidence, plaintiﬀ argues that the nondiscrimi-\nnatory reasons defendants gave for deciding to discharge him\nwere merely a guise to cover defendants’ discriminatory dis-\ncipline.\n 1. Comparable Misconduct\n Discrimination may be inferred when an employer treats\nan employee in a protected class less favorably than it treats a\nsimilarly-situated employee outside that class. Coleman v. Do-\nnahoe, 667 F.3d 835, 846 (7th Cir. 2012). To determine whether\n\n\n 12 We aﬃrm the district court’s grant of summary judgment in favor\nof all defendants on plaintiﬀ’s 42 U.S.C. § 1981 claim. Section 1981 “pro-\nhibits race discrimination in the making and enforcing of contracts.”\nO’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). But, § 1981\n“does not create a private right of action against state actors.” Campbell v.\nForest Pres. Dist. of Cook Cty., 752 F.3d 665, 671 (7th Cir. 2014). Ra-\nther, § 1983 is “the exclusive remedy for violations of § 1981 committed by\nstate actors.” Id.\n\fNo. 18-2561 19\n\nemployees are similarly situated, courts ask “whether the\nother employees’ situations were similar enough to the plain-\ntiﬀ’s that it is reasonable to infer, in the absence of some other\nexplanation, that the diﬀerent treatment was a result of race\nor some other unlawful basis.” Luster v. Ill. Dep’t of Corr., 652\nF.3d 726, 730 (7th Cir. 2011). In cases such as this, where the\nplaintiﬀ alleges the employer disciplined him more harshly\nthan his comparator, “‘the most-relevant similarities are those\nbetween the employees’ alleged misconduct, performance\nstandards, and disciplining supervisor,’ rather than job de-\nscription and duties.” Coleman, 667 F.3d at 849 (quoting Rodg-\ners v. White, 657 F.3d 511, 518 (7th Cir. 2011)). “[T]he critical\nquestion is whether [the employees] have engaged in conduct\nof comparable seriousness.” Peirick v. Ind. Univ.-Purdue Univ.\nIndianapolis Athletics Dep’t, 510 F.3d 681, 689 (7th Cir. 2007).\nConduct may be comparably serious if it violates the same\nrule or is of a similar nature. Id.\n Plaintiﬀ maintains that the underlying misconduct in his\ncase is comparable to Korte’s, and as a result, the discrepancy\nin the charges he and Korte received is evidence that he was\ndischarged because of his race and national origin. Defend-\nants disagree that Korte engaged in similar misconduct. They\ncompare the investigatory and disciplinary documents in\nplaintiﬀ’s case to those in Korte’s case. While both personnel\ninvestigations found that plaintiﬀ and Korte violated Work\nRule #2 for failing to comply with policies and Work Rule #11\nfor threatening, attempting to inﬂict, or inﬂicting bodily harm\non an inmate, only plaintiﬀ’s personnel investigation found a\nviolation of Work Rule #6 for falsifying records. Korte did not\nreceive that charge. Relatedly, only plaintiﬀ’s discharge letter\n\f20 No. 18-2561\n\nreferenced the use of “excessive force” and a violation of DAI\nPolicy #306.07.01: Use of Force.\n Whether plaintiﬀ and Korte were charged with violating\nthe same set of rules is not dispositive. Plaintiﬀ may establish\nthat his use of force was as serious as Korte’s by showing that\ntheir misconduct was of a similar nature. See Peirick, 510 F.3d\nat 689. On this point, plaintiﬀ prevails.\n Korte pushed an inmate into a wall several times and\ngrabbed the inmate by the head after the inmate refused to\nstand in line and was laughing. Plaintiﬀ decentralized an in-\nmate after the inmate had recently ignored two separate or-\nders from Fulton, disregarded policy by cutting in line to use\nthe restroom, ignored plaintiﬀ’s verbal commands, and gave\nplaintiﬀ a target glance while stating expletives. Plaintiﬀ also\nheld the inmate on the ground for approximately two minutes\nuntil the inmate stopped his “passive resistance.”\n Although there are distinctions between the circum-\nstances leading up to each oﬃcer’s use of force and the way\nin which each oﬃcer used force, both oﬃcers used force on\ninmates who were violating the CIP’s rules, and fortunately,\nneither inmate sustained injuries. It is not for us to determine\nwhether either oﬃcer’s use of force was appropriate. We only\ndecide whether Korte is a useful comparator in a discrimina-\ntion analysis. And while we do not condone either plaintiﬀ’s\nor Korte’s actions, we note that plaintiﬀ was dealing with a\nless compliant inmate than Korte was, which meant the need\nfor a response in plaintiﬀ’s case was arguably greater than in\nKorte’s case. Both oﬃcers responded by restricting the in-\nmates’ movement—Korte forced the inmate’s body into a wall\nand plaintiﬀ forced the inmate’s body onto the ground. It is\nundisputed that plaintiﬀ incapacitated his inmate longer than\n\fNo. 18-2561 21\n\nKorte did, but it is also undisputed that plaintiﬀ kept the in-\nmate on the ground because the inmate was engaging in pas-\nsive resistance. There is no indication that the inmate on\nwhich Korte used force passively resisted him. On balance,\nwe view these use of force incidents as having a similar na-\nture.\n Defendants maintain that Korte is not a useful comparator\nbecause unlike plaintiﬀ, Korte did not lie during his personnel\ninvestigation when asked about his conduct. Defendants base\ntheir position that Korte did not lie on the following question\nand answer series during his personnel investigation: The in-\nterviewer asked Korte: “Do you recall grabbing [the inmate]\nby the face?” and Korte responded: “No, did I? I know you\nhave it on camera, did I really do that? Uh, no.” Such testi-\nmony either shows that Korte equivocated in responding to\nthe question or that he did not remember his actions; it does\nnot prove that Korte did not lie during an investigation. More-\nover, the record shows that when Korte ﬁlled out the “learn-\ning instruction” after the incident, he declined or forgot to in-\nclude any mention of how he pushed an inmate into the wall\nand grabbed the inmate’s head. Such a glaring omission\nwould tend to show that the author was less than forthright.\nAs a result, it is not the case that Korte’s reporting of his use\nof force was so thorough and forthcoming that it renders him\nineligible to serve as a comparator here. To the extent defend-\nants believed there were discrepancies in plaintiﬀ’s reporting\nof his use of force, discrepancies of a similar nature also ex-\nisted in Korte’s reports.\n Consequently, a reasonable jury could conclude that\nplaintiﬀ and Korte engaged in comparably serious conduct.\n\f22 No. 18-2561\n\nIn turn, we consider whether there is a legitimate nondiscrim-\ninatory reason behind defendants’ decision to discharge\nplaintiﬀ for his use of force, but only to suspend Korte for one\nday for his use of force.\n 2. Pretext for Discriminatory Charges and Punishment\n An inference of discrimination may follow when the em-\nployer’s purported nondiscriminatory reason for taking an\nadverse action against the employee was pretextual, meaning\nit was “a lie” or “a phony reason.” Smith v. Chi. Transit Auth.,\n806 F.3d 900, 905 (7th Cir. 2015) (quotation marks and citation\nomitted). To show pretext, plaintiﬀ must “identify such weak-\nnesses, implausibilities, inconsistencies, or contradictions” in\ndefendants’ stated reasons for their allegedly discriminatory\nactions “that a reasonable person could ﬁnd [it] unworthy of\ncredence.” Coleman, 667 F.3d at 852–53 (alteration in original)\n(quoting Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792\n(7th Cir. 2007)).\n In other words, a plaintiﬀ would not succeed on her dis-\ncrimination claim if the employer “honestly believed” its\nstated rationale for its adverse employment action, even if this\nhonest belief was “foolish, trivial, or baseless.” Id. at 853\n(quoting Boumehdi, 489 F.3d at 792). But, a plaintiﬀ would win\nher case if she showed that “the stated reason, even if actually\npresent to the mind of the employer, wasn’t what induced\n[the employer] to take the challenged employment action,”\nbecause that would constitute pretext. Id. (quoting Forrester v.\nRauland–Borg Corp., 453 F.3d 416, 418 (7th Cir. 2006)); see also\nO’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.\n2011) (“The question is not whether the employer’s stated rea-\n\fNo. 18-2561 23\n\nson was inaccurate or unfair, but whether the employer hon-\nestly believed the reasons it has oﬀered to explain the dis-\ncharge.”).\n To explain the diﬀerences in plaintiﬀ’s and Korte’s charges\nand punishment, defendants rely on Champagne’s belief that\nplaintiﬀ’s use of force was more extreme than Korte’s, and the\nnumber of investigators and reviewers who found plaintiﬀ’s\nuse of force to be unreasonable. Plaintiﬀ challenges defend-\nants’ ability to argue that their reasons were not pretextual in\nlight of Chairman Scott’s ﬁndings and conclusions. 13 Alterna-\ntively, plaintiﬀ argues that a reasonable jury could ﬁnd pre-\ntext because Champagne’s explanations for the diﬀerent dis-\nciplinary decisions evolved over time and defendants’ rea-\nsons for charging plaintiﬀ with falsifying documents were di-\nvorced from the factual record.\n i. Issue Preclusion\n Given Chairman Scott’s ﬁndings and conclusions that\nthere was “no credible evidence” to show plaintiﬀ violated\nWork Rules #6 and #11, there was insuﬃcient evidence to\nshow that plaintiﬀ violated Work Rule #2, “Champagne[’s]\nexplanation for the diﬀerences in treatment between [plaintiﬀ\nand Korte was] less than convincing,” and the DOC’s position\nwas not “substantially justiﬁed,” plaintiﬀ argues that issue\n\n\n\n\n 13 Plaintiff acknowledges that issue preclusion does not apply to his\nTitle VII claim. See Univ. of Tenn. v. Elliott, 478 U.S. 788, 796 (1986) (“Con-\ngress did not intend unreviewed state administrative proceedings to have\npreclusive effect on Title VII claims.”).\n\f24 No. 18-2561\n\npreclusion bars defendants from arguing that they had legiti-\nmate and nondiscriminatory reasons for discharging him. We\ndisagree.\n Issue preclusion seeks to “conserv[e] judicial resources[]\nand foste[r] reliance on judicial action by minimizing the pos-\nsibility of inconsistent decisions.” Taylor v. Sturgell, 553 U.S.\n880, 892 (2008) (alterations in original) (quoting Montana v.\nUnited States, 440 U.S. 147, 153–54 (1979)). It prohibits parties\nfrom relitigating an issue after a court considered the parties’\narguments on that issue and resolved it in a manner that was\nessential to the court’s judgment. Id. Federal courts apply the\npreclusion law of the state where the judgment was rendered,\nhere Wisconsin. See 28 U.S.C. § 1738; Adams v. Adams, 738 F.3d\n861, 865 (7th Cir. 2013). In Wisconsin there are two prerequi-\nsites for issue preclusion to apply: (1) “the question of fact or\nlaw that is sought to be precluded actually must have been\nlitigated in a previous action and [have been] necessary to the\njudgment”; and (2) the court must determine “whether it is\nfundamentally fair to employ issue preclusion given the cir-\ncumstances of the particular case at hand.” First Weber Grp.,\nInc. v. Horsfall, 738 F.3d 767, 773 (7th Cir. 2013) (alteration in\noriginal) (quoting Mrozek v. Intra Fin. Corp., 699 N.W.2d 54, 61\n(Wis. 2005)).\n To start, Champagne was not an adversary in the WERC\nproceeding, meaning she was not aﬀorded an opportunity to\nlitigate the issues plaintiﬀ raised there. Furthermore, there\nwas no identity of issues that were actually litigated. Chair-\nman Scott opined that Champagne’s descriptions of why she\ndisciplined plaintiﬀ more harshly than Korte were not credi-\nble, but he did so in the context of deciding whether plaintiﬀ’s\ndischarge was supported by “just cause” under Wisconsin\n\fNo. 18-2561 25\n\ncivil service laws and whether the DOC’s position was “sub-\nstantially justiﬁed.” Chairman Scott was not considering the\nprecise issue of pretext—whether the employer lied to cover\nup a discriminatory purpose. Finally, plaintiﬀ did not carry\nhis burden of proving that (despite the above issues) preclu-\nsion here would be “fundamentally fair.” See Paige K.B. ex rel.\nPeterson v. Steven G.B., 594 N.W.2d 370, 375 (Wis. 1999). Issue\npreclusion does not apply here.\n ii. Champagne’s Explanations\n As evidence of pretext, plaintiﬀ notes that Champagne’s\nreasoning for discharging him has shifted over time, and that\nthe latest explanation—that his use of force was more serious\nthan Korte’s—ﬁrst surfaced at summary judgment.\n At her deposition on July 21, 2015, Champagne explained\nwhy, within a one-month span, she suspended Korte for one\nday but terminated plaintiﬀ after both oﬃcers used force on\ninmates. She said: “[Korte] provide[d] information in the re-\nport as to what happened,” notiﬁed a supervisor, and oﬀered\nthe inmate medical attention. Then, at the WERC hearing on\nAugust 12, 2015, Champagne gave new reasons for her deci-\nsions: Korte “recognized that he was not following our proto-\ncols,” he “stopped his behavior and brought it to light with\nhis colleagues to make sure they were informed,” he “re-\nmoved himself from the situation,” he “informed the inmate\nof his rights in relation to grieving it,” and plaintiﬀ waited ﬁf-\nteen minutes before reporting his use of force to a supervisor.\nIn the declaration she ﬁled in this lawsuit on March 2, 2018,\nshe stated: “It is my opinion that the gravity of the force Korte\nused was not the same as the force [plaintiﬀ] used” because\n“Korte was verbalizing with the inmate,” he “disengaged” af-\n\f26 No. 18-2561\n\nter using force, he “admitted almost immediately that his be-\nhavior was not appropriate,” and he “immediately reported\nthe incident”; plaintiﬀ “has never, to my knowledge, recog-\nnized that his conduct was wrong.” Finally, at her deposition\non March 15, 2018, Champagne both restated some reasons\nshe had previously given—Korte immediately informed his\ncolleagues and supervisor, oﬀered the inmate medical assis-\ntance, and told the inmate that he could write a grievance or\na complaint, while plaintiﬀ did not take any of those steps—\nand she also added a new reason: plaintiﬀ used force without\nprovocation while Korte used force after provocation.\n We agree with plaintiﬀ’s position. A reasonable jury could\nconclude that Champagne’s evolving explanations support\nan inference of pretext. See Castro v. DeVry Univ., Inc., 786 F.3d\n559, 577 (7th Cir. 2015) (“As a general rule, a reasonable trier\nof fact can infer pretext from an employer’s shifting or incon-\nsistent explanations.”). Indeed, Chairman Scott, writing on\nbehalf of an independent agency, characterized Champagne’s\never-changing reasoning as “less than convincing” and “non-\nsensical.”\n Another problem with Champagne’s reasoning, in our\nview, is that it is founded on incorrect factual premises. Based\non the undisputed record: Korte did not ﬁll out an incident\nreport, plaintiﬀ did; and Korte did not notify a supervisor\nabout his use of force, plaintiﬀ did. Additionally, Champagne\nsaid the basis for her belief that Korte immediately notiﬁed\ncolleagues, oﬀered the inmate medical assistance, and in-\nformed the inmate of his right to ﬁle a grievance, was that\nsuch information appeared in the documents from the per-\nsonnel investigation. This belief was unfounded. None of the\ndocuments in the personnel investigation indicate that Korte\n\fNo. 18-2561 27\n\ndid those things. By contrast, plaintiﬀ notiﬁed the supervisor\nas soon as he arrived on duty after the incident. Furthermore,\nplaintiﬀ asserts (and we accept as true) that he verbally of-\nfered medical assistance to the inmate, but the inmate de-\nclined it. And ﬁnally, plaintiﬀ says he was not trained to ad-\nvise inmates of their right to ﬁle a grievance after a use of\nforce; it was his understanding that the supervisor would pro-\nvide this information. If Champagne’s logic about what an of-\nﬁcer can do in mitigation before, during, and after a use of\nforce had been applied accurately to the facts in the record,\nplaintiﬀ should have been given more credit in the review of\nhis misconduct. Instead, Champagne appears to have given\nKorte the beneﬁt of the doubt while depriving plaintiﬀ of his\nshare.\n Defendants respond that Champagne’s testimony, even if\nbased on incorrect factual premises, is not evidence that she\nis lying about the reason she decided to terminate plaintiﬀ.\nAnd defendants attempt to focus the court’s attention on the\nreasons Champagne gave in plaintiﬀ’s discharge letter, noting\nthat those reasons “are consistent with the video and at least\nten other people.” But as Chairman Scott opined, “[t]he video\nis at best inconclusive as to whether the raising of Haro’s arms\nsignaled an attempt to initiate a ﬁght or whether the ‘target\nglance’ occurred.” And we do not agree with the premise of\ndefendants’ argument—that because other people believed\nthat plaintiﬀ used excessive force, Champagne’s decision to\nterminate plaintiﬀ could not have been discriminatory. A rea-\nsonable jury could ﬁnd that Champagne’s reasoning was too\ndetached from the actual facts involved in the two uses of\nforce. From this ﬁnding, a reasonable jury could infer that\nChampagne’s proﬀered reasons were pretextual.\n\f28 No. 18-2561\n\n iii. The Falsiﬁcation Charge\n As further evidence of pretext, plaintiﬀ raises the issue of\ndefendants’ decision to charge him with falsifying documents\nwhen defendants did not bring the same charge against Korte.\nPlaintiﬀ had begun ﬁlling out an incident report before in-\nforming Grady about his use of force, and he completed that\nform before the end of his shift. He received the falsifying doc-\numents charge because defendants believed there were dis-\ncrepancies between his descriptions in the incident report and\nwhat they saw in the video. By contrast, Korte wrote a learn-\ning instruction instead of ﬁlling out an incident report, and\nnot once did he describe his use of force in that learning in-\nstruction. Defendants did not charge Korte with falsiﬁcation\nbecause he told the personnel investigators that he did not re-\nmember using force on the inmate, and Champagne believed\nthat response was truthful. Bambrough also indicated she was\nnot concerned by Korte’s response.\n It is diﬃcult to square defendants’ mistrust of plaintiﬀ’s\nreporting when they easily accepted Korte’s reporting despite\nits similar ﬂaws. As we noted above, the video does not estab-\nlish what exactly transpired between plaintiﬀ and Haro—the\nvideo does not record who said what to whom or when, and\nthe video does not clearly show what subtle movements\nplaintiﬀ or Haro made. Such details would be necessary to\nevaluate whether plaintiﬀ falsely reported what prompted\nhim to use force and the way in which he used force. It is de-\nfendants’ prerogative to evaluate the veracity of their em-\nployee’s narratives, but where defendants do so inconsist-\nently, red ﬂags arise. See Loudermilk v. Best Pallet Co., 636 F.3d\n312, 315 (7th Cir. 2011) (“[A]n employer who advances a ﬁshy\nreason takes the risk that disbelief of the reason will support\n\fNo. 18-2561 29\n\nan inference that it is a pretext for discrimination.”). A reason-\nable jury could conclude that defendants charged plaintiﬀ\nwith falsiﬁcation because of his race or national origin, not be-\ncause defendants truly believed that plaintiﬀ was intention-\nally inaccurate in his reporting of his use of force.\n * * *\n For the foregoing reasons, we agree that plaintiﬀ raised a\ntriable issue of fact as to whether the nondiscriminatory rea-\nsons defendants gave for terminating plaintiﬀ were pre-\ntextual, and whether the real reason he did not receive a one-\nday suspension—or some other punishment short of dis-\ncharge—was because he is Latino and a Brazilian citizen. As\na result, we reverse the district court’s award of summary\njudgment to the DOC on plaintiﬀ’s Title VII claim and to\nChampagne on plaintiﬀ’s equal protection claim brought un-\nder § 1983.\n We do not reach the same conclusion as to Bambrough and\nHicks because other than noting that they were each actors at\ndiﬀerent points in the personnel investigation, plaintiﬀ did\nnot develop any arguments about their personal involvement\nin the decision to discharge him. Therefore, we aﬃrm the dis-\ntrict court’s decision to award summary judgment to Bam-\nbrough and Hicks. See Carmody v. Bd. of Trs. of Univ. of Ill., 893\nF.3d 397, 402–03 (7th Cir. 2018) (liability under § 1983 requires\nevidence of personal involvement in the alleged discrimina-\ntion).\n B. Eleventh Amendment\n Turning next to plaintiﬀ’s equal protection allegations\nagainst the DOC, defendants argue that the Eleventh Amend-\nment immunizes them from claims brought pursuant to\n\f30 No. 18-2561\n\n§ 1983. While defendants raise this argument for the ﬁrst time\non appeal, we may forgive the waiver of an Eleventh Amend-\nment defense given that the defense is based on comity. Hig-\ngins v. Mississippi, 217 F.3d 951, 953–54 (7th Cir. 2000). “The\nEleventh Amendment bars private litigants’ suits against non-\nconsenting states in federal courts, with the exception of\ncauses of action where Congress has abrogated the states’ tra-\nditional immunity through its powers under the Fourteenth\nAmendment.” Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432\nF.3d 746, 748 (7th Cir. 2005). This immunity extends to state\nagencies and state oﬃcials in their oﬃcial capacities. Id. There\nis no dispute that the DOC is a nonconsenting state agency,\nand Congress has not abrogated Wisconsin’s Eleventh\nAmendment immunity for plaintiﬀ’s claims brought pursu-\nant to § 1983. 14 Therefore, the Eleventh Amendment bars\nplaintiﬀ’s equal protection claim against the DOC. 15\n C. Qualiﬁed Immunity\n Finally, though the individual defendants did not assert a\nqualiﬁed immunity defense in their motion for summary\n\n\n 14Congress has abrogated state sovereign immunity with respect to\nTitle VII. See Carmody, 893 F.3d at 403 (citing Fitzpatrick v. Bitzer, 427 U.S.\n445, 456 (1976)). Thus, the Eleventh Amendment does not bar plaintiff’s\nTitle VII claims.\n 15Defendants also argue that plaintiff may not pursue his equal pro-\ntection claim against the DOC because it is not a “person” under § 1983.\nSee Duncan v. State of Wis. Dep’t of Health & Family Servs., 166 F.3d 930, 935\n(7th Cir. 1999) (“[N]either the state agency itself nor the state employees\nin their official capacity can be sued for retrospective monetary relief, for\nthe simple reason that the state is not a ‘person’ for purposes of 42 U.S.C.\n§ 1983.”). We agree this is an alternate basis from which we may affirm the\ndistrict court’s summary judgment decision as to this claim (Count III).\n\fNo. 18-2561 31\n\njudgment, they did raise it in their answer to plaintiﬀ’s second\namended complaint. Plaintiﬀ does not challenge their ability\nto raise this defense on appeal. As Champagne is the only re-\nmaining individual defendant, we need only consider\nwhether qualiﬁed immunity shields her from liability on\nplaintiﬀ’s equal protection claim.\n Qualiﬁed immunity protects an oﬃcial from money dam-\nages “unless a plaintiﬀ pleads facts showing (1) that the oﬃ-\ncial violated a statutory or constitutional right, and (2) that the\nright was ‘clearly established’ at the time of the challenged\nconduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). A right\nis clearly established when existing precedent places it “be-\nyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quot-\ning Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). In short, “im-\nmunity protects ‘all but the plainly incompetent or those who\nknowingly violate the law.’” Id. (quoting Mullenix, 136 S. Ct.\nat 308).\n Defendants argue that not a single case existed as of De-\ncember 2014, when Champagne decided to terminate plain-\ntiﬀ, that would have alerted her that this scenario was uncon-\nstitutional. We disagree. Plaintiﬀ presented suﬃcient evi-\ndence such that a reasonable jury could ﬁnd that Champagne\nterminated plaintiﬀ because of his race and national origin.\nAnd if a jury draws that inference, it is of course true that\nChampagne’s actions would violate clearly established law. It\nis well-established that terminating an employee on the basis\nof his protected status—including race or national origin—vi-\nolates the Equal Protection Clause of the Fourteenth Amend-\nment. Cf. Lauderdale, 876 F.3d at 909 (citing Hayden ex rel. A.H.\nv. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 577 (7th Cir. 2014);\n\f32 No. 18-2561\n\nBurks v. Wis. Dep't of Transp., 464 F.3d 744 (7th Cir. 2006)); Cole-\nman, 667 F.3d at 859. Therefore, qualiﬁed immunity does not\nshield Champagne from liability here.\n III. Conclusion\n For the foregoing reasons, we AFFIRM in part and REVERSE\nand REMAND in part the judgment of the district court. We af-\nfirm the district court’s decision to award summary judgment\nto Bambrough and Hicks on plaintiff’s claims brought pursu-\nant to § 1983 (Count II); to the DOC on plaintiff’s claims\nbrought pursuant to § 1983 (Count III); and to all defendants\non plaintiff’s § 1981 claim (Count IV). But we reverse and re-\nmand the district court’s decision involving plaintiff’s Title\nVII claim against the DOC (Count I) and equal protection\nclaim against Champagne brought under § 1983 (Count II).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370448/", "author_raw": "Joel Martin Flaum"}]}	FLAUM	BARRETT	SCUDDER	1	{"FLAUM": ", Circuit", "BARRETT": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593195/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,196		El Hadj Hamidou Barry v. William P. Barr	2019-02-22	18-2334	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "BRENNAN, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐2334 \nEL HADJ HAMIDOU BARRY, \n Petitioner, \n v. \n\nWILLIAM P. BARR, \nAttorney General of the United States, \n Respondent. \n ____________________ \n\n Petition for Review of an Order of the \n Board of Immigration Appeals. \n No. A205‐830‐004. \n ____________________ \n\n ARGUED NOVEMBER 9, 2018 — DECIDED FEBRUARY 22, 2019 \n ____________________ \n\n Before BAUER, BRENNAN, and SCUDDER, Circuit Judges. \n BRENNAN, Circuit Judge. El Hadj Hamidou Barry, a native \nand citizen of Guinea, applied for deferral of his removal from \nthe United States under the United Nations Convention \nAgainst Torture. An immigration judge denied Barry’s appli‐\ncation because Barry failed to show if removed to Guinea he \nlikely would be tortured. The Board of Immigration Appeals \naﬃrmed. Barry now petitions this court for review, claiming \n\f2 No. 18‐2334 \n\nif removed to Guinea he will be tortured because of his \npolitical and familial aﬃliations and his sexual orientation. \nBarry has failed to satisfy his burden to substantiate these \nclaims with evidence, so we deny his petition. \n I. \n Barry was born and grew up in Guinea. His father was a \nmember of the Union for New Republic (“UNR”), an \nopposition political party in Guinea during the 1990s. In the \npast, the Guinean government—controlled by the ruling \npolitical party at that time—took drastic measures to locate \nBarry’s father and prevent his political activities. Barry testi‐\nfied at his immigration hearing that Guinean soldiers showed \nup at his home when he was eight years old, stabbed him in \nthe thigh with a machete, and threatened to cut oﬀ his leg to \nelicit his father’s whereabouts from his mother. When his \nmother did not comply, the soldiers beat her, too. Barry’s \nmother testified before the immigration judge in support of \nBarry’s application for deferral under the Convention Against \nTorture (“CAT”), reiterating the incident with the soldiers as \nBarry described it. Barry is no longer in touch with his father \nand has no current aﬃliation with any Guinean political \nparty, including the UNR. Moreover, a diﬀerent political \nparty with a new president is now in power in Guinea. \n In 1998, shortly after the incident with the soldiers, Barry \nand his mother left Guinea and arrived in the United States. \nBarry was admitted as a temporary visitor. Having never \nreturned to Guinea, he is now thirty years old and has been \nliving in the United States for over twenty years. Around \n2009, Barry committed various crimes, including robbery, \ncontrolled substances oﬀenses, and possession of a firearm. \n\fNo. 18‐2334 3\n\nHe was convicted and sentenced for an aggravated felony \nconviction of conspiracy to commit robbery. \n The Department of Homeland Security issued Barry a \nFinal Administrative Removal Order under 8 U.S.C. § 1228(b) \nbased on his felony conviction. Barry applied for deferral of \nremoval under Article 3 of CAT, 8 C.F.R. § 1208.17.1 He also \nsought and was aﬀorded a reasonable fear interview with an \nasylum oﬃcer. During the interview, he expressed fear of \nbeing tortured if returned to Guinea due to his father’s past \npolitical aﬃliations and his sexual orientation. The asylum \noﬃcer referred Barry’s case to the Chicago Immigration \nCourt, and an immigration judge held a hearing to assess the \nmerits of Barry’s deferral claim. \n Barry and his mother testified at the hearing. They each \ndescribed the soldier stabbing incident, the country \nconditions in Guinea, and Barry’s bisexuality. Barry testified \nthat when he was a sophomore in high school, he was told \nanecdotally by “another African guy” that Guinean civilians \nhave tortured and beaten to death gay men living in Guinea. \nBarry explained while there have not been any reported \nincidents of Guinean police prosecuting homosexuals under \nGuinean laws criminalizing homosexual activity, he believes \nmost homosexual behavior is not reported to the police \nbecause Guinean civilians routinely administer “street \njustice” to gay individuals. \n\n \n 1 Barry also requested withholding of removal under the Immigration \n\nand Nationality Act § 241 (b)(3), see 8 U.S.C. § 1231(b)(A), but at his hearing \nconceded his conviction for conspiracy to commit robbery constitutes a \n“particularly serious crime,” making him ineligible for withholding. See 8 \nU.S.C. § 1231(b)(3)(B)(ii); see also 8 C.F.R. § 1208.16(d)(2). \n\f4 No. 18‐2334 \n\n Barry married an American woman, Amber Johnson, in \nApril 2017. At his immigration hearing, he testified he had \nrelationships with “five to six” men before meeting his wife \nand, despite marrying Amber, has continued to pursue sexual \nrelations with men. Based on his plan to maintain \nextramarital sexual relations in the future, he believes \n“regular civilians” in Guinea will be able to discover his \nsexuality and “attack [him], … torture [him], kill [him]” and \n“beat [him] to death.” \n Barry’s mother testified she learned of Barry’s bisexuality \nwhen he was in high school. She expressed her fear that Barry \ncould be killed in Guinea if people learned of his sexual \norientation, recounting she had seen gay people chased \nthrough the streets in Guinea and “beaten up … because they \nwere gay.” Her testimony about the conditions homosexual \nindividuals encounter in Guinea is based on her experiences \nin Guinea approximately twenty years ago. \n Barry also submitted record evidence in support of his and \nhis mother’s testimonies. The most notable evidence included \nsummonses for his parents to appear, purportedly issued by \na Guinean court, and a U.S. State Department country report \ndescribing conditions in Guinea as politically violent and \nhostile toward homosexual individuals. The summonses are \ndated April 20, 1998 and April 7, 2016, and the country report \nwas produced in 2016. \n The immigration judge found Barry and his mother to be \ncredible witnesses, but denied Barry’s application for CAT \ndeferral because Barry failed to meet his burden of producing \nevidence that if removed to Guinea he more likely than not \nwould be tortured. Specifically, the immigration judge \ndetermined “the bulk of the evidence” about Barry being \n\fNo. 18‐2334 5\n\ntortured because of his bisexuality comes from Barry’s \nmother, who has not been to Guinea in approximately twenty \nyears. Although the country report does not contradict \nBarry’s mother’s testimony, it explains only generally that \nGuinea criminalizes same‐sex sexual conduct and describes \ngeneralized violence toward gay individuals rooted in \n“religious and cultural taboos.” As the judge noted, “there’s \nbeen [no known] prosecutions or reports of arrest” in Guinea \nunder the country’s laws prohibiting homosexual acts. The \njudge also determined the evidence about Barry being \ntortured because of his father’s past political aﬃliations \nlargely consists of decades‐old memories and events. Even \nassuming Barry and his mother accurately depicted the \nincident with the soldiers, the judge found no evidence that \nfuture incidents would occur. \n Barry timely appealed the immigration judge’s decision to \nthe Board of Immigration Appeals (“BIA”). On May 31, 2018, \nBIA dismissed the appeal and aﬃrmed the immigration \njudge’s removal order. Barry now petitions this court for \nreview. \n II. \n An applicant seeking deferral of removal under CAT bears \nthe burden of establishing it is “more likely than not that he \nor she would be tortured” in the proposed country of \nremoval. 8 C.F.R. §§ 1208.16(c)(2)–(3), 1208.17(a). This court \n“interpret[s] that standard liberally, requiring ‘a substantial \nrisk that a given alien will be tortured if removed from the \nUnited States.’” Bernard v. Sessions, 881 F.3d 1042, 1047 (7th \nCir. 2018) (quoting Rodriguez‐Molinero v. Lynch, 808 F.3d 1134, \n1136 (7th Cir. 2015)); see Perez v. Sessions, 889 F.3d 331, 334 (7th \nCir. 2018) (noting that this court applies the “more likely than \n\f6 No. 18‐2334 \n\nnot” standard under a “substantial risk” analysis). For \npurposes of CAT protection, there must be some showing that \nthe potential torture will be committed by the government of \nthe removal country, either directly or by acquiescence. \nBernard, 881 F.3d at 1047 (quoting Lopez v. Lynch, 810 F.3d 484, \n492 (7th Cir. 2016)); see also Lozano‐Zuniga v. Lynch, 832 F.3d \n822, 830 (7th Cir. 2016) (“An applicant for CAT protection \nmust demonstrate that the torture was inflicted by or at the \nbehest of, or with the consent or acquiescence of, a public \noﬃcial.”). \n When evaluating whether an applicant has met this \nburden, “the immigration judge must address various factors \nsuch as evidence of past torture, ability to relocate within the \ncountry, evidence of grave human rights violations or other \nrelevant country conditions.” Orellana‐Arias v. Sessions, 865 \nF.3d 476, 489 (7th Cir. 2017); see 8 C.F.R. § 1208.16(c)(3)(i)–(iv). \n“Evidence of generalized violence is not enough; the [immi‐\ngration judge] must conclude that there is a substantial risk \nthat the petitioner will be targeted specifically.” Bernard, 881 \nF.3d at 1047 (citing Lozano‐Zuniga, 832 F.3d at 830–31); Lopez, \n810 F.3d at 493. \n When, as here, BIA relies on the immigration judge’s \nfindings and adds its own analysis, this court reviews the \nimmigration judge’s decision as supplemented by BIA’s \nadditional reasoning. Bernard, 881 F.3d at 1046 (quoting \nJabateh v. Lynch, 845 F.3d 332, 337 (7th Cir. 2017)). The court \nreviews a “denial of CAT deferral under the highly deferential \nsubstantial evidence test and will reverse only if the record \nevidence compels a contrary conclusion.” Bernard, 881 F.3d at \n1047 (quoting Lopez, 810 F.3d at 492 (internal citations \nomitted)); see INS v. Elias‐Zacarias, 502 U.S. 478, 481 n. 1 (1992) \n\fNo. 18‐2334 7\n\n(“To reverse the BIA finding we must find that the evidence \nnot only supports that conclusion, but compels it … ”); Jabateh, \n845 F.3d at 337 (explaining that the court “may reverse the \n[immigration judge’s factual] determinations ‘only if we de‐\ntermine that the evidence compels a diﬀerent result’” (quoting \nAbraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011))). \n Here, the evidence does not compel the conclusion that \nBarry more likely than not will be tortured by or with the \nacquiescence of Guinean oﬃcials. At his immigration hearing, \nBarry relied primarily on three sources of evidence: (1) the \ntestimony of he and his mother about his bisexuality and \nconditions in Guinea twenty years ago, (2) summonses \npurportedly issued by a Guinean court for his parents’ \nappearances, and (3) a U.S. State Department country report \ndescribing conditions in Guinea as politically violent and \nhostile toward homosexual individuals. \n Certainly, the testimony before the immigration judge \nindicates Barry suﬀered great harm as a child at the hands of \nGuinean soldiers. Whether that harm rose to the level of \ntorture was, ultimately, not a factual determination the \nimmigration judge needed to make. After reviewing the \nentire record and finding Barry and his mother credible, the \nimmigration judge determined Barry’s fear of future torture \nwas “too speculative” and did not meet the “more likely than \nnot” standard. The immigration judge must consider poten‐\ntial past torture in the context of the entire record; past torture \nalone is not dispositive. 8 C.F.R. §1208.16(c). BIA reviewed the \nimmigration judge’s findings and agreed. The evidence does \nnot compel us to conclude diﬀerently. \n Barry and his mother left Guinea over twenty years ago. \nNeither have been back to the country since, and neither seem \n\f8 No. 18‐2334 \n\nto have maintained any familial or political ties to the country. \nBarry and his mother testified they are no longer in touch with \nBarry’s father, whose political activities gave rise to the abuse \nBarry and his mother suﬀered twenty years ago. As the \ncountry report explains, a diﬀerent political party controls \nGuinea today than the one that commissioned soldiers two \ndecades ago to find Barry’s father. \n To support his assertion that the Guinean government is \nstill looking for his father, Barry submitted Guinean court \nsummonses for his parents from 1998 and 2016. When the \nimmigration judge asked Barry about their origin, Barry \ncould not authenticate them, nor could he explain how he ob‐\ntained them or why they were issued. He did not argue at that \ntime that he lacked an opportunity to authenticate the docu‐\nments, nor did he object to the immigration judge aﬀording \nthem limited evidentiary weight. Indeed, it was consistent \nwith this court’s precedent for the immigration judge to do so. \nSee Raghunathan v. Holder, 604 F.3d 371, 380 (7th Cir. 2010) \n(giving little weight to an aﬃdavit by a respondent’s mother \nbecause it was unauthenticated and the respondent failed to \nexplain how he had obtained it). \n Even if Guinean oﬃcials are still looking for Barry’s father, \nit is speculation to assume they are looking for Barry or would \nconnect Barry to his father. Barry testified the Guinean \ngovernment would know he is his father’s son because they \nshare a surname. But he failed to lay a foundation for this \nassertion (for example, by providing evidence how common \nthe surname “Barry” is in Guinea). No record evidence \nsubstantiates Barry’s fear his father’s political aﬃliations will \nimperil him. \n\fNo. 18‐2334 9\n\n Barry also testified he would be tortured in Guinea \nbecause he is bisexual. His testimony describing present‐day \ntreatment of gay men in Guinea is based on a friend’s hearsay \ncomment from approximately thirteen or fourteen years ago. \nThe friend’s comment is uncorroborated, aside from Barry’s \nmother testifying she recalls gay individuals being beaten \nwhen she lived in Guinea approximately twenty years ago. \nSuch dated testimonial evidence fails to establish a substantial \nrisk of torture in Guinea today. See, e.g., Bernard, 881 F.3d at \n1046 (evidence that consists mostly of “decades‐old \nmemories” does not establish a CAT claim for relief). \n In addition to outdated, the friend’s comment indicates \nonly that Guinean civilians may mistreat gay men; it would \nnot show that the Guinean government tortures individuals \nbased on sexual orientation or systematically turns a blind eye \ntoward such mistreatment. See Silais v. Sessions, 855 F.3d 736, \n742 (7th Cir. 2017) (violence committed by private individuals \nmay constitute persecution only if the foreign government \nwas complicit in those acts or was unable or unwilling to take \nsteps to prevent them). While Guinean laws criminalize \nhomosexual activities, Barry did not know of a single \nindividual ever prosecuted for homosexuality in Guinea, and \nhe admitted the country report contains no evidence of any \nhomosexuality‐based prosecutions. \n The country report explains there are “[d]eep religious \nand cultural taboos against same‐sex sexual conduct” in \nGuinea and that same‐sex sexual activity is illegal. The report \ndoes not, however, describe any individual being tortured for \nengaging in homosexual activity. Further, the report contains \nonly generalized findings insuﬃcient to satisfy Barry’s \nburden of showing he is personally subject to a particularized \n\f10 No. 18‐2334 \n\nrisk of torture. See Lozano‐Zuniga, 832 F.3d at 830–31 \n(“[E]vidence about generalized violence or danger within a \ncountry is not suﬃcient to make a claim that it is more likely \nthan not that a petitioner would be tortured upon return to \nhis home country.”); see also Lenjinac v. Holder, 780 F.3d 852, \n856 (7th Cir. 2015) (“[R]eports that torture occurs in a foreign \ncountry … are insuﬃcient bases for relief without evidence \nthat the petitioner will be tortured if he returns.”); Rashiah v. \nAshcroft, 388 F.3d 1126, 1133 (7th Cir. 2004). \n III. \n Barry has failed to establish he more likely than not will \nbe tortured if removed to Guinea. The immigration judge \nassessed the record and denied Barry’s deferral application. \nBIA reviewed the immigration judge’s findings and aﬃrmed. \nThe evidence does not compel this court to conclude \notherwise. \n The petition for review is DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370449/", "author_raw": "BRENNAN, Circuit Judge"}]}	BAUER	BRENNAN	SCUDDER	1	{"BAUER": ", Circuit", "BRENNAN": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593196/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,330		Julio de Lima Silva v. State of Wisconsin, Department	2019-02-22	18-2561	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "Joel Martin Flaum", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2561\nJULIO DE LIMA SILVA,\n Plaintiff-Appellant,\n v.\n\nSTATE OF WISCONSIN, DEPARTMENT OF CORRECTIONS, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Western District of Wisconsin.\n No. 17-cv-00128 — William M. Conley, Judge.\n ____________________\n\n ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 22, 2019\n ____________________\n\n Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.\n FLAUM, Circuit Judge. Plaintiff-appellant Julio de Lima\nSilva, a Brazilian citizen who self-identifies as Latino, worked\nas a correctional sergeant for the State of Wisconsin, Depart-\nment of Corrections (“DOC”). His use of force on an inmate\ntriggered an internal review process and ultimately led to his\ndischarge. The individual defendants—Quala Champagne,\nthe Warden of Wisconsin Correctional Center System\n\f2 No. 18-2561\n\n(“WCCS”), Andrea Bambrough, the Human Resources Direc-\ntor of WCCS, and David Hicks, a Corrections Unit Supervisor\nat Columbia Correctional Institution—played various roles in\nthat review process. To challenge his discharge, plaintiff filed\nthis lawsuit, bringing discrimination claims against the DOC\nunder Title VII, 42 U.S.C. § 2000e–2(a)(1), (Count I); against\nthe individual defendants and the DOC under 42 U.S.C.\n§ 1983, alleging a violation of the Equal Protection Clause\n(Counts II and III, respectively); and against all defendants\nunder 42 U.S.C. § 1981 (Count IV). The district court granted\ndefendants summary judgment on all counts. For the follow-\ning reasons, we affirm in part and reverse and remand in part.\nWe reverse the district court’s award of summary judgment\nto the DOC on plaintiff’s Title VII claim and to Champagne\non plaintiff’s equal protection claim brought pursuant to\n§ 1983, and we otherwise affirm the district court’s judgment.\n I. Background\n A. Factual Background\n Plaintiﬀ’s career with the DOC began in the summer of\n2012. In his application to the DOC, he identiﬁed his race and\nethnicity as Latino. He also indicated that he was from Brazil.\nOn July 1, 2013, he became a correctional sergeant in the Chal-\nlenge Incarceration Program (“CIP”) at the St. Croix Correc-\ntional Center (“St. Croix”). Of the approximately thirty em-\nployees that comprised the security staﬀ at St. Croix in 2014,\nplaintiﬀ was the only nonwhite employee.\n The CIP is an alcohol and drug abuse program that eligible\ninmates can complete in hopes of receiving early release from\ntheir sentences. It is a military-style “boot camp” with strict\n\fNo. 18-2561 3\n\nrules that are unique to the program. Inmates agree to be sub-\nject to these special rules when they enroll in the CIP.\n 1. Plaintiﬀ’s Use of Force\n On June 23, 2014, plaintiﬀ worked the night shift with Ser-\ngeant Paul Fulton. While making rounds, Fulton twice ob-\nserved inmate Fernando Haro covering his head in violation\nof the CIP’s rules. Fulton woke Haro up on both occasions to\ninstruct him to keep his head uncovered. After the second in-\nstruction, Haro used profanities and told Fulton that he was\ndone with the program and wanted to leave, which violated\nanother rule. Plaintiﬀ overheard arguing voices and went to\nassist Fulton. Plaintiﬀ told Haro to calm down and to follow\norders. Eventually, Haro complied. Plaintiﬀ and Fulton then\nreturned to the lower control room where they discussed the\nsituation. At that time, Fulton told plaintiﬀ what had hap-\npened with Haro before plaintiﬀ arrived on the scene.\n Meanwhile, the disturbance between Haro and Fulton had\nawakened the other inmates, and several of those inmates\nnow needed to use the restroom. In the CIP, inmates may only\nuse the restroom if they request and obtain permission from\nthe oﬃcers. To do so, they must stand in the “position of at-\ntention” and wait for a correctional sergeant to grant them\npermission. An inmate is in the “position of attention” when\nhis arms are down at his sides and his feet are in the shape of\na “V” with his heels touching.\n Fulton was in the process of granting individual inmates\npermission to use the restroom when Haro got up from his\nbed and, without standing at attention or seeking permission,\ngrabbed his toiletries, and walked toward the restroom. Nei-\nther Fulton nor plaintiﬀ granted Haro permission to do so.\n\f4 No. 18-2561\n\nFulton and plaintiﬀ discussed how Haro’s refusal to follow\nthe CIP’s rules could cause an altercation among inmates\ngiven that Haro had cut in line to use the restroom. They de-\ncided that plaintiﬀ would talk to Haro.\n As plaintiﬀ approached Haro from behind, he directed\nHaro to go back to his bunk in a loud voice. 1 When Haro did\nnot comply, plaintiﬀ gave the directive two more times, esca-\nlating the volume of his voice each time. Plaintiﬀ moved into\na position of control behind Haro and observed that Haro was\nnot in the position of attention. Plaintiﬀ told Haro that he had\nalready ordered him to return to his bunk three times and\nHaro was not in a position of attention. Plaintiﬀ observed\nHaro look over his shoulder at him and state, “go fuck your-\nself, you son of a bitch.” Plaintiﬀ perceived this over-the-\nshoulder glance from Haro as a “target glance,” which is\nwhen a subject looks to see where the target is and to assess\nthe target.\n There is a dispute over what happened after Haro glanced\nat plaintiﬀ. 2 Plaintiﬀ remembers that Haro clenched his ﬁsts\nand raised his arms into a ﬁghter stance. Because of this per-\nception, plaintiﬀ approached Haro from the back-left side and\napplied a wrist lock to Haro. When plaintiﬀ felt Haro resist\nthe hold, he decentralized Haro, while telling Haro to “stop\nresisting.” 3 Plaintiﬀ says he decentralized Haro because he\n\n 1 A security camera captured plaintiff’s use of force, but the video\ndoes not have audio of the incident.\n 2 Several DOC employees reviewed the video and developed different\n\nopinions about what they saw happen.\n 3An officer “decentralizes” an inmate when he physically directs an\ninmate to the floor.\n\fNo. 18-2561 5\n\nthought that a potential attack was imminent. Plaintiﬀ also\nsays he attempted to control the speed of Haro’s descent by\nusing a circular motion. It is undisputed that Haro was not\ninjured during the decentralizing process.\n While Haro was on the ground, plaintiﬀ positioned him-\nself at Haro’s side, with his knee on the ground. Both of plain-\ntiﬀ’s hands cupped Haro’s arm in a compliance hold. Plaintiﬀ\nasked Haro if he was okay, to which Haro replied yes, and\nplaintiﬀ oﬀered Haro medical assistance. Still on the ground,\nHaro engaged in “passive resistance” 4 by commenting to\nplaintiﬀ that “this is all bullshit,” calling plaintiﬀ ma’am, and\nusing profanities. As a result, plaintiﬀ kept Haro on the\nground to calm him down. Fulton, who had arrived on the\nscene, did not feel that plaintiﬀ had Haro on the ground too\nlong.\n Once Haro calmed down (and over two minutes had\npassed), plaintiﬀ advised Haro that he would assist Haro to\nhis feet, they would go to the lower barracks group room, and\nHaro would wait there until Captain Scott Grady arrived to\ntalk to him about what had happened. Plaintiﬀ then escorted\nHaro to the lower barracks group room. Plaintiﬀ did not place\nhandcuﬀs on Haro because he felt he had total control of him. 5\nPlaintiﬀ did not advise Haro that he could ﬁle a grievance—\nplaintiﬀ says he was not trained to give such advice after a use\n\n 4 Division of Adult Institution (“DAI”) Policy #306.07.01 defines “pas-\n\nsive resistance” as “[r]esistance from a subject which does not physically\ncounteract staff’s attempt at control and which does not create a risk of\nbodily harm to the staff or to another.”\n 5 Both Captain Grady and Superintendent JoAnn Skalski confirmed\nthat there was no requirement at St. Croix in June of 2014 that correctional\nofficers had to use handcuffs after decentralizing an inmate.\n\f6 No. 18-2561\n\nof force. It was his understanding that the supervisor would\nprovide this information to the inmate.\n When Grady reported for work at approximately 5:00 AM\non June 23, 2014, plaintiﬀ told Grady what had occurred.\nGrady instructed plaintiﬀ to write an incident report. Plaintiﬀ\nhad already started working on the incident report before\nGrady reported for work and he completed it at around 5:30\nAM.\n\n Grady read plaintiﬀ’s incident report and thought there\nwere discrepancies between what plaintiﬀ had told him and\nwhat plaintiﬀ had written in the report. This prompted Grady\nto email Superintendent JoAnn Skalski about the incident.\nSkalski, in turn, directed Grady to look at the video of the in-\ncident. After reviewing the video, Grady became concerned\nwith the way plaintiﬀ approached and handled Haro.\n One month later, Skalski contacted Human Resources to\nreport the incident. Soon thereafter, Warden Quala Cham-\npagne watched the video of the incident and had similar con-\ncerns. Defendants put plaintiﬀ on administrative suspension\non July 25, 2014—more than one month after the incident oc-\ncurred.\n 2. Plaintiﬀ’s Personnel Investigation\n Champagne ordered a personnel investigation of plain-\ntiﬀ’s use of force—it was her practice to do so whenever she\nreceived a report that a DOC employee violated a work rule.\nDuring a personnel investigation, investigators review mate-\nrials, conduct interviews, and draft a report of their ﬁndings.\nIn practice, a personnel investigation results in a packet of\neight documents and a recommendation about whether the\n\fNo. 18-2561 7\n\nfacts support any work-rule violations. At the end, if the ap-\npointing authority (here, Champagne) believes there is prob-\nable cause to discipline an employee, the personnel investiga-\ntion packet is transferred to the Employment Relations Spe-\ncialists for review.\n Champagne assigned Maria Silao-Johnson and Jeﬀ Jaeger,\nsuperintendents at other correctional facilities, to conduct\nplaintiﬀ’s personnel investigation. After reviewing video of\nthe incident, neither Silao-Johnson nor Jaeger saw Haro as-\nsume a ﬁghter stance. Plaintiﬀ says Jaeger laughed at his ac-\ncent and called him a “liar” during their interview on August\n20, 2014. Jaeger thought plaintiﬀ was being untruthful when\nplaintiﬀ wrote in his incident report: “Due to poor illumina-\ntion, his clenched ﬁst. I originally just secured his left arm. I\nhad him by his wrist but he was struggling with me and then\nI decentralized him.”\n Once they completed the investigation, Silao-Johnson and\nJaeger drafted a “Summary of Investigation.” This report con-\ncluded that plaintiﬀ potentially violated Work Rule #2 for us-\ning excessive force, Work Rule #6 for providing false infor-\nmation during the investigation, and Work Rule #11 for\nthreatening or attempting to inﬂict bodily harm on an inmate\nwithout provocation or reasonable justiﬁcation. It also deter-\nmined that plaintiﬀ may have violated executive and admin-\nistrative directives regarding the proper use of force.\n In turn, David Hicks, as the Employment Relations Spe-\ncialist on the case, reviewed the personnel investigation\npacket and determined the investigation was thorough, unbi-\nased, and complete. He presented his ﬁndings to the Infrac-\ntion Review Team (“IRT”) and recommended that the case\nproceed to a predisciplinary meeting. The purpose of the IRT\n\f8 No. 18-2561\n\nis to ensure that the DOC consistently administers discipline.\nIt reviews the personnel investigation interview and other rel-\nevant evidence in order to decide if work rules were in fact\nviolated and whether a predisciplinary meeting should fol-\nlow. If the IRT decides work rules were violated, the matter\nproceeds to the Disciplinary Action Review Team (“DART”).\n In plaintiﬀ’s case, Champagne, Bambrough, and a security\ndirector were on the IRT. They decided that plaintiﬀ used ex-\ncessive force when other options were available to him. As a\nresult, Hicks searched Human Resources’s disciplinary data-\nbase in order to prepare a list of other employees who have\nincurred discipline for similar misconduct. The DART uses\nthat list, which includes information about the individual em-\nployee’s rule violation, discipline received, rank, and employ-\ning institution, as a general guide while it evaluates the rele-\nvant employee’s rule violation(s). At the end of its review pro-\ncess, the DART determines if discipline is going to be imposed\nand, if so, at what level. Ultimately, the appointing authority\ndecides what level of discipline to impose.\n At plaintiﬀ’s DART meeting, which involved the same IRT\nmembers, Hicks gave examples where correctional oﬃcers\nhad engaged in excessive use of force and had not been termi-\nnated. There was only one incident after 2010 where excessive\nuse of force resulted in the oﬃcer’s termination. 6 According\nto Hicks, the DART had a long discussion about these other\ndiscipline cases and members of the DART indicated that\nmaybe the other cases should have resulted in termination.\n\n\n\n 6Hicks only considered incidents after 2010 because the work rules\nchanged in 2010.\n\fNo. 18-2561 9\n\n Finally, plaintiﬀ’s case was sent to a Management Advi-\nsory Team (“MAT”) to review whether the appointing author-\nity could impose a discipline above the policy recommenda-\ntion. Under DOC policy, discipline should be assigned ac-\ncording to the progression schedule outlined in Executive Di-\nrective #2. For example, a ﬁrst violation results in a written\nreprimand and a second violation results in a one-day sus-\npension without pay. Based on this schedule, it ordinarily\ntakes six violations before an employee’s punishment would\nwarrant discharge. And according to state human resources\nrules eﬀective in 2014, discipline involving a ﬁve-day suspen-\nsion or greater, or any skips in the progression, would un-\ndergo an additional review by a MAT.\n To prepare the MAT to review plaintiﬀ’s case, Hicks\ndrafted a summary document showing plaintiﬀ’s seniority\ndate, classiﬁcation, where he worked, any prior discipline,\nany performance evaluations, what the appointing authority\nwas requesting, why it was requested, and whether or not\nplaintiﬀ had acted like that in the past. As discussed below,\nplaintiﬀ ultimately received discipline that required a signiﬁ-\ncant skip in the progression.\n 3. Plaintiﬀ’s Use of Force Review\n Separate from the personnel investigation, Champagne\nalso requested an independent “Use of Force Review,”\nwherein experts determine if the use of force was appropriate\nand proper. The experts review incident reports written about\n\f10 No. 18-2561\n\nthe incident, view videos or photos related to the incident,\nand conduct interviews.\n Experts Jason Achterberg, the Security Director at Stanley\nCorrectional Institution, and Hans Kuster, a Captain at Osh-\nkosh Correctional Institution, reviewed plaintiﬀ’s use of force.\nTheir review consisted of conducting a site visit to learn more\nabout the CIP, watching the video of the incident, and inter-\nviewing plaintiﬀ and Fulton. In his interview with these ex-\nperts, plaintiﬀ explained that he saw Haro give him a target\nglance and that he felt Haro was going to hit him. Achterberg\nand Kuster, however, felt plaintiﬀ had the opportunity to dis-\nengage; they did not feel that Haro was an immediate threat.\nAccordingly, they concluded that plaintiﬀ used unreasonable\nforce to control Haro and they submitted a report to that eﬀect\nto Champagne.\n 4. Plaintiﬀ’s Discharge\n Champagne sent plaintiﬀ a letter dated December 22,\n2014, informing him that he was discharged from his employ-\nment at the DOC. She explained that the basis for the dis-\ncharge was his violation of three DOC Work Rules:\n Work Rule #2: Failure to comply with written\n policies and procedures including but not lim-\n ited to Executive Directives and Administrative\n Directives; and\n Work Rule #6: Falsiﬁcation of records, know-\n ingly giving false information or knowingly\n permitting, encouraging or directing others to\n do so. Failing to provide truthful, accurate and\n complete information when required; and\n\fNo. 18-2561 11\n\n Work Rule #11: Threatening, attempting or in-\n ﬂicting bodily harm on another employee, in-\n mate, juvenile, oﬀender or the public.\nThe letter further explained that the decision to charge him\nwith these rule violations stemmed from information learned\nthrough the personnel investigation. In relevant part, the let-\nter described the decentralization and concluded that this was\na use of “excessive force” in violation of DAI Policy\n#306.07.01: Use of Force 7 and DAI Policy #306.07.02: Princi-\nples of Subject Control. 8 The letter also stated that the incident\nreport plaintiﬀ ﬁlled out “did not provide accurate infor-\nmation of the events leading up to [his] use of force” because\nthe video evidence showed the inmate in the position of at-\ntention and did not support plaintiﬀ’s claim that the inmate\nassumed a “ﬁght position.” Finally, the letter concluded: “Alt-\nhough you have not had any disciplinary action within the\nlast 12 months, based on the seriousness of your violations, I\nhave just cause to escalate progressive discipline to termina-\ntion.”\n\n\n\n 7 This policy describes the use of force generally; it defines “[n]on-\ndeadly force” as that “[f]orce which the user reasonably believes will not\ncreate a substantial risk of causing death or great bodily injury to another.”\nAnd it permits correctional staff to use nondeadly force “if the user of force\nreasonably believes it is immediately necessary to realize one of” several\ndefined purposes. The defined purposes include, among others: to pre-\nvent death or bodily injury to oneself or another; to prevent unlawful\ndamage to property; to control a disruptive inmate; and to enforce a DOC\nrule, a posted policy or procedure, or an order of staff member.\n 8 The “Principles of Subject Control” policy refers to a system of ver-\nbalization skills and physical alternatives that enhance security for staff\nand inmates.\n\f12 No. 18-2561\n\n Champagne was the ﬁnal decisionmaker with respect to\nthe discipline imposed on plaintiﬀ.\n 5. A Coworker’s Use of Force\n On May 15, 2014, approximately one month before plain-\ntiﬀ’s interaction with Haro, another oﬃcer—Terry Korte—\nused force on another inmate at St. Croix. Korte is a white cor-\nrectional sergeant and a citizen of the United States. Speciﬁ-\ncally, Korte pushed an inmate into a wall several times and\ngrabbed the inmate’s head with both hands because the in-\nmate was not standing in the position of attention and the in-\nmate was laughing in violation of the CIP’s rules. 9 Korte did\nnot place the inmate in handcuﬀs. After the incident, Korte\ndid not ﬁle an incident report or immediately notify a super-\nvisor. 10 Instead, Korte prepared a “learning instruction,” a\nform in which the author describes what he observed. Nota-\nbly, Korte’s learning instruction did not contain any infor-\nmation about Korte pushing the inmate into the wall or grab-\nbing the inmate’s head.\n There was a personnel investigation into Korte’s use of\nforce. 11 As part of the investigation, Korte and some inmates\nsat for interviews. Korte explained in his interview that he did\nnot remember pushing the inmate into the wall or grabbing\nthe inmate’s head, as the video indicated. Ultimately, the in-\nvestigators determined that Korte violated Work Rules #2, #4,\n\n 9Surveillance video also captured Korte’s use of force, but that video\nis not in the record.\n 10\n At his deposition, Korte explained that there was no supervisor on\nduty for him to notify.\n 11 Champagne and Bambrough were also on the IRT and the DART in\n\nKorte’s case.\n\fNo. 18-2561 13\n\nand #11. The investigation summary does not cite Korte for\nproviding false information, even though his learning instruc-\ntion omits any description of how he used force.\n Champagne was the ﬁnal decisionmaker as to Korte’s\npunishment. She sent him a letter, dated August 14, 2014, in-\nforming him that he was being suspended without pay for\none day. The basis for the suspension was his violations of\nthree DOC Work Rules #2, #4, and #11. Work Rule #4 states:\n“Negligence in the performance of assigned duties or failure\nto exercise good judgment in dealing with employees, juve-\nniles, oﬀenders or the public.” The letter then described the\nuse of force Korte applied: “You began verbally interacting\nwith the inmate; however, you continued to place your hands\non the inmate, pushing him into the wall several times, and\non one occasion during your interaction, you grabbed the in-\nmate by the head with both hands.” It did not, however, state\nthat Korte’s actions constituted excessive use of force or a vi-\nolation of DAI Policy #306.07.01: Use of Force. The letter ex-\nplained that although Korte did not have a disciplinary action\nwithin the preceding year, and although the schedule of pro-\ngression indicated that a written reprimand would be the ap-\npropriate punishment, the seriousness of his misconduct war-\nranted the harsher punishment of a one-day suspension.\n 6. Plaintiﬀ’s WERC Hearing\n Plaintiﬀ appealed the termination of his employment un-\nder Wisconsin Statute § 230.44 for review by the Wisconsin\nEmployment Relations Commission (“WERC”). A two-day\nhearing before WERC Chairman James Scott followed. On the\nﬁrst day of the hearing, August 12, 2015, the following wit-\nnesses appeared: Haro, Fulton, Grady, Silao-Johnson, Achter-\nberg, Bambrough, Champagne, Hicks, and Skalski. On the\n\f14 No. 18-2561\n\nsecond day of the hearing, August 13, 2015, the parties ques-\ntioned plaintiﬀ.\n On March 9, 2016, Chairman Scott issued his Decision and\nOrder, ordering the DOC to reinstate plaintiﬀ to his position\nwithout loss of seniority and to pay plaintiﬀ all lost wages and\nbeneﬁts less any interim earnings. In order to reach that re-\nsult, Chairman Scott made several pertinent ﬁndings. He re-\njected plaintiﬀ’s purported violation of Work Rule #11 for a\nthreat or attempt to inﬂict bodily harm because the record did\nnot support Haro’s claim of injury resulting from the incident.\nHe also rejected the purported violation of Work Rule #6 for\nfalsiﬁcation of records because he determined “the video is\nnot conclusive as to what Haro was doing immediately before\nthe ‘destabilization,’” so the video could not “directly contra-\ndict[]” plaintiﬀ’s version of the events. Thus, he concluded the\nonly basis for discipline was Work Rule #2.\n Chairman Scott then examined that purported violation\nmore closely. He decided that the DOC did not carry its bur-\nden of proving that plaintiﬀ violated Work Rule #2 because:\n(1) the DOC relied on speculative testimony from Achterberg\nabout the use of force; (2) the DOC’s witnesses had diﬀerent\nopinions about the custom or expectation of using handcuﬀs\nafter a use of force, which led him to conclude that an error of\njudgment in interpreting such “a complex set of policies” does\nnot create just cause for discharge; (3) Champagne’s explana-\ntion of the diﬀerence in treatment between plaintiﬀ’s and\nKorte’s use of force was “less than convincing” because it\nturned on plaintiﬀ’s decision to wait ﬁfteen minutes until his\nsupervisor’s shift started before reporting the incident, and\nnot on the relative violence of the two uses of force; (4) there\nwere inconsistencies in the DOC’s application of its rules and\n\fNo. 18-2561 15\n\npolicies, as Hicks’s research uncovered incidents where staﬀ\nhad used excessive force and were not terminated, but the\nDOC did not present evidence about the details of those inci-\ndents; and (5) the six-month delay between the incident and\nplaintiﬀ’s discharge suggested the DOC discharged plaintiﬀ\nonly “to avoid criticism of the delay.”\n Then, on July 28, 2016, Chairman Scott issued a Decision\nand Order on plaintiﬀ’s request for fees and costs. In order to\naward fees and costs, he had to decide whether the DOC was\n“substantially justiﬁed,” as deﬁned by Wisconsin Statute\n§ 227.485(2)(f), in taking its position that it had just cause to\ndischarge plaintiﬀ. To prove its position was substantially jus-\ntiﬁed, the DOC had to demonstrate that its decision had a rea-\nsonable basis in truth for the facts alleged, a reasonable basis\nin law for the theory promulgated, and that there was a rea-\nsonable connection between the facts alleged and the legal\ntheory advanced. Sheely v. Wis. Dep’t of Health & Soc. Servs.,\n442 N.W.2d 1, 9 (Wis. 1989). Chairman Scott decided the DOC\ncould not substantially justify its position (to discharge plain-\ntiﬀ) because the results of the DOC’s personnel investigation\nwere inconclusive. And Chairman Scott further explained:\n DOC’s apparent inability to substantially justify\n its position is compounded by its inexplicable\n diﬀerence in treatment between [plaintiﬀ] and\n coworker Terry Korte…. As discussed in the de-\n cision on the merits, the explanation for the dif-\n ference in treatment was nonsensical. DOC\n completely undermined its case by oﬀering this\n transparently false explanation for an obvious\n diﬀerential in treatment. But for that position\n this could arguably be a case where DOC made\n\f16 No. 18-2561\n\n a judgment call on a relatively close case. The\n inexplicable diﬀerential in treatment leads to\n the conclusion that there was no reasonable ba-\n sis in truth for the facts as alleged.\n B. Procedural Background\n Plaintiﬀ ﬁled his complaint in federal court on February\n21, 2017. He amended his compliant twice. The second\namended complaint, ﬁled on June 30, 2017, is the operative\ncomplaint; it includes four counts: Count I alleges discrimina-\ntion under Title VII against the DOC; Counts II and III allege,\npursuant to § 1983, a violation of the Equal Protection Clause\nof the Fourteenth Amendment against the individual defend-\nants and the DOC; and Count IV alleges discrimination under\n§ 1981 against all defendants.\n Defendants ﬁled a motion for summary judgment on\nMarch 2, 2018, arguing that plaintiﬀ lacked evidence to prove\nintentional discrimination under Title VII or § 1983. Plaintiﬀ\nﬁled his response on March 23, 2018, arguing that Korte is a\nsimilarly-situated employee and that defendants’ diﬀering\ntreatment of him and Korte is evidence he was terminated\nbased on his race or national origin, and that defendants’ prof-\nfered nondiscriminatory reasons for his discharge were pre-\ntextual. Defendants ﬁled their reply on April 23, 2018.\n The district court issued its decision on June 19, 2018,\ngranting summary judgment for defendants. The court de-\ncided that the record did not support an inference that Korte’s\nconduct was comparable to plaintiﬀ’s because the personnel\ninvestigation and the use of force review found that plaintiﬀ’s\nuse of force was unreasonable, and that plaintiﬀ was not\ntruthful when interviewed. And even if a reasonable jury\n\fNo. 18-2561 17\n\ncould ﬁnd similar conduct, the court reasoned that plaintiﬀ\nhad not established that defendants’ proﬀered reasons for his\ndischarge were pretextual. This appeal followed.\n II. Discussion\n “The court shall grant summary judgment if the movant\nshows that there is no genuine dispute as to any material fact\nand the movant is entitled to judgment as a matter of law.”\nFed. R. Civ. P. 56(a). We review a grant of summary judgment\nde novo, drawing all reasonable inferences for the nonmoving\nparty and viewing the record in the light most favorable to\nthe nonmoving party. Barbera v. Pearson Educ., Inc., 906 F.3d\n621, 628 (7th Cir. 2018). We may aﬃrm the grant of summary\njudgment on any ground supported by the record, as long as\nthe parties adequately presented the issue before the district\ncourt and the nonmoving party had an opportunity to contest\nit. O’Brien v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018).\n A. Discrimination Claims\n The complaint alleges race and national origin discrimina-\ntion in violation of Title VII and the Equal Protection Clause\nof the Fourteenth Amendment. Under Title VII, it is unlawful\nfor an employer to “discriminate against any individual ... be-\ncause of such individual’s race ... or national origin.” 42 U.S.C.\n§ 2000e–2(a)(1); see also Lauderdale v. Ill. Dep’t of Human Servs.,\n876 F.3d 904, 909 (7th Cir. 2017). Similarly, the Equal Protec-\ntion Clause protects against intentional discrimination on the\nbasis of race or national origin, and 42 U.S.C. § 1983 provides\nan employee subjected to such discrimination a path to relief.\nSee Lauderdale, 876 F.3d at 909–10. We evaluate discrimination\nclaims brought under both Title VII and § 1983 using the same\n\f18 No. 18-2561\n\nstandard. Egonmwan v. Cook Cty. Sheriﬀ’s Dep’t, 602 F.3d 845,\n850 n.7 (7th Cir. 2010). 12\n Discrimination claims may survive summary judgment\nwhen a plaintiﬀ presents evidence that permits a reasonable\nfactﬁnder to conclude that the employer took an adverse ac-\ntion against the employee because of the employee’s race or\nnational origin. See Ortiz v. Werner Enters., Inc., 834 F.3d 760,\n765 (7th Cir. 2016). In deciding motions for summary judg-\nment, courts must consider the evidence as a whole. See id.\n Here, plaintiﬀ seeks to establish discrimination by pre-\nsenting evidence that despite the similarity between his mis-\nconduct and Korte’s, the DOC, acting through Champagne,\ngave plaintiﬀ a more severe punishment. In addition to this\ncomparative evidence, plaintiﬀ argues that the nondiscrimi-\nnatory reasons defendants gave for deciding to discharge him\nwere merely a guise to cover defendants’ discriminatory dis-\ncipline.\n 1. Comparable Misconduct\n Discrimination may be inferred when an employer treats\nan employee in a protected class less favorably than it treats a\nsimilarly-situated employee outside that class. Coleman v. Do-\nnahoe, 667 F.3d 835, 846 (7th Cir. 2012). To determine whether\n\n\n 12 We aﬃrm the district court’s grant of summary judgment in favor\nof all defendants on plaintiﬀ’s 42 U.S.C. § 1981 claim. Section 1981 “pro-\nhibits race discrimination in the making and enforcing of contracts.”\nO’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). But, § 1981\n“does not create a private right of action against state actors.” Campbell v.\nForest Pres. Dist. of Cook Cty., 752 F.3d 665, 671 (7th Cir. 2014). Ra-\nther, § 1983 is “the exclusive remedy for violations of § 1981 committed by\nstate actors.” Id.\n\fNo. 18-2561 19\n\nemployees are similarly situated, courts ask “whether the\nother employees’ situations were similar enough to the plain-\ntiﬀ’s that it is reasonable to infer, in the absence of some other\nexplanation, that the diﬀerent treatment was a result of race\nor some other unlawful basis.” Luster v. Ill. Dep’t of Corr., 652\nF.3d 726, 730 (7th Cir. 2011). In cases such as this, where the\nplaintiﬀ alleges the employer disciplined him more harshly\nthan his comparator, “‘the most-relevant similarities are those\nbetween the employees’ alleged misconduct, performance\nstandards, and disciplining supervisor,’ rather than job de-\nscription and duties.” Coleman, 667 F.3d at 849 (quoting Rodg-\ners v. White, 657 F.3d 511, 518 (7th Cir. 2011)). “[T]he critical\nquestion is whether [the employees] have engaged in conduct\nof comparable seriousness.” Peirick v. Ind. Univ.-Purdue Univ.\nIndianapolis Athletics Dep’t, 510 F.3d 681, 689 (7th Cir. 2007).\nConduct may be comparably serious if it violates the same\nrule or is of a similar nature. Id.\n Plaintiﬀ maintains that the underlying misconduct in his\ncase is comparable to Korte’s, and as a result, the discrepancy\nin the charges he and Korte received is evidence that he was\ndischarged because of his race and national origin. Defend-\nants disagree that Korte engaged in similar misconduct. They\ncompare the investigatory and disciplinary documents in\nplaintiﬀ’s case to those in Korte’s case. While both personnel\ninvestigations found that plaintiﬀ and Korte violated Work\nRule #2 for failing to comply with policies and Work Rule #11\nfor threatening, attempting to inﬂict, or inﬂicting bodily harm\non an inmate, only plaintiﬀ’s personnel investigation found a\nviolation of Work Rule #6 for falsifying records. Korte did not\nreceive that charge. Relatedly, only plaintiﬀ’s discharge letter\n\f20 No. 18-2561\n\nreferenced the use of “excessive force” and a violation of DAI\nPolicy #306.07.01: Use of Force.\n Whether plaintiﬀ and Korte were charged with violating\nthe same set of rules is not dispositive. Plaintiﬀ may establish\nthat his use of force was as serious as Korte’s by showing that\ntheir misconduct was of a similar nature. See Peirick, 510 F.3d\nat 689. On this point, plaintiﬀ prevails.\n Korte pushed an inmate into a wall several times and\ngrabbed the inmate by the head after the inmate refused to\nstand in line and was laughing. Plaintiﬀ decentralized an in-\nmate after the inmate had recently ignored two separate or-\nders from Fulton, disregarded policy by cutting in line to use\nthe restroom, ignored plaintiﬀ’s verbal commands, and gave\nplaintiﬀ a target glance while stating expletives. Plaintiﬀ also\nheld the inmate on the ground for approximately two minutes\nuntil the inmate stopped his “passive resistance.”\n Although there are distinctions between the circum-\nstances leading up to each oﬃcer’s use of force and the way\nin which each oﬃcer used force, both oﬃcers used force on\ninmates who were violating the CIP’s rules, and fortunately,\nneither inmate sustained injuries. It is not for us to determine\nwhether either oﬃcer’s use of force was appropriate. We only\ndecide whether Korte is a useful comparator in a discrimina-\ntion analysis. And while we do not condone either plaintiﬀ’s\nor Korte’s actions, we note that plaintiﬀ was dealing with a\nless compliant inmate than Korte was, which meant the need\nfor a response in plaintiﬀ’s case was arguably greater than in\nKorte’s case. Both oﬃcers responded by restricting the in-\nmates’ movement—Korte forced the inmate’s body into a wall\nand plaintiﬀ forced the inmate’s body onto the ground. It is\nundisputed that plaintiﬀ incapacitated his inmate longer than\n\fNo. 18-2561 21\n\nKorte did, but it is also undisputed that plaintiﬀ kept the in-\nmate on the ground because the inmate was engaging in pas-\nsive resistance. There is no indication that the inmate on\nwhich Korte used force passively resisted him. On balance,\nwe view these use of force incidents as having a similar na-\nture.\n Defendants maintain that Korte is not a useful comparator\nbecause unlike plaintiﬀ, Korte did not lie during his personnel\ninvestigation when asked about his conduct. Defendants base\ntheir position that Korte did not lie on the following question\nand answer series during his personnel investigation: The in-\nterviewer asked Korte: “Do you recall grabbing [the inmate]\nby the face?” and Korte responded: “No, did I? I know you\nhave it on camera, did I really do that? Uh, no.” Such testi-\nmony either shows that Korte equivocated in responding to\nthe question or that he did not remember his actions; it does\nnot prove that Korte did not lie during an investigation. More-\nover, the record shows that when Korte ﬁlled out the “learn-\ning instruction” after the incident, he declined or forgot to in-\nclude any mention of how he pushed an inmate into the wall\nand grabbed the inmate’s head. Such a glaring omission\nwould tend to show that the author was less than forthright.\nAs a result, it is not the case that Korte’s reporting of his use\nof force was so thorough and forthcoming that it renders him\nineligible to serve as a comparator here. To the extent defend-\nants believed there were discrepancies in plaintiﬀ’s reporting\nof his use of force, discrepancies of a similar nature also ex-\nisted in Korte’s reports.\n Consequently, a reasonable jury could conclude that\nplaintiﬀ and Korte engaged in comparably serious conduct.\n\f22 No. 18-2561\n\nIn turn, we consider whether there is a legitimate nondiscrim-\ninatory reason behind defendants’ decision to discharge\nplaintiﬀ for his use of force, but only to suspend Korte for one\nday for his use of force.\n 2. Pretext for Discriminatory Charges and Punishment\n An inference of discrimination may follow when the em-\nployer’s purported nondiscriminatory reason for taking an\nadverse action against the employee was pretextual, meaning\nit was “a lie” or “a phony reason.” Smith v. Chi. Transit Auth.,\n806 F.3d 900, 905 (7th Cir. 2015) (quotation marks and citation\nomitted). To show pretext, plaintiﬀ must “identify such weak-\nnesses, implausibilities, inconsistencies, or contradictions” in\ndefendants’ stated reasons for their allegedly discriminatory\nactions “that a reasonable person could ﬁnd [it] unworthy of\ncredence.” Coleman, 667 F.3d at 852–53 (alteration in original)\n(quoting Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792\n(7th Cir. 2007)).\n In other words, a plaintiﬀ would not succeed on her dis-\ncrimination claim if the employer “honestly believed” its\nstated rationale for its adverse employment action, even if this\nhonest belief was “foolish, trivial, or baseless.” Id. at 853\n(quoting Boumehdi, 489 F.3d at 792). But, a plaintiﬀ would win\nher case if she showed that “the stated reason, even if actually\npresent to the mind of the employer, wasn’t what induced\n[the employer] to take the challenged employment action,”\nbecause that would constitute pretext. Id. (quoting Forrester v.\nRauland–Borg Corp., 453 F.3d 416, 418 (7th Cir. 2006)); see also\nO’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.\n2011) (“The question is not whether the employer’s stated rea-\n\fNo. 18-2561 23\n\nson was inaccurate or unfair, but whether the employer hon-\nestly believed the reasons it has oﬀered to explain the dis-\ncharge.”).\n To explain the diﬀerences in plaintiﬀ’s and Korte’s charges\nand punishment, defendants rely on Champagne’s belief that\nplaintiﬀ’s use of force was more extreme than Korte’s, and the\nnumber of investigators and reviewers who found plaintiﬀ’s\nuse of force to be unreasonable. Plaintiﬀ challenges defend-\nants’ ability to argue that their reasons were not pretextual in\nlight of Chairman Scott’s ﬁndings and conclusions. 13 Alterna-\ntively, plaintiﬀ argues that a reasonable jury could ﬁnd pre-\ntext because Champagne’s explanations for the diﬀerent dis-\nciplinary decisions evolved over time and defendants’ rea-\nsons for charging plaintiﬀ with falsifying documents were di-\nvorced from the factual record.\n i. Issue Preclusion\n Given Chairman Scott’s ﬁndings and conclusions that\nthere was “no credible evidence” to show plaintiﬀ violated\nWork Rules #6 and #11, there was insuﬃcient evidence to\nshow that plaintiﬀ violated Work Rule #2, “Champagne[’s]\nexplanation for the diﬀerences in treatment between [plaintiﬀ\nand Korte was] less than convincing,” and the DOC’s position\nwas not “substantially justiﬁed,” plaintiﬀ argues that issue\n\n\n\n\n 13 Plaintiff acknowledges that issue preclusion does not apply to his\nTitle VII claim. See Univ. of Tenn. v. Elliott, 478 U.S. 788, 796 (1986) (“Con-\ngress did not intend unreviewed state administrative proceedings to have\npreclusive effect on Title VII claims.”).\n\f24 No. 18-2561\n\npreclusion bars defendants from arguing that they had legiti-\nmate and nondiscriminatory reasons for discharging him. We\ndisagree.\n Issue preclusion seeks to “conserv[e] judicial resources[]\nand foste[r] reliance on judicial action by minimizing the pos-\nsibility of inconsistent decisions.” Taylor v. Sturgell, 553 U.S.\n880, 892 (2008) (alterations in original) (quoting Montana v.\nUnited States, 440 U.S. 147, 153–54 (1979)). It prohibits parties\nfrom relitigating an issue after a court considered the parties’\narguments on that issue and resolved it in a manner that was\nessential to the court’s judgment. Id. Federal courts apply the\npreclusion law of the state where the judgment was rendered,\nhere Wisconsin. See 28 U.S.C. § 1738; Adams v. Adams, 738 F.3d\n861, 865 (7th Cir. 2013). In Wisconsin there are two prerequi-\nsites for issue preclusion to apply: (1) “the question of fact or\nlaw that is sought to be precluded actually must have been\nlitigated in a previous action and [have been] necessary to the\njudgment”; and (2) the court must determine “whether it is\nfundamentally fair to employ issue preclusion given the cir-\ncumstances of the particular case at hand.” First Weber Grp.,\nInc. v. Horsfall, 738 F.3d 767, 773 (7th Cir. 2013) (alteration in\noriginal) (quoting Mrozek v. Intra Fin. Corp., 699 N.W.2d 54, 61\n(Wis. 2005)).\n To start, Champagne was not an adversary in the WERC\nproceeding, meaning she was not aﬀorded an opportunity to\nlitigate the issues plaintiﬀ raised there. Furthermore, there\nwas no identity of issues that were actually litigated. Chair-\nman Scott opined that Champagne’s descriptions of why she\ndisciplined plaintiﬀ more harshly than Korte were not credi-\nble, but he did so in the context of deciding whether plaintiﬀ’s\ndischarge was supported by “just cause” under Wisconsin\n\fNo. 18-2561 25\n\ncivil service laws and whether the DOC’s position was “sub-\nstantially justiﬁed.” Chairman Scott was not considering the\nprecise issue of pretext—whether the employer lied to cover\nup a discriminatory purpose. Finally, plaintiﬀ did not carry\nhis burden of proving that (despite the above issues) preclu-\nsion here would be “fundamentally fair.” See Paige K.B. ex rel.\nPeterson v. Steven G.B., 594 N.W.2d 370, 375 (Wis. 1999). Issue\npreclusion does not apply here.\n ii. Champagne’s Explanations\n As evidence of pretext, plaintiﬀ notes that Champagne’s\nreasoning for discharging him has shifted over time, and that\nthe latest explanation—that his use of force was more serious\nthan Korte’s—ﬁrst surfaced at summary judgment.\n At her deposition on July 21, 2015, Champagne explained\nwhy, within a one-month span, she suspended Korte for one\nday but terminated plaintiﬀ after both oﬃcers used force on\ninmates. She said: “[Korte] provide[d] information in the re-\nport as to what happened,” notiﬁed a supervisor, and oﬀered\nthe inmate medical attention. Then, at the WERC hearing on\nAugust 12, 2015, Champagne gave new reasons for her deci-\nsions: Korte “recognized that he was not following our proto-\ncols,” he “stopped his behavior and brought it to light with\nhis colleagues to make sure they were informed,” he “re-\nmoved himself from the situation,” he “informed the inmate\nof his rights in relation to grieving it,” and plaintiﬀ waited ﬁf-\nteen minutes before reporting his use of force to a supervisor.\nIn the declaration she ﬁled in this lawsuit on March 2, 2018,\nshe stated: “It is my opinion that the gravity of the force Korte\nused was not the same as the force [plaintiﬀ] used” because\n“Korte was verbalizing with the inmate,” he “disengaged” af-\n\f26 No. 18-2561\n\nter using force, he “admitted almost immediately that his be-\nhavior was not appropriate,” and he “immediately reported\nthe incident”; plaintiﬀ “has never, to my knowledge, recog-\nnized that his conduct was wrong.” Finally, at her deposition\non March 15, 2018, Champagne both restated some reasons\nshe had previously given—Korte immediately informed his\ncolleagues and supervisor, oﬀered the inmate medical assis-\ntance, and told the inmate that he could write a grievance or\na complaint, while plaintiﬀ did not take any of those steps—\nand she also added a new reason: plaintiﬀ used force without\nprovocation while Korte used force after provocation.\n We agree with plaintiﬀ’s position. A reasonable jury could\nconclude that Champagne’s evolving explanations support\nan inference of pretext. See Castro v. DeVry Univ., Inc., 786 F.3d\n559, 577 (7th Cir. 2015) (“As a general rule, a reasonable trier\nof fact can infer pretext from an employer’s shifting or incon-\nsistent explanations.”). Indeed, Chairman Scott, writing on\nbehalf of an independent agency, characterized Champagne’s\never-changing reasoning as “less than convincing” and “non-\nsensical.”\n Another problem with Champagne’s reasoning, in our\nview, is that it is founded on incorrect factual premises. Based\non the undisputed record: Korte did not ﬁll out an incident\nreport, plaintiﬀ did; and Korte did not notify a supervisor\nabout his use of force, plaintiﬀ did. Additionally, Champagne\nsaid the basis for her belief that Korte immediately notiﬁed\ncolleagues, oﬀered the inmate medical assistance, and in-\nformed the inmate of his right to ﬁle a grievance, was that\nsuch information appeared in the documents from the per-\nsonnel investigation. This belief was unfounded. None of the\ndocuments in the personnel investigation indicate that Korte\n\fNo. 18-2561 27\n\ndid those things. By contrast, plaintiﬀ notiﬁed the supervisor\nas soon as he arrived on duty after the incident. Furthermore,\nplaintiﬀ asserts (and we accept as true) that he verbally of-\nfered medical assistance to the inmate, but the inmate de-\nclined it. And ﬁnally, plaintiﬀ says he was not trained to ad-\nvise inmates of their right to ﬁle a grievance after a use of\nforce; it was his understanding that the supervisor would pro-\nvide this information. If Champagne’s logic about what an of-\nﬁcer can do in mitigation before, during, and after a use of\nforce had been applied accurately to the facts in the record,\nplaintiﬀ should have been given more credit in the review of\nhis misconduct. Instead, Champagne appears to have given\nKorte the beneﬁt of the doubt while depriving plaintiﬀ of his\nshare.\n Defendants respond that Champagne’s testimony, even if\nbased on incorrect factual premises, is not evidence that she\nis lying about the reason she decided to terminate plaintiﬀ.\nAnd defendants attempt to focus the court’s attention on the\nreasons Champagne gave in plaintiﬀ’s discharge letter, noting\nthat those reasons “are consistent with the video and at least\nten other people.” But as Chairman Scott opined, “[t]he video\nis at best inconclusive as to whether the raising of Haro’s arms\nsignaled an attempt to initiate a ﬁght or whether the ‘target\nglance’ occurred.” And we do not agree with the premise of\ndefendants’ argument—that because other people believed\nthat plaintiﬀ used excessive force, Champagne’s decision to\nterminate plaintiﬀ could not have been discriminatory. A rea-\nsonable jury could ﬁnd that Champagne’s reasoning was too\ndetached from the actual facts involved in the two uses of\nforce. From this ﬁnding, a reasonable jury could infer that\nChampagne’s proﬀered reasons were pretextual.\n\f28 No. 18-2561\n\n iii. The Falsiﬁcation Charge\n As further evidence of pretext, plaintiﬀ raises the issue of\ndefendants’ decision to charge him with falsifying documents\nwhen defendants did not bring the same charge against Korte.\nPlaintiﬀ had begun ﬁlling out an incident report before in-\nforming Grady about his use of force, and he completed that\nform before the end of his shift. He received the falsifying doc-\numents charge because defendants believed there were dis-\ncrepancies between his descriptions in the incident report and\nwhat they saw in the video. By contrast, Korte wrote a learn-\ning instruction instead of ﬁlling out an incident report, and\nnot once did he describe his use of force in that learning in-\nstruction. Defendants did not charge Korte with falsiﬁcation\nbecause he told the personnel investigators that he did not re-\nmember using force on the inmate, and Champagne believed\nthat response was truthful. Bambrough also indicated she was\nnot concerned by Korte’s response.\n It is diﬃcult to square defendants’ mistrust of plaintiﬀ’s\nreporting when they easily accepted Korte’s reporting despite\nits similar ﬂaws. As we noted above, the video does not estab-\nlish what exactly transpired between plaintiﬀ and Haro—the\nvideo does not record who said what to whom or when, and\nthe video does not clearly show what subtle movements\nplaintiﬀ or Haro made. Such details would be necessary to\nevaluate whether plaintiﬀ falsely reported what prompted\nhim to use force and the way in which he used force. It is de-\nfendants’ prerogative to evaluate the veracity of their em-\nployee’s narratives, but where defendants do so inconsist-\nently, red ﬂags arise. See Loudermilk v. Best Pallet Co., 636 F.3d\n312, 315 (7th Cir. 2011) (“[A]n employer who advances a ﬁshy\nreason takes the risk that disbelief of the reason will support\n\fNo. 18-2561 29\n\nan inference that it is a pretext for discrimination.”). A reason-\nable jury could conclude that defendants charged plaintiﬀ\nwith falsiﬁcation because of his race or national origin, not be-\ncause defendants truly believed that plaintiﬀ was intention-\nally inaccurate in his reporting of his use of force.\n * * *\n For the foregoing reasons, we agree that plaintiﬀ raised a\ntriable issue of fact as to whether the nondiscriminatory rea-\nsons defendants gave for terminating plaintiﬀ were pre-\ntextual, and whether the real reason he did not receive a one-\nday suspension—or some other punishment short of dis-\ncharge—was because he is Latino and a Brazilian citizen. As\na result, we reverse the district court’s award of summary\njudgment to the DOC on plaintiﬀ’s Title VII claim and to\nChampagne on plaintiﬀ’s equal protection claim brought un-\nder § 1983.\n We do not reach the same conclusion as to Bambrough and\nHicks because other than noting that they were each actors at\ndiﬀerent points in the personnel investigation, plaintiﬀ did\nnot develop any arguments about their personal involvement\nin the decision to discharge him. Therefore, we aﬃrm the dis-\ntrict court’s decision to award summary judgment to Bam-\nbrough and Hicks. See Carmody v. Bd. of Trs. of Univ. of Ill., 893\nF.3d 397, 402–03 (7th Cir. 2018) (liability under § 1983 requires\nevidence of personal involvement in the alleged discrimina-\ntion).\n B. Eleventh Amendment\n Turning next to plaintiﬀ’s equal protection allegations\nagainst the DOC, defendants argue that the Eleventh Amend-\nment immunizes them from claims brought pursuant to\n\f30 No. 18-2561\n\n§ 1983. While defendants raise this argument for the ﬁrst time\non appeal, we may forgive the waiver of an Eleventh Amend-\nment defense given that the defense is based on comity. Hig-\ngins v. Mississippi, 217 F.3d 951, 953–54 (7th Cir. 2000). “The\nEleventh Amendment bars private litigants’ suits against non-\nconsenting states in federal courts, with the exception of\ncauses of action where Congress has abrogated the states’ tra-\nditional immunity through its powers under the Fourteenth\nAmendment.” Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432\nF.3d 746, 748 (7th Cir. 2005). This immunity extends to state\nagencies and state oﬃcials in their oﬃcial capacities. Id. There\nis no dispute that the DOC is a nonconsenting state agency,\nand Congress has not abrogated Wisconsin’s Eleventh\nAmendment immunity for plaintiﬀ’s claims brought pursu-\nant to § 1983. 14 Therefore, the Eleventh Amendment bars\nplaintiﬀ’s equal protection claim against the DOC. 15\n C. Qualiﬁed Immunity\n Finally, though the individual defendants did not assert a\nqualiﬁed immunity defense in their motion for summary\n\n\n 14Congress has abrogated state sovereign immunity with respect to\nTitle VII. See Carmody, 893 F.3d at 403 (citing Fitzpatrick v. Bitzer, 427 U.S.\n445, 456 (1976)). Thus, the Eleventh Amendment does not bar plaintiff’s\nTitle VII claims.\n 15Defendants also argue that plaintiff may not pursue his equal pro-\ntection claim against the DOC because it is not a “person” under § 1983.\nSee Duncan v. State of Wis. Dep’t of Health & Family Servs., 166 F.3d 930, 935\n(7th Cir. 1999) (“[N]either the state agency itself nor the state employees\nin their official capacity can be sued for retrospective monetary relief, for\nthe simple reason that the state is not a ‘person’ for purposes of 42 U.S.C.\n§ 1983.”). We agree this is an alternate basis from which we may affirm the\ndistrict court’s summary judgment decision as to this claim (Count III).\n\fNo. 18-2561 31\n\njudgment, they did raise it in their answer to plaintiﬀ’s second\namended complaint. Plaintiﬀ does not challenge their ability\nto raise this defense on appeal. As Champagne is the only re-\nmaining individual defendant, we need only consider\nwhether qualiﬁed immunity shields her from liability on\nplaintiﬀ’s equal protection claim.\n Qualiﬁed immunity protects an oﬃcial from money dam-\nages “unless a plaintiﬀ pleads facts showing (1) that the oﬃ-\ncial violated a statutory or constitutional right, and (2) that the\nright was ‘clearly established’ at the time of the challenged\nconduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). A right\nis clearly established when existing precedent places it “be-\nyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quot-\ning Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). In short, “im-\nmunity protects ‘all but the plainly incompetent or those who\nknowingly violate the law.’” Id. (quoting Mullenix, 136 S. Ct.\nat 308).\n Defendants argue that not a single case existed as of De-\ncember 2014, when Champagne decided to terminate plain-\ntiﬀ, that would have alerted her that this scenario was uncon-\nstitutional. We disagree. Plaintiﬀ presented suﬃcient evi-\ndence such that a reasonable jury could ﬁnd that Champagne\nterminated plaintiﬀ because of his race and national origin.\nAnd if a jury draws that inference, it is of course true that\nChampagne’s actions would violate clearly established law. It\nis well-established that terminating an employee on the basis\nof his protected status—including race or national origin—vi-\nolates the Equal Protection Clause of the Fourteenth Amend-\nment. Cf. Lauderdale, 876 F.3d at 909 (citing Hayden ex rel. A.H.\nv. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 577 (7th Cir. 2014);\n\f32 No. 18-2561\n\nBurks v. Wis. Dep't of Transp., 464 F.3d 744 (7th Cir. 2006)); Cole-\nman, 667 F.3d at 859. Therefore, qualiﬁed immunity does not\nshield Champagne from liability here.\n III. Conclusion\n For the foregoing reasons, we AFFIRM in part and REVERSE\nand REMAND in part the judgment of the district court. We af-\nfirm the district court’s decision to award summary judgment\nto Bambrough and Hicks on plaintiff’s claims brought pursu-\nant to § 1983 (Count II); to the DOC on plaintiff’s claims\nbrought pursuant to § 1983 (Count III); and to all defendants\non plaintiff’s § 1981 claim (Count IV). But we reverse and re-\nmand the district court’s decision involving plaintiff’s Title\nVII claim against the DOC (Count I) and equal protection\nclaim against Champagne brought under § 1983 (Count II).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370583/", "author_raw": "Joel Martin Flaum"}]}	FLAUM	BARRETT	SCUDDER	1	{"FLAUM": ", Circuit", "BARRETT": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593330/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,331		El Hadj Hamidou Barry v. William P. Barr	2019-02-22	18-2334	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "BRENNAN, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐2334 \nEL HADJ HAMIDOU BARRY, \n Petitioner, \n v. \n\nWILLIAM P. BARR, \nAttorney General of the United States, \n Respondent. \n ____________________ \n\n Petition for Review of an Order of the \n Board of Immigration Appeals. \n No. A205‐830‐004. \n ____________________ \n\n ARGUED NOVEMBER 9, 2018 — DECIDED FEBRUARY 22, 2019 \n ____________________ \n\n Before BAUER, BRENNAN, and SCUDDER, Circuit Judges. \n BRENNAN, Circuit Judge. El Hadj Hamidou Barry, a native \nand citizen of Guinea, applied for deferral of his removal from \nthe United States under the United Nations Convention \nAgainst Torture. An immigration judge denied Barry’s appli‐\ncation because Barry failed to show if removed to Guinea he \nlikely would be tortured. The Board of Immigration Appeals \naﬃrmed. Barry now petitions this court for review, claiming \n\f2 No. 18‐2334 \n\nif removed to Guinea he will be tortured because of his \npolitical and familial aﬃliations and his sexual orientation. \nBarry has failed to satisfy his burden to substantiate these \nclaims with evidence, so we deny his petition. \n I. \n Barry was born and grew up in Guinea. His father was a \nmember of the Union for New Republic (“UNR”), an \nopposition political party in Guinea during the 1990s. In the \npast, the Guinean government—controlled by the ruling \npolitical party at that time—took drastic measures to locate \nBarry’s father and prevent his political activities. Barry testi‐\nfied at his immigration hearing that Guinean soldiers showed \nup at his home when he was eight years old, stabbed him in \nthe thigh with a machete, and threatened to cut oﬀ his leg to \nelicit his father’s whereabouts from his mother. When his \nmother did not comply, the soldiers beat her, too. Barry’s \nmother testified before the immigration judge in support of \nBarry’s application for deferral under the Convention Against \nTorture (“CAT”), reiterating the incident with the soldiers as \nBarry described it. Barry is no longer in touch with his father \nand has no current aﬃliation with any Guinean political \nparty, including the UNR. Moreover, a diﬀerent political \nparty with a new president is now in power in Guinea. \n In 1998, shortly after the incident with the soldiers, Barry \nand his mother left Guinea and arrived in the United States. \nBarry was admitted as a temporary visitor. Having never \nreturned to Guinea, he is now thirty years old and has been \nliving in the United States for over twenty years. Around \n2009, Barry committed various crimes, including robbery, \ncontrolled substances oﬀenses, and possession of a firearm. \n\fNo. 18‐2334 3\n\nHe was convicted and sentenced for an aggravated felony \nconviction of conspiracy to commit robbery. \n The Department of Homeland Security issued Barry a \nFinal Administrative Removal Order under 8 U.S.C. § 1228(b) \nbased on his felony conviction. Barry applied for deferral of \nremoval under Article 3 of CAT, 8 C.F.R. § 1208.17.1 He also \nsought and was aﬀorded a reasonable fear interview with an \nasylum oﬃcer. During the interview, he expressed fear of \nbeing tortured if returned to Guinea due to his father’s past \npolitical aﬃliations and his sexual orientation. The asylum \noﬃcer referred Barry’s case to the Chicago Immigration \nCourt, and an immigration judge held a hearing to assess the \nmerits of Barry’s deferral claim. \n Barry and his mother testified at the hearing. They each \ndescribed the soldier stabbing incident, the country \nconditions in Guinea, and Barry’s bisexuality. Barry testified \nthat when he was a sophomore in high school, he was told \nanecdotally by “another African guy” that Guinean civilians \nhave tortured and beaten to death gay men living in Guinea. \nBarry explained while there have not been any reported \nincidents of Guinean police prosecuting homosexuals under \nGuinean laws criminalizing homosexual activity, he believes \nmost homosexual behavior is not reported to the police \nbecause Guinean civilians routinely administer “street \njustice” to gay individuals. \n\n \n 1 Barry also requested withholding of removal under the Immigration \n\nand Nationality Act § 241 (b)(3), see 8 U.S.C. § 1231(b)(A), but at his hearing \nconceded his conviction for conspiracy to commit robbery constitutes a \n“particularly serious crime,” making him ineligible for withholding. See 8 \nU.S.C. § 1231(b)(3)(B)(ii); see also 8 C.F.R. § 1208.16(d)(2). \n\f4 No. 18‐2334 \n\n Barry married an American woman, Amber Johnson, in \nApril 2017. At his immigration hearing, he testified he had \nrelationships with “five to six” men before meeting his wife \nand, despite marrying Amber, has continued to pursue sexual \nrelations with men. Based on his plan to maintain \nextramarital sexual relations in the future, he believes \n“regular civilians” in Guinea will be able to discover his \nsexuality and “attack [him], … torture [him], kill [him]” and \n“beat [him] to death.” \n Barry’s mother testified she learned of Barry’s bisexuality \nwhen he was in high school. She expressed her fear that Barry \ncould be killed in Guinea if people learned of his sexual \norientation, recounting she had seen gay people chased \nthrough the streets in Guinea and “beaten up … because they \nwere gay.” Her testimony about the conditions homosexual \nindividuals encounter in Guinea is based on her experiences \nin Guinea approximately twenty years ago. \n Barry also submitted record evidence in support of his and \nhis mother’s testimonies. The most notable evidence included \nsummonses for his parents to appear, purportedly issued by \na Guinean court, and a U.S. State Department country report \ndescribing conditions in Guinea as politically violent and \nhostile toward homosexual individuals. The summonses are \ndated April 20, 1998 and April 7, 2016, and the country report \nwas produced in 2016. \n The immigration judge found Barry and his mother to be \ncredible witnesses, but denied Barry’s application for CAT \ndeferral because Barry failed to meet his burden of producing \nevidence that if removed to Guinea he more likely than not \nwould be tortured. Specifically, the immigration judge \ndetermined “the bulk of the evidence” about Barry being \n\fNo. 18‐2334 5\n\ntortured because of his bisexuality comes from Barry’s \nmother, who has not been to Guinea in approximately twenty \nyears. Although the country report does not contradict \nBarry’s mother’s testimony, it explains only generally that \nGuinea criminalizes same‐sex sexual conduct and describes \ngeneralized violence toward gay individuals rooted in \n“religious and cultural taboos.” As the judge noted, “there’s \nbeen [no known] prosecutions or reports of arrest” in Guinea \nunder the country’s laws prohibiting homosexual acts. The \njudge also determined the evidence about Barry being \ntortured because of his father’s past political aﬃliations \nlargely consists of decades‐old memories and events. Even \nassuming Barry and his mother accurately depicted the \nincident with the soldiers, the judge found no evidence that \nfuture incidents would occur. \n Barry timely appealed the immigration judge’s decision to \nthe Board of Immigration Appeals (“BIA”). On May 31, 2018, \nBIA dismissed the appeal and aﬃrmed the immigration \njudge’s removal order. Barry now petitions this court for \nreview. \n II. \n An applicant seeking deferral of removal under CAT bears \nthe burden of establishing it is “more likely than not that he \nor she would be tortured” in the proposed country of \nremoval. 8 C.F.R. §§ 1208.16(c)(2)–(3), 1208.17(a). This court \n“interpret[s] that standard liberally, requiring ‘a substantial \nrisk that a given alien will be tortured if removed from the \nUnited States.’” Bernard v. Sessions, 881 F.3d 1042, 1047 (7th \nCir. 2018) (quoting Rodriguez‐Molinero v. Lynch, 808 F.3d 1134, \n1136 (7th Cir. 2015)); see Perez v. Sessions, 889 F.3d 331, 334 (7th \nCir. 2018) (noting that this court applies the “more likely than \n\f6 No. 18‐2334 \n\nnot” standard under a “substantial risk” analysis). For \npurposes of CAT protection, there must be some showing that \nthe potential torture will be committed by the government of \nthe removal country, either directly or by acquiescence. \nBernard, 881 F.3d at 1047 (quoting Lopez v. Lynch, 810 F.3d 484, \n492 (7th Cir. 2016)); see also Lozano‐Zuniga v. Lynch, 832 F.3d \n822, 830 (7th Cir. 2016) (“An applicant for CAT protection \nmust demonstrate that the torture was inflicted by or at the \nbehest of, or with the consent or acquiescence of, a public \noﬃcial.”). \n When evaluating whether an applicant has met this \nburden, “the immigration judge must address various factors \nsuch as evidence of past torture, ability to relocate within the \ncountry, evidence of grave human rights violations or other \nrelevant country conditions.” Orellana‐Arias v. Sessions, 865 \nF.3d 476, 489 (7th Cir. 2017); see 8 C.F.R. § 1208.16(c)(3)(i)–(iv). \n“Evidence of generalized violence is not enough; the [immi‐\ngration judge] must conclude that there is a substantial risk \nthat the petitioner will be targeted specifically.” Bernard, 881 \nF.3d at 1047 (citing Lozano‐Zuniga, 832 F.3d at 830–31); Lopez, \n810 F.3d at 493. \n When, as here, BIA relies on the immigration judge’s \nfindings and adds its own analysis, this court reviews the \nimmigration judge’s decision as supplemented by BIA’s \nadditional reasoning. Bernard, 881 F.3d at 1046 (quoting \nJabateh v. Lynch, 845 F.3d 332, 337 (7th Cir. 2017)). The court \nreviews a “denial of CAT deferral under the highly deferential \nsubstantial evidence test and will reverse only if the record \nevidence compels a contrary conclusion.” Bernard, 881 F.3d at \n1047 (quoting Lopez, 810 F.3d at 492 (internal citations \nomitted)); see INS v. Elias‐Zacarias, 502 U.S. 478, 481 n. 1 (1992) \n\fNo. 18‐2334 7\n\n(“To reverse the BIA finding we must find that the evidence \nnot only supports that conclusion, but compels it … ”); Jabateh, \n845 F.3d at 337 (explaining that the court “may reverse the \n[immigration judge’s factual] determinations ‘only if we de‐\ntermine that the evidence compels a diﬀerent result’” (quoting \nAbraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011))). \n Here, the evidence does not compel the conclusion that \nBarry more likely than not will be tortured by or with the \nacquiescence of Guinean oﬃcials. At his immigration hearing, \nBarry relied primarily on three sources of evidence: (1) the \ntestimony of he and his mother about his bisexuality and \nconditions in Guinea twenty years ago, (2) summonses \npurportedly issued by a Guinean court for his parents’ \nappearances, and (3) a U.S. State Department country report \ndescribing conditions in Guinea as politically violent and \nhostile toward homosexual individuals. \n Certainly, the testimony before the immigration judge \nindicates Barry suﬀered great harm as a child at the hands of \nGuinean soldiers. Whether that harm rose to the level of \ntorture was, ultimately, not a factual determination the \nimmigration judge needed to make. After reviewing the \nentire record and finding Barry and his mother credible, the \nimmigration judge determined Barry’s fear of future torture \nwas “too speculative” and did not meet the “more likely than \nnot” standard. The immigration judge must consider poten‐\ntial past torture in the context of the entire record; past torture \nalone is not dispositive. 8 C.F.R. §1208.16(c). BIA reviewed the \nimmigration judge’s findings and agreed. The evidence does \nnot compel us to conclude diﬀerently. \n Barry and his mother left Guinea over twenty years ago. \nNeither have been back to the country since, and neither seem \n\f8 No. 18‐2334 \n\nto have maintained any familial or political ties to the country. \nBarry and his mother testified they are no longer in touch with \nBarry’s father, whose political activities gave rise to the abuse \nBarry and his mother suﬀered twenty years ago. As the \ncountry report explains, a diﬀerent political party controls \nGuinea today than the one that commissioned soldiers two \ndecades ago to find Barry’s father. \n To support his assertion that the Guinean government is \nstill looking for his father, Barry submitted Guinean court \nsummonses for his parents from 1998 and 2016. When the \nimmigration judge asked Barry about their origin, Barry \ncould not authenticate them, nor could he explain how he ob‐\ntained them or why they were issued. He did not argue at that \ntime that he lacked an opportunity to authenticate the docu‐\nments, nor did he object to the immigration judge aﬀording \nthem limited evidentiary weight. Indeed, it was consistent \nwith this court’s precedent for the immigration judge to do so. \nSee Raghunathan v. Holder, 604 F.3d 371, 380 (7th Cir. 2010) \n(giving little weight to an aﬃdavit by a respondent’s mother \nbecause it was unauthenticated and the respondent failed to \nexplain how he had obtained it). \n Even if Guinean oﬃcials are still looking for Barry’s father, \nit is speculation to assume they are looking for Barry or would \nconnect Barry to his father. Barry testified the Guinean \ngovernment would know he is his father’s son because they \nshare a surname. But he failed to lay a foundation for this \nassertion (for example, by providing evidence how common \nthe surname “Barry” is in Guinea). No record evidence \nsubstantiates Barry’s fear his father’s political aﬃliations will \nimperil him. \n\fNo. 18‐2334 9\n\n Barry also testified he would be tortured in Guinea \nbecause he is bisexual. His testimony describing present‐day \ntreatment of gay men in Guinea is based on a friend’s hearsay \ncomment from approximately thirteen or fourteen years ago. \nThe friend’s comment is uncorroborated, aside from Barry’s \nmother testifying she recalls gay individuals being beaten \nwhen she lived in Guinea approximately twenty years ago. \nSuch dated testimonial evidence fails to establish a substantial \nrisk of torture in Guinea today. See, e.g., Bernard, 881 F.3d at \n1046 (evidence that consists mostly of “decades‐old \nmemories” does not establish a CAT claim for relief). \n In addition to outdated, the friend’s comment indicates \nonly that Guinean civilians may mistreat gay men; it would \nnot show that the Guinean government tortures individuals \nbased on sexual orientation or systematically turns a blind eye \ntoward such mistreatment. See Silais v. Sessions, 855 F.3d 736, \n742 (7th Cir. 2017) (violence committed by private individuals \nmay constitute persecution only if the foreign government \nwas complicit in those acts or was unable or unwilling to take \nsteps to prevent them). While Guinean laws criminalize \nhomosexual activities, Barry did not know of a single \nindividual ever prosecuted for homosexuality in Guinea, and \nhe admitted the country report contains no evidence of any \nhomosexuality‐based prosecutions. \n The country report explains there are “[d]eep religious \nand cultural taboos against same‐sex sexual conduct” in \nGuinea and that same‐sex sexual activity is illegal. The report \ndoes not, however, describe any individual being tortured for \nengaging in homosexual activity. Further, the report contains \nonly generalized findings insuﬃcient to satisfy Barry’s \nburden of showing he is personally subject to a particularized \n\f10 No. 18‐2334 \n\nrisk of torture. See Lozano‐Zuniga, 832 F.3d at 830–31 \n(“[E]vidence about generalized violence or danger within a \ncountry is not suﬃcient to make a claim that it is more likely \nthan not that a petitioner would be tortured upon return to \nhis home country.”); see also Lenjinac v. Holder, 780 F.3d 852, \n856 (7th Cir. 2015) (“[R]eports that torture occurs in a foreign \ncountry … are insuﬃcient bases for relief without evidence \nthat the petitioner will be tortured if he returns.”); Rashiah v. \nAshcroft, 388 F.3d 1126, 1133 (7th Cir. 2004). \n III. \n Barry has failed to establish he more likely than not will \nbe tortured if removed to Guinea. The immigration judge \nassessed the record and denied Barry’s deferral application. \nBIA reviewed the immigration judge’s findings and aﬃrmed. \nThe evidence does not compel this court to conclude \notherwise. \n The petition for review is DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370584/", "author_raw": "BRENNAN, Circuit Judge"}]}	BAUER	BRENNAN	SCUDDER	1	{"BAUER": ", Circuit", "BRENNAN": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593331/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,896	El Hadj Hamidou BARRY v. William P. BARR, Attorney General of the United States	Barry v. Barr	2019-02-22	No. 18-2334	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Bauer, Brennan, Scudder", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415326/", "author_raw": ""}]}	BAUER	BRENNAN	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443896/	Published	0	1	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,908	Julio DE LIMA SILVA v. State of Wisconsin, DEPARTMENT OF CORRECTIONS	Silva v. State	2019-02-22	No. 18-2561	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Barrett, Flaum, Scudder", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415339/", "author_raw": ""}]}	BARRETT	FLAUM	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443908/	Published	0	1	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,932	Debara DECAMP, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee.	Debara DeCamp v. Nancy Berryhill	2019-02-26	18-2105	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, KANNE, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2105\nDEBARA DECAMP,\n Plaintiff-Appellant,\n v.\n\nNANCY A. BERRYHILL,\nActing Commissioner of Social Security,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 15-CV-1261 — William C. Griesbach, Chief Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019— DECIDED FEBRUARY 26, 2019\n ____________________\n\n Before WOOD, Chief Judge, KANNE, and ST. EVE, Circuit\nJudges.\n PER CURIAM. Debara DeCamp, a 55-year old woman, chal-\nlenges the denial of her applications for Disability Insurance\nBenefits and Supplemental Security Income, in which she\nclaimed disability based on a benign brain tumor, neck and\nback issues, and bipolar disorder. DeCamp argues that the ad-\nministrative law judge erred by failing to (1) evaluate\n\f2 No. 18-2105\n\nproperly DeCamp’s limits with concentration, persistence, or\npace, (2) support her decision to limit DeCamp to 10 percent\noﬀ-task time for purposes of assessing residual functional ca-\npacity (“RFC”), and (3) support her adverse credibility deter-\nmination. We agree that the ALJ did not properly address De-\nCamp’s limitations in concentration, persistence, or pace, and\non that basis we remand.\n I. BACKGROUND\n DeCamp has a history of depression, drug overdoses, and\nsuicidal thoughts. She overdosed on medication three times\nin October 2007. She admitted to doctors that she had at-\ntempted suicide and had been cutting her legs. Her treatment\nnotes also reflect a history of alcohol abuse.\n In 2010 DeCamp complained of headaches, and an MRI\nrevealed a tumor in her pineal gland, which secretes hor-\nmones that regulate sleep cycles. A neurosurgeon noted that\nthe mass was benign and directed DeCamp to follow up about\nher migraines with her primary-care doctor, Dr. Jane Walloch,\nand repeat the MRI in six months. DeCamp did so, and Dr.\nWalloch—noting an improvement in DeCamp’s headaches—\nincreased her dosage for Cymbalta (an antidepressant). De-\nCamp also told Dr. Walloch of her plans to travel, and the doc-\ntor told DeCamp to follow up upon her return.\n DeCamp returned to Dr. Walloch in 2011 and reported\nfeeling depressed. She no longer had health insurance, De-\nCamp said, so Cymbalta was too expensive. DeCamp told Dr.\nWalloch that her headaches had returned and that she was\n“cutting again” in connection with her depression. Dr. Wal-\nloch changed DeCamp’s medication and referred DeCamp to\npsychiatric counseling.\n\fNo. 18-2105 3\n\n In August 2011 Dr. Esther Lefevre, a psychologist, re-\nviewed DeCamp’s medical records and completed two ques-\ntionnaires—a Psychiatric Review Technique (“PRT”) Form\nand a Mental Residual Functional Capacity Assessment\n(“MRFC”). On the PRT form, Dr. Lefevre checked a box not-\ning that DeCamp had “moderate” limitations in maintaining\nconcentration, persistence, or pace. The doctor also desig-\nnated on the MRFC form that DeCamp was “moderately lim-\nited” in two more ways—her ability (1) “to perform activities\nwithin a schedule, maintain regular attendance, and be punc-\ntual within customary tolerances” and (2) “to complete a nor-\nmal workday and workweek without interruptions from psy-\nchologically based symptoms and to perform at a consistent\npace without an unreasonable number and length of rest pe-\nriods.” In a supplemental narrative explanation, Dr. Lefevre\nelaborated that DeCamp “may have some diﬃculty with con-\ncentration and persistence at times but she is able to meet the\ndemands of basic unskilled work.”\n DeCamp told Dr. Walloch in November 2011 that her\nheadaches were worse. She added that she was not harming\nherself and had no suicidal thoughts. Dr. Walloch changed\nDeCamp’s medication for her migraines and encouraged her\nto follow up with her primary care doctor for an MRI of her\nhead.\n Agency psychologist Michael Goldstein, Ph.D., examined\nDeCamp in March 2012 and prepared a report that described\nmental limitations similar to those found by Dr. Lefevre. Dr.\nGoldstein noted that DeCamp had “mild” limitations in un-\nderstanding, remembering, and carrying out simple instruc-\ntions, and “moderate” limitations in maintaining concentra-\ntion, attention, and work pace, and in adapting to change.\n\f4 No. 18-2105\n\nAnd DeCamp had “extreme” limitations in withstanding rou-\ntine work stresses and responding appropriately to co-work-\ners and supervisors.\n Dr. Deborah Pape, another state-agency doctor, opined\nthat DeCamp was more limited than Dr. Lefevre found. On a\nMRFC form, Dr. Pape specified that DeCamp was “markedly”\nlimited in her abilities “to understand and remember detailed\ninstructions” and “to carry out detailed instructions.” She also\nwas “moderately” limited in her ability to sustain concentra-\ntion and persistence. Dr. Pape made “no severe findings of\ndiﬀ[iculty] getting along [with] others, supervisors or\ncoworkers,” but she added that DeCamp was “capable of\nwithstanding the demands of unskilled as defined by SSA”\nwith moderate limitations.\n At a hearing in December 2012 before an ALJ, DeCamp de-\nscribed how pain in her back, leg, and hands limited her daily\nactivities. Her pain made it diﬃcult to stand, walk, sleep, or\ngrip things. She added that she cared for a dog and a bird and\nwas able to make simple meals, like soup or microwaved\nmeals. And she said that she was able to walk to her mailbox\nand back.\n At another hearing in 2015,1 DeCamp testified that she\nhad migraines four times a week that lasted all day. On a typ-\nical day, she would watch television, read, use social media,\nand lie down. Her medications also made her tired, so she\npreferred to sleep when she felt “super depressed.” But her\ndrug and alcohol problems were under control, she added.\n\n 1 The Commissioner had agreed to a new hearing after the ALJ issued\n\nan unfavorable decision without explaining how Dr. Pape’s opinion was\nused in crafting DeCamp’s mental RFC.\n\fNo. 18-2105 5\n\n The ALJ then questioned the vocational expert about jobs\na hypothetical claimant with similar limitations to DeCamp\ncould perform. The ALJ asked the vocational expert whether\njobs existed for a hypothetical claimant who, as relevant here,\nwas:\n limited to unskilled work involving [Specific Voca-\n tional Preparation (“SVP”)]: 2 or less; no fast paced\n production line or tandem tasks; few if any changes\n in the work setting, meaning that the work place and\n tasks change no more than occasionally and only\n one or two times per month at most; no more than\n occasional interaction with coworkers, supervisors,\n and the public; she may be oﬀ task or oﬀ pace up to\n 10 percent of the work day in addition to regular\n breaks.\n The vocational expert, who testified that she had reviewed\nan unspecified “E file”2 in preparation for the hearing, re-\nsponded that jobs existed for such a person. But if the hypo-\nthetical claimant might “be oﬀ pace or oﬀ task more than 15\npercent of the work day” or “need additional unscheduled\nbreaks,” then no competitive work would be available.\n The ALJ applied the required five-step analysis for as-\nsessing disability, see 20 C.F.R. §§ 404.1520(a)(4),\n416.920(a)(4), and concluded that DeCamp was not disabled.\nThe ALJ determined that DeCamp had not engaged in sub-\nstantial gainful employment since her alleged onset date in\nFebruary 2009 (step one); that her conditions (“history of\n\n 2 We asked the parties at oral argument to clarify what was in De-\nCamp’s “E file.” They agreed that the “E file” is a subset of the adminis-\ntrative record, namely, those files designated with the letter “E” at the end\nof the exhibit number.\n\f6 No. 18-2105\n\ncervical discectomy in 2003; right carpal tunnel release in\n2004; L5-S1 lumbar fusion in 2010; chronic back pain;\nlongstanding neoplasm of the pineal gland; headaches; his-\ntory of substance abuse; and aﬀective and anxiety disorders”)\nwere severe impairments (step two); that these conditions did\nnot equal a listed impairment (step three); that she had the\nresidual functional capacity to perform light work, except that\nshe was limited to “unskilled work … with no fast-paced pro-\nduction line or tandem tasks,” and she could “occasionally in-\nteract with coworkers, supervisors, and the public,” and she\n“may be oﬀ task up to 10 percent of the workday, in addition\nto normal breaks” (step four); and that she could work as a\nmachine tender, sorter, or oﬃce helper (step five).\n In determining that DeCamp’s conditions did not equal a\nlisted impairment at step three, the ALJ applied a so-called\n“special technique” to evaluate mental impairments.\nSee 20 C.F.R. §§ 404.1520a, 416.920a. That method requires an\nALJ to consider “pertinent symptoms, signs, and laboratory\nfindings” to determine whether a claimant suﬀers from a\nmedically determinable mental impairment.\nId. §§ 404.1520a(b), 416.920a(b). Although the ALJ determined\nthat DeCamp did not have a listed impairment, the ALJ con-\ncluded that DeCamp had “moderate” restrictions in social\nfunctioning and concentration, persistence, or pace, and\n“mild” limitations in her activities of daily living.\n In determining DeCamp’s RFC, the ALJ gave some weight\nto the mental limitations identified by Drs. Lefevre, Pape, and\nGoldstein. Those doctors’ opinions supported “moderate” re-\nstrictions in concentration, persistence, or pace, and “mild”\nrestrictions in understanding, remembering, and carrying out\nsimple instructions. The ALJ therefore limited DeCamp to\n\fNo. 18-2105 7\n\n“unskilled work with an SVP of 2 or less, with no fast-paced\nproduction line or tandem tasks, at a job that allows her to be\noﬀ task up to 10% of the workday.” The ALJ also referred to\nthe opinions of Dr. Lefevre and Dr. Pape, who regarded De-\nCamp’s limitations not to be disabling.\n The ALJ found that DeCamp’s account of her symptoms\nwas “not entirely credible” for four reasons. First, DeCamp\nhad decided to take a vacation after her alleged onset date.\nThe ALJ recognized that “a vacation and a disability are not\nnecessarily mutually exclusive,” but DeCamp’s willingness to\ntravel suggested that she had overstated her symptoms. Next,\nDeCamp regularly walked her dog, an activity that conflicted\nwith her reports of disabling leg pain. Third, DeCamp’s ap-\npearance at her mental-status evaluations and hearings, as\ndocumented by the examining doctors, suggested that she\nwas not as disabled as she alleged. Last, DeCamp’s medical\nrecords did not reflect that she had complained of pain or\nother disabling symptoms from her conditions.\n DeCamp sought judicial review, but a district judge up-\nheld the ALJ’s decision. The judge explained that the ALJ’s\ncredibility assessment was sound because “the ALJ thor-\noughly discussed the substantial evidence that supports her\ndecision.” Moreover, the ALJ properly oriented the vocational\nexpert through hypothetical questions that adopted the doc-\ntors’ narrative explanations of DeCamp’s mental limitations.\nAnd DeCamp’s challenge to the ALJ’s determination that De-\nCamp would be oﬀ-task up to 10 percent of the work day\nfailed, the judge added, because her “argument assumes a\nprecision that this kind of limitation does not allow.” Rather,\nthe ALJ’s finding permissibly was “based on her judgment as\n\f8 No. 18-2105\n\nto the severity of Plaintiﬀ’s impairments, not a mathematical\nmeasurement.”\n II. ANALYSIS\n DeCamp first argues that the ALJ’s RFC determination\nand hypothetical question did not include all her limitations\nin concentration, persistence, and pace, and so the vocational\nexpert could not evaluate whether jobs existed for a claimant\nwith her limitations. Rather, DeCamp contends, the ALJ in-\ncluded limitations in the hypothetical question that did not\naccurately describe her abilities. The ALJ must explicitly ac-\ncount for all a claimant’s limitations in her hypothetical, in-\ncluding limitations in concentration, persistence, or pace, un-\nless the vocational expert has independently reviewed the\nmedical record. See Moreno v. Berryhill, 882 F.3d 722, 730 (7th\nCir. 2018); Lanigan v. Berryhill, 865 F.3d 558, 563, 565 (7th Cir.\n2017).\n We agree that the ALJ erred by not including DeCamp’s\n“moderate” limitations in concentration, persistence, and\npace in the hypothetical question to the vocational expert. The\nALJ’s hypothetical to the vocational expert omitted any men-\ntion of DeCamp’s moderate limitations in the four areas iden-\ntified by Dr. Pape (whose opinion the ALJ cited to support her\nfinding): maintaining attention and concentration for ex-\ntended periods; performing activities within a schedule,\nmaintaining regular attendance, and being punctual within\ncustomary tolerances; working in coordination or proximity\nto others without being distracted; and completing a normal\nworkday and workweek without interruptions from psycho-\nlogically based symptoms and performing at a consistent\npace. The ALJ opted instead to limit DeCamp to “unskilled\nwork” with no “fast-paced production line or tandem tasks.”\n\fNo. 18-2105 9\n\nWe have previously rejected similar formulations of a claim-\nant’s limitations because there is no basis to suggest that elim-\ninating jobs with strict production quotas or a fast pace may\nserve as a proxy for including a moderate limitation on con-\ncentration, persistence, and pace. See Moreno, 882 F.3d at 730;\nO’Connor-Spinner v. Colvin, 832 F.3d 690, 698 (7th Cir. 2016).\nThe ALJ’s analysis is similarly flawed with respect to De-\nCamp’s mild limitations in understanding, remembering, and\ncarrying out simple instructions and her moderate limitations\nin concentration, persistence, and pace as found by Dr. Gold-\nstein. An ALJ need not use “specific terminology,” but we\nhave “repeatedly rejected the notion that a hypothetical …\nconfining the claimant to simple, routine tasks and limited in-\nteractions with others adequately captures temperamental\ndeficiencies and limitations in concentration, persistence, and\npace.” Yurt v. Colvin, 758 F.3d 850, 858–59 (7th Cir. 2014); see\nalso Winsted v. Berryhill, No. 18-2228, 2019 WL 494052, at *4\n(7th Cir. Feb. 8, 2019); Varga v. Colvin, 794 F.3d 809, 814 (7th\nCir. 2015). Moreover, the vocational expert did not review De-\nCamp’s medical records, which could have excused the ALJ\nfrom stating all DeCamp’s limitations. See Varga, 794 F.3d at\n814; Yurt, 758 F.3d at 857.\n The Commissioner contends that the ALJ adequately ac-\ncounted for DeCamp’s limitations in her RFC determination\nand in the hypothetical question to the vocational expert by\nrelying on part of the narrative explanations (the part of the\nPRT and MRFC forms where the doctors provide a written\nexplanation of their findings, rather than the check-box sec-\ntions) oﬀered by Dr. Pape and Dr. Goldstein. True, both doc-\ntors oﬀered narrative explanations in addition to the check-\nboxes on the assessment forms, and an ALJ may rely on those\ndescriptions. See Varga, 794 F.3d at 816. But even if an ALJ may\n\f10 No. 18-2105\n\nrely on a narrative explanation, the ALJ still must adequately\naccount for limitations identified elsewhere in the record, in-\ncluding specific questions raised in check-box sections of\nstandardized forms such as the PRT and MRFC forms. See\nYurt, 758 F.3d at 859. In Yurt, a narrative explanation trans-\nlated the limitations identified by doctors in the check-box\nsections of the forms. See id. at 854–55. We still reversed and\nremanded because the ALJ did not adequately account for the\nlimitations identified by the doctor in the check-box section of\nthe forms. See id. at 859. Here, the ALJ similarly focused her\nanalysis on the doctors’ bottom-line conclusion that DeCamp\nwas not precluded from working without giving the voca-\ntional expert any basis to evaluate all DeCamp’s impairments,\nincluding those in concentration, persistence, and pace.\n III. CONCLUSION\n Because we determine that the ALJ did not properly eval-\nuate DeCamp’s limitations in concentration, persistence, and\npace, we do not address DeCamp’s other arguments. Accord-\ningly, we VACATE the judgment and remand this case to the\ndistrict court with directions to remand the case to the Social\nSecurity Administration.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371185/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593932/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,933	In the MATTER OF: Carol S. ANDERSON and Mark R. Anderson, Debtors. Appeal Of: BMO Harris Bank, N.A.	BMO Harris Bank N.A. v. Carol Anderson	2019-02-26	17-3073	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Easterbrook, Kanne, Brennan", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 17-3073\nIN THE MATTER OF:\n CAROL S. ANDERSON AND MARK R. ANDERSON,\n Debtors.\nAPPEAL OF:\n BMO HARRIS BANK, N.A.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16 C 4748 — Jorge L. Alonso, Judge.\n ____________________\n\n ARGUED SEPTEMBER 17, 2018 — DECIDED FEBRUARY 26, 2019\n ____________________\n\n Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judg-\nes.\n EASTERBROOK, Circuit Judge. Mark Anderson and Walter\nKaiser jointly borrowed about $700,000 from BMO Harris\nBank; the loan was secured by a mortgage. They did not pay,\nand the Bank ﬁled a foreclosure action in state court. That\naction was put on hold when Anderson and his wife (who\nneed not be mentioned again) commenced a bankruptcy\nproceeding. After the Bank asked Bankruptcy Judge Cox to\n\f2 No. 17-3073\n\nlift the automatic stay under 11 U.S.C. §362 she entered an\norder granting “full and complete relief from the Automatic\nStay of Section 362 to permit BMO HARRIS BANK to pro-\nceed with the pending State Court foreclosure litigation with\nrespect to the property commonly known as 151 W. Wing\nSt., Unit 905, Arlington Heights, Illinois 60005 as more par-\nticularly described in the Motion for Relief.”\n Back in state court the Bank asked the judge to put the\nproperty up for auction. That was done, and the sale was\nconﬁrmed. After the sale the Bank asked for a deﬁciency\njudgment against Kaiser but not against Anderson. (Earlier\nthe Bank had requested a deﬁciency judgment against both\nborrowers, but it did not repeat this after the sale.) The state\njudge awarded the Bank about $650,000 in personam against\nKaiser, but with respect to Anderson the judgment was in\nrem only (that is, without recourse against Anderson). The\nBank did not appeal the omission of a deﬁciency judgment\nagainst Anderson.\n The state litigation ended in April 2015, but the federal\nlitigation continues. The Bank made a claim against Ander-\nson for the same $650,000 shortfall that the state judge had\nawarded against Kaiser. (Anderson and Kaiser are jointly\nand severally liable on the loan.) Anderson asked Judge Cox\nto hold that the state court’s judgment extinguished the\nBank’s claim through the doctrine of claim preclusion: the\nBank could have received a deﬁciency judgment against An-\nderson but did not, and Illinois does not allow single claims\nto be split into multiple suits or litigated in multiple forums.\nJudge Cox denied this motion, and Anderson took an inter-\nlocutory appeal under 28 U.S.C. §158(a)(3). The district court\nreversed, holding that the absence of a deﬁciency judgment\n\fNo. 17-3073 3\n\nagainst Anderson in the state case blocks any further pro-\nceedings against him related to this loan. 2017 U.S. Dist.\nLEXIS 142599 (N.D. Ill. Sept. 5, 2017).\n The Bank immediately appealed to us. Unlike the district\ncourt, which can accept interlocutory appeals under\n§158(a)(3), our jurisdiction is limited to ﬁnal decisions. 28\nU.S.C. §158(d)(1). (There are exceptions for appeals direct\nfrom bankruptcy courts to the courts of appeals, see\n§158(d)(2), but none applies.) We directed the parties to ﬁle\nsupplemental memoranda discussing appellate jurisdiction,\nparticularly because the Bank’s claim arose as a contested\nmaker in the main proceeding rather than as an adversary\naction, the usual source of appellate business when the main\nproceeding continues in the bankruptcy court. The memo-\nranda have been received, and we can proceed to decision.\n Many opinions in this circuit conclude that a district\ncourt’s decision is “ﬁnal” under §158(d)(1) when it conclu-\nsively resolves the sort of dispute that would be a stand-\nalone case outside of bankruptcy. See, e.g., Schaumburg Bank\n& Trust Co. v. Alsterda, 815 F.3d 306, 312–13 (7th Cir. 2016); In\nre Wade, 991 F.2d 402, 406 (7th Cir. 1993). Bullard v. Blue Hills\nBank, 135 S. Ct. 1686, 1692 (2015), implies approval of these\ndecisions. A claim to foreclose a mortgage and collect a deﬁ-\nciency judgment on the note is a common stand-alone dis-\npute outside of bankruptcy, so it is covered by this principle.\nAnd we do not see any reason why it should maker whether\na dispute that could have been a stand-alone suit outside\nbankruptcy has been resolved in an adversary proceeding or\na contested maker. This circuit has several times accepted\nappeals from ﬁnal decisions in contested makers. See, e.g., In\nre UAL Corp., 408 F.3d 847, 850 (7th Cir. 2005). Although\n\f4 No. 17-3073\n\nthese might be disparaged as drive-by jurisdictional rulings,\nsee Steel Co. v. Citizens for BeFer Environment, 523 U.S. 83, 91\n(1998), we lack a good reason to depart from them given the\nabsence of any such distinction in the statutory text.\n One potential jurisdictional problem remains, however.\nSome of our decisions say that an appeal under §158(d)(1) is\npossible “only if the bankruptcy court’s original order and\nthe district court’s order reviewing the bankruptcy court’s\noriginal order are both ﬁnal.” In re Rimsat, Ltd., 212 F.3d\n1039, 1044 (7th Cir. 2000). See also, e.g., In re Salem, 465 F.3d\n767, 771 (7th Cir. 2006); Zedan v. Habash, 529 F.3d 398, 402\n(7th Cir. 2008); Schaumburg Bank, 815 F.3d at 312. Although\nthe district court’s order is ﬁnal, the bankruptcy court’s or-\nder was not: Judge Cox denied a motion to dismiss the claim\nbut left open questions such as whether the Bank is entitled\nto a deﬁciency judgment and, if so, how much. If we take lit-\nerally the language in Rimsat and other opinions, we must\ndismiss this appeal.\n We do not think, however, that Rimsat and similar cases\nforeclose appeals of all disputes in which the district court’s\njurisdiction rests on §158(a)(3). All of the decisions cited in\nthe preceding paragraph—and there are more, cited in turn\nin those opinions—arise from appeals taken under 28 U.S.C.\n§158(d)(1), which provides: “The courts of appeals shall have\njurisdiction of appeals from all ﬁnal decisions, judgments,\norders, and decrees entered under subsections (a) and (b) of\nthis section.” Subsection (a), the only one relevant here, deals\nwith proceedings in the district court, not the bankruptcy\ncourt. The statute thus asks whether the district court’s deci-\nsion is ﬁnal, not whether the bankruptcy court’s was. We\ncould not adhere to the position that an interlocutory bank-\n\fNo. 17-3073 5\n\nruptcy-court decision, followed by a ﬁnal district-court deci-\nsion, is not appealable, without contradicting the statute.\n As far as we can see, none of the opinions in which this\nlanguage appears stems from the sequence we have: an in-\nterlocutory decision by the bankruptcy judge, followed by a\nﬁnal decision in the district court. (Final because, after the\ndistrict court’s decision, there is no more work for the bank-\nruptcy judge to do.) In Rimsat, Salem, and Zedan both deci-\nsions were ﬁnal (so appeal was not problematic); in Schaum-\nburg Bank both decisions were interlocutory, so the absence\nof appellate jurisdiction also was straightforward. The “both\ndecisions must be ﬁnal” language makers only when one\ncourt has rendered a ﬁnal decision and the other has not.\n For example, suppose that the order of decision in this\ncase had been reversed: Judge Cox found the Bank’s claim\nprecluded, and the district court disagreed, directing the\nbankruptcy court to determine how much (if anything) An-\nderson owed to the Bank. In that sequence an appeal to this\ncourt would not have been authorized—not because one de-\ncision was ﬁnal and the other not, but because the district\ncourt’s decision, in particular, would not have been ﬁnal. See,\ne.g., In re Rockford Products Corp., 741 F.3d 730, 733 (7th Cir.\n2013); In re Gordon, 743 F.3d 720, 723 (10th Cir. 2014).\n But when an interlocutory decision by a bankruptcy\njudge is reversed by a ruling that leaves no more work for\neither the bankruptcy court or the district court, the decision\nis canonically ﬁnal, making an appeal under §158(d)(1)\nproper. That’s our situation.\n To put this diﬀerently, if the district court’s order leaves\nmore work to be done (other than a ministerial action) in ei-\n\f6 No. 17-3073\n\nther the bankruptcy court or the district court, the district\ncourt’s order is itself not ﬁnal. An immediate appeal could\nnot conclusively resolve the case, because the loose ends still\nto be tied up (in the bankruptcy court or the district court)\ncould generate another appeal, violating the policy against\npiecemeal appeals. Here, by contrast, the district court’s de-\ncision leaves nothing more to be done there or in the bank-\nruptcy court: the Bank’s claim against Anderson is done (un-\nless we reverse).\n A table may help to visualize the four possibilities:\n\n Bankruptcy court Bankruptcy court\n decision ﬁnal decision interloc-\n utory\n\nDistrict court de- Appealable (e.g., Appealable (this\n cision ﬁnal Rimsat) case)\n\nDistrict court de- Not appealable Not appealable\n cision interloc- (e.g., Rockford (e.g., Schaumburg\n utory Products) Bank)\n\nOur conclusion is consistent with the holding of every case\nwe could ﬁnd. But because we disapprove language that has\nbeen repeated in many of the circuit’s decisions, we have cir-\nculated this opinion to all judges in active service. See Cir-\ncuit Rule 40(e). None favored a hearing en banc.\n On to the merits. The parties begin their presentation by\nasking whether Judge Cox’s order authorized the state court\nto enter a judgment against Anderson in personam. They dis-\ncuss the state’s law of preclusion only as a secondary con-\nsideration. This is backward. The eﬀect of a state court’s de-\n\fNo. 17-3073 7\n\ncision depends on state law. Judgments of state courts “shall\nhave the same full faith and credit in every court within the\nUnited States and its Territories and Possessions as they\nhave by law or usage in the courts of such State, Territory or\nPossession from which they are taken.” 28 U.S.C. §1738. So\nwe must ask whether the Bank could seek further relief from\nAnderson by a new suit in the courts of Illinois. Only if the\nanswer is no must we inquire whether something about the\nautomatic stay or Judge Cox’s order supersedes §1738.\n Illinois requires litigants to present in a single proceeding\nall of their theories arising from one transaction. In other\nwords, it disallows claim spliking. See, e.g., GE Frankona Re-\ninsurance Co. v. Legion Indemnity Co., 373 Ill. App. 3d 969\n(2007). A recent decision applies this understanding to real-\nestate foreclosure and holds that creditors who do not ask\nfor deﬁciency judgments in the foreclosure actions cannot\nseek that relief later, in a diﬀerent proceeding. See LSREF2\nNova Investments III, LLC v. Coleman, 2015 IL App (1st)\n140184. The Bank observes that some earlier decisions take\nthe mortgage and note to be separate transactions, despite\ntheir close relation, and permiked each to be sued on sepa-\nrately. See, e.g., Turczak v. First American Bank, 2013 IL App\n(1st) 121964; LP XXVI, LLC v. Goldstein, 349 Ill. App. 3d 237\n(2004).\n We need not try to anticipate how the Supreme Court of\nIllinois would reconcile this apparent conﬂict, because all of\nthe state’s authorities agree that, if a litigant presents both\nthe mortgage and the note in a single action, and fails to seek\na deﬁciency judgment on the note, it cannot do so in a sepa-\nrate suit. That’s what happened here. The Bank ﬁled a two-\ncount complaint seeking relief under both the mortgage\n\f8 No. 17-3073\n\n(count one) and the note (count two). Once the property had\nbeen sold, however, it did not pursue a deﬁciency judgment\nagainst Anderson. We could not ﬁnd any state decision that\npermits a lender to do this and still try to get a deﬁciency\njudgment on the note in some separate proceeding. And if\nthe Bank cannot get such a judgment in state court, then un-\nder §1738 it cannot get one in federal court either.\n To this the Bank responds that the state court’s decision\nis not ﬁnal—after all, it leaves dangling the complaint’s re-\nquest for a deﬁciency judgment against Anderson. If the\njudgment is not ﬁnal, it lacks preclusive eﬀect. But the state\njudge did not reserve any question for future decision. When\ngranting summary judgment to the Bank, the judge stated\nthat she was entering judgment “under Counts I and II of the\nSecond Amended Complaint” (that is, both the court seeking\na deﬁciency judgment and the one seeking foreclosure). She\nalso stated that the maker remained pending, but just for the\npurposes of enforcing the decision and conﬁrming the sale.\nIllinois treats a foreclosure action as ﬁnally decided once the\n“court enters an order approving the sale and directing the\ndistribution.” EMC Mortgage Corp. v. Kemp, 2012 IL 113419\n¶11. The trial court entered such an order in April 2015, and\nin almost four years since there has not been any hint from\nthe judge that she considers the job unﬁnished—nor has the\nBank asked the judge to do anything further. We conclude\nthat the decision is ﬁnal.\n The Bank tells us that the state judiciary might permit it\nto reopen the proceeding to seek a deﬁciency judgment\nagainst Anderson. Maybe so, but the Bank has not asked. We\nmust apply §1738 to the decision on the books.\n\fNo. 17-3073 9\n\n The Bank insists, however, that claim preclusion is irrele-\nvant because §362, the automatic stay in bankruptcy, de-\nprived the state court of “jurisdiction” to make any decision\nat all, except to the extent allowed by the bankruptcy\njudge—and the Bank believes that a state court’s judgment\ncannot aﬀect any maker over which it lacks jurisdiction. This\nline of argument is doubly wrong.\n First, §362(a) does not concern jurisdiction. It provides\nthat the ﬁling of a bankruptcy action “operates as a stay” of\ncertain makers. It does not establish exclusive federal juris-\ndiction over any of those makers. One of the things the state\ncourt had jurisdiction to decide was the meaning of the\nbankruptcy court’s order lifting the automatic stay. If the\nBank had asked for a judgment in personam against Ander-\nson, he might have replied (contrary to the position he takes\nin this court) that Judge Cox’s order did not allow this. If the\nstate court agreed with that view, it might have held the case\nopen to allow deﬁciency-judgment proceedings after the\nbankruptcy ended. But the Bank did not ask, and the state\ncourt never had to decide what eﬀect to give to either the au-\ntomatic stay or Judge Cox’s order. Having bypassed this\nmaker in state court, the Bank is not well situated to ask us\nto decide what the state court might have done, had it been\nasked. The one thing it would not have done is declare that it\nlacked jurisdiction.\n Second, even federal statutes that do provide for exclu-\nsive jurisdiction, such as the antitrust laws, do not supersede\n§1738. That’s the holding of Marrese v. American Academy of\nOrthopaedic Surgeons, 470 U.S. 373 (1985). Marrese sued in\nIllinois under a state-law theory. After losing, he ﬁled an an-\ntitrust suit, in federal court, concerning the same transac-\n\f10 No. 17-3073\n\ntions. The Supreme Court held that §1738 and state-law rules\nof preclusion govern the defense of preclusion in the federal\nsuit even though federal courts have exclusive jurisdiction of\nfederal antitrust claims. That’s equally true of claims pend-\ning in bankruptcy, even if we were to akach the “jurisdic-\ntional” label to the automatic stay.\n Marrese considered but rejected the possibility that the\nantitrust laws could be deemed to supersede §1738 by estab-\nlishing exclusive federal jurisdiction. 470 U.S. at 380–81. See\nalso Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982)\n(federal civil-rights laws do not modify §1738). Section 362 of\nthe Bankruptcy Code, which does not address §1738, should\nbe treated the same for this purpose as federal antitrust and\ncivil-rights laws.\n Marrese mentioned that state law might itself carve out\nmakers over which state courts lack jurisdiction. See 470 U.S.\nat 373, citing Restatement (Second) of Judgments §26(1)(c)\n(1982). That possibility need not detain us. The Bank could\nhave asked the state court to determine for itself how far\nJudge Cox’s order lifted the stay. If Anderson took in the\nstate court the same view he takes here—that Judge Cox’s\norder lifted the stay in full and allowed the state tribunal to\nexercise plenary power over the Bank’s claims—the whole\ndispute would have been wrapped up then and there. The\nstate court was not powerless.\n For the reasons we have given, it is unnecessary to de-\ntermine the meaning of Judge Cox’s order. Anderson em-\nphasizes the words “full and complete relief,” while the\nBank asserts that the reference to the property securing the\nloan implies that the stay had been lifted with respect to the\nmortgage and not the note. The Bank wants us to construe\n\fNo. 17-3073 11\n\norders lifting or modifying the automatic stay “strictly”\nagainst creditors (though it is hard to see why banks would\nthink that such a rule favors them). A few courts have issued\nopinions articulating a strict-construction norm. We need not\ndecide but are skeptical. Why create a presumption against\npermiking a state court to decide issues of state law?\n One set of problems in bankruptcy law comes from the\nfact that bankruptcy judges lack the salary and tenure pro-\ntections of Article III, which means that they cannot exercise\nthe same powers as district judges over disputes arising un-\nder state law. See Stern v. Marshall, 564 U.S. 462 (2011);\nNorthern Pipeline Construction Co. v. Marathon Pipe Line Co.,\n458 U.S. 50 (1982). Bankruptcy judges may transfer authority\nover state-law claims (or whole cases) to district judges, and\nthey may relinquish authority in favor of state courts. 28\nU.S.C. §1334. Having ﬁled a claim in Anderson’s bankrupt-\ncy, the Bank could not complain about the bankruptcy\njudge’s limited tenure-and-salary protections. But a bank-\nruptcy judge remains free to think that some claims can be\nresolved more quickly, or more appropriately, by the state\ncourts. Judge Cox made that decision at least about the\nBank’s akempt to foreclose on the mortgage. Having made\nthat decision, it would be odd to want to duplicate the pro-\nceedings, even in part, by reserving the deﬁciency judgment\nto herself. Why interpret the order to produce two proceed-\nings when one suﬃces?\n Allowing the state judiciary to enter a deﬁciency judg-\nment in a foreclosure proceeding does not undermine any\nfunction of bankruptcy law. If the state judge had held that\nKaiser and Anderson are jointly and severally liable for the\n$650,000 deﬁciency, the Bank’s claim still would have re-\n\f12 No. 17-3073\n\nturned to the bankruptcy court for it to resolve any disputes\nabout the priority of competing claims against Anderson’s\nassets and whether any particular debt should be dis-\ncharged. Trying to get around the application of §1738 or\nreading Judge Cox’s order narrowly to compel the sort of\nclaim spliking forbidden by state law would not serve any\ngoal of federal bankruptcy policy. It would simply prolong\nlitigation. (Indeed, on the Bank’s current understanding the\nstate court could and perhaps should have left the foreclo-\nsure proceeding in stasis until it had indubitable authority to\nresolve the whole case. That would not have served either\nthe Bank’s interests or Anderson’s.)\n The Bank had its chance in state court and did not use it.\nIt is too late to hold Anderson liable for a deﬁciency judg-\nment. The Bank must be content with what it can collect\nfrom Kaiser.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371186/", "author_raw": "Frank Hoover Easterbrook"}]}	EASTERBROOK	KANNE	BRENNAN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593933/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,044		Debara DeCamp v. Nancy Berryhill	2019-02-26	18-2105	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, KANNE, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2105\nDEBARA DECAMP,\n Plaintiff-Appellant,\n v.\n\nNANCY A. BERRYHILL,\nActing Commissioner of Social Security,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 15-CV-1261 — William C. Griesbach, Chief Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 26, 2019\n ____________________\n\n Before WOOD, Chief Judge, KANNE, and ST. EVE, Circuit\nJudges.\n PER CURIAM. Debara DeCamp, a 55-year old woman, chal-\nlenges the denial of her applications for Disability Insurance\nBenefits and Supplemental Security Income, in which she\nclaimed disability based on a benign brain tumor, neck and\nback issues, and bipolar disorder. DeCamp argues that the ad-\nministrative law judge erred by failing to (1) evaluate\n\f2 No. 18-2105\n\nproperly DeCamp’s limits with concentration, persistence, or\npace, (2) support her decision to limit DeCamp to 10 percent\noﬀ-task time for purposes of assessing residual functional ca-\npacity (“RFC”), and (3) support her adverse credibility deter-\nmination. We agree that the ALJ did not properly address De-\nCamp’s limitations in concentration, persistence, or pace, and\non that basis we remand.\n I. BACKGROUND\n DeCamp has a history of depression, drug overdoses, and\nsuicidal thoughts. She overdosed on medication three times\nin October 2007. She admitted to doctors that she had at-\ntempted suicide and had been cutting her legs. Her treatment\nnotes also reflect a history of alcohol abuse.\n In 2010 DeCamp complained of headaches, and an MRI\nrevealed a tumor in her pineal gland, which secretes hor-\nmones that regulate sleep cycles. A neurosurgeon noted that\nthe mass was benign and directed DeCamp to follow up about\nher migraines with her primary-care doctor, Dr. Jane Walloch,\nand repeat the MRI in six months. DeCamp did so, and Dr.\nWalloch—noting an improvement in DeCamp’s headaches—\nincreased her dosage for Cymbalta (an antidepressant). De-\nCamp also told Dr. Walloch of her plans to travel, and the doc-\ntor told DeCamp to follow up upon her return.\n DeCamp returned to Dr. Walloch in 2011 and reported\nfeeling depressed. She no longer had health insurance, De-\nCamp said, so Cymbalta was too expensive. DeCamp told Dr.\nWalloch that her headaches had returned and that she was\n“cutting again” in connection with her depression. Dr. Wal-\nloch changed DeCamp’s medication and referred DeCamp to\npsychiatric counseling.\n\fNo. 18-2105 3\n\n In August 2011 Dr. Esther Lefevre, a psychologist, re-\nviewed DeCamp’s medical records and completed two ques-\ntionnaires—a Psychiatric Review Technique (“PRT”) Form\nand a Mental Residual Functional Capacity Assessment\n(“MRFC”). On the PRT form, Dr. Lefevre checked a box not-\ning that DeCamp had “moderate” limitations in maintaining\nconcentration, persistence, or pace. The doctor also desig-\nnated on the MRFC form that DeCamp was “moderately lim-\nited” in two more ways—her ability (1) “to perform activities\nwithin a schedule, maintain regular attendance, and be punc-\ntual within customary tolerances” and (2) “to complete a nor-\nmal workday and workweek without interruptions from psy-\nchologically based symptoms and to perform at a consistent\npace without an unreasonable number and length of rest pe-\nriods.” In a supplemental narrative explanation, Dr. Lefevre\nelaborated that DeCamp “may have some diﬃculty with con-\ncentration and persistence at times but she is able to meet the\ndemands of basic unskilled work.”\n DeCamp told Dr. Walloch in November 2011 that her\nheadaches were worse. She added that she was not harming\nherself and had no suicidal thoughts. Dr. Walloch changed\nDeCamp’s medication for her migraines and encouraged her\nto follow up with her primary care doctor for an MRI of her\nhead.\n Agency psychologist Michael Goldstein, Ph.D., examined\nDeCamp in March 2012 and prepared a report that described\nmental limitations similar to those found by Dr. Lefevre. Dr.\nGoldstein noted that DeCamp had “mild” limitations in un-\nderstanding, remembering, and carrying out simple instruc-\ntions, and “moderate” limitations in maintaining concentra-\ntion, attention, and work pace, and in adapting to change.\n\f4 No. 18-2105\n\nAnd DeCamp had “extreme” limitations in withstanding rou-\ntine work stresses and responding appropriately to co-work-\ners and supervisors.\n Dr. Deborah Pape, another state-agency doctor, opined\nthat DeCamp was more limited than Dr. Lefevre found. On a\nMRFC form, Dr. Pape specified that DeCamp was “markedly”\nlimited in her abilities “to understand and remember detailed\ninstructions” and “to carry out detailed instructions.” She also\nwas “moderately” limited in her ability to sustain concentra-\ntion and persistence. Dr. Pape made “no severe findings of\ndiﬀ[iculty] getting along [with] others, supervisors or\ncoworkers,” but she added that DeCamp was “capable of\nwithstanding the demands of unskilled as defined by SSA”\nwith moderate limitations.\n At a hearing in December 2012 before an ALJ, DeCamp de-\nscribed how pain in her back, leg, and hands limited her daily\nactivities. Her pain made it diﬃcult to stand, walk, sleep, or\ngrip things. She added that she cared for a dog and a bird and\nwas able to make simple meals, like soup or microwaved\nmeals. And she said that she was able to walk to her mailbox\nand back.\n At another hearing in 2015,1 DeCamp testified that she\nhad migraines four times a week that lasted all day. On a typ-\nical day, she would watch television, read, use social media,\nand lie down. Her medications also made her tired, so she\npreferred to sleep when she felt “super depressed.” But her\ndrug and alcohol problems were under control, she added.\n\n 1 The Commissioner had agreed to a new hearing after the ALJ issued\n\nan unfavorable decision without explaining how Dr. Pape’s opinion was\nused in crafting DeCamp’s mental RFC.\n\fNo. 18-2105 5\n\n The ALJ then questioned the vocational expert about jobs\na hypothetical claimant with similar limitations to DeCamp\ncould perform. The ALJ asked the vocational expert whether\njobs existed for a hypothetical claimant who, as relevant here,\nwas:\n limited to unskilled work involving [Specific Voca-\n tional Preparation (“SVP”)]: 2 or less; no fast paced\n production line or tandem tasks; few if any changes\n in the work setting, meaning that the work place and\n tasks change no more than occasionally and only\n one or two times per month at most; no more than\n occasional interaction with coworkers, supervisors,\n and the public; she may be oﬀ task or oﬀ pace up to\n 10 percent of the work day in addition to regular\n breaks.\n The vocational expert, who testified that she had reviewed\nan unspecified “E file”2 in preparation for the hearing, re-\nsponded that jobs existed for such a person. But if the hypo-\nthetical claimant might “be oﬀ pace or oﬀ task more than 15\npercent of the work day” or “need additional unscheduled\nbreaks,” then no competitive work would be available.\n The ALJ applied the required five-step analysis for as-\nsessing disability, see 20 C.F.R. §§ 404.1520(a)(4),\n416.920(a)(4), and concluded that DeCamp was not disabled.\nThe ALJ determined that DeCamp had not engaged in sub-\nstantial gainful employment since her alleged onset date in\nFebruary 2009 (step one); that her conditions (“history of\n\n 2 We asked the parties at oral argument to clarify what was in De-\nCamp’s “E file.” They agreed that the “E file” is a subset of the adminis-\ntrative record, namely, those files designated with the letter “E” at the end\nof the exhibit number.\n\f6 No. 18-2105\n\ncervical discectomy in 2003; right carpal tunnel release in\n2004; L5-S1 lumbar fusion in 2010; chronic back pain;\nlongstanding neoplasm of the pineal gland; headaches; his-\ntory of substance abuse; and aﬀective and anxiety disorders”)\nwere severe impairments (step two); that these conditions did\nnot equal a listed impairment (step three); that she had the\nresidual functional capacity to perform light work, except that\nshe was limited to “unskilled work … with no fast-paced pro-\nduction line or tandem tasks,” and she could “occasionally in-\nteract with coworkers, supervisors, and the public,” and she\n“may be oﬀ task up to 10 percent of the workday, in addition\nto normal breaks” (step four); and that she could work as a\nmachine tender, sorter, or oﬃce helper (step five).\n In determining that DeCamp’s conditions did not equal a\nlisted impairment at step three, the ALJ applied a so-called\n“special technique” to evaluate mental impairments.\nSee 20 C.F.R. §§ 404.1520a, 416.920a. That method requires an\nALJ to consider “pertinent symptoms, signs, and laboratory\nfindings” to determine whether a claimant suﬀers from a\nmedically determinable mental impairment.\nId. §§ 404.1520a(b), 416.920a(b). Although the ALJ determined\nthat DeCamp did not have a listed impairment, the ALJ con-\ncluded that DeCamp had “moderate” restrictions in social\nfunctioning and concentration, persistence, or pace, and\n“mild” limitations in her activities of daily living.\n In determining DeCamp’s RFC, the ALJ gave some weight\nto the mental limitations identified by Drs. Lefevre, Pape, and\nGoldstein. Those doctors’ opinions supported “moderate” re-\nstrictions in concentration, persistence, or pace, and “mild”\nrestrictions in understanding, remembering, and carrying out\nsimple instructions. The ALJ therefore limited DeCamp to\n\fNo. 18-2105 7\n\n“unskilled work with an SVP of 2 or less, with no fast-paced\nproduction line or tandem tasks, at a job that allows her to be\noﬀ task up to 10% of the workday.” The ALJ also referred to\nthe opinions of Dr. Lefevre and Dr. Pape, who regarded De-\nCamp’s limitations not to be disabling.\n The ALJ found that DeCamp’s account of her symptoms\nwas “not entirely credible” for four reasons. First, DeCamp\nhad decided to take a vacation after her alleged onset date.\nThe ALJ recognized that “a vacation and a disability are not\nnecessarily mutually exclusive,” but DeCamp’s willingness to\ntravel suggested that she had overstated her symptoms. Next,\nDeCamp regularly walked her dog, an activity that conflicted\nwith her reports of disabling leg pain. Third, DeCamp’s ap-\npearance at her mental-status evaluations and hearings, as\ndocumented by the examining doctors, suggested that she\nwas not as disabled as she alleged. Last, DeCamp’s medical\nrecords did not reflect that she had complained of pain or\nother disabling symptoms from her conditions.\n DeCamp sought judicial review, but a district judge up-\nheld the ALJ’s decision. The judge explained that the ALJ’s\ncredibility assessment was sound because “the ALJ thor-\noughly discussed the substantial evidence that supports her\ndecision.” Moreover, the ALJ properly oriented the vocational\nexpert through hypothetical questions that adopted the doc-\ntors’ narrative explanations of DeCamp’s mental limitations.\nAnd DeCamp’s challenge to the ALJ’s determination that De-\nCamp would be oﬀ-task up to 10 percent of the work day\nfailed, the judge added, because her “argument assumes a\nprecision that this kind of limitation does not allow.” Rather,\nthe ALJ’s finding permissibly was “based on her judgment as\n\f8 No. 18-2105\n\nto the severity of Plaintiﬀ’s impairments, not a mathematical\nmeasurement.”\n II. ANALYSIS\n DeCamp first argues that the ALJ’s RFC determination\nand hypothetical question did not include all her limitations\nin concentration, persistence, and pace, and so the vocational\nexpert could not evaluate whether jobs existed for a claimant\nwith her limitations. Rather, DeCamp contends, the ALJ in-\ncluded limitations in the hypothetical question that did not\naccurately describe her abilities. The ALJ must explicitly ac-\ncount for all a claimant’s limitations in her hypothetical, in-\ncluding limitations in concentration, persistence, or pace, un-\nless the vocational expert has independently reviewed the\nmedical record. See Moreno v. Berryhill, 882 F.3d 722, 730 (7th\nCir. 2018); Lanigan v. Berryhill, 865 F.3d 558, 563, 565 (7th Cir.\n2017).\n We agree that the ALJ erred by not including DeCamp’s\n“moderate” limitations in concentration, persistence, and\npace in the hypothetical question to the vocational expert. The\nALJ’s hypothetical to the vocational expert omitted any men-\ntion of DeCamp’s moderate limitations in the four areas iden-\ntified by Dr. Pape (whose opinion the ALJ cited to support her\nfinding): maintaining attention and concentration for ex-\ntended periods; performing activities within a schedule,\nmaintaining regular attendance, and being punctual within\ncustomary tolerances; working in coordination or proximity\nto others without being distracted; and completing a normal\nworkday and workweek without interruptions from psycho-\nlogically based symptoms and performing at a consistent\npace. The ALJ opted instead to limit DeCamp to “unskilled\nwork” with no “fast-paced production line or tandem tasks.”\n\fNo. 18-2105 9\n\nWe have previously rejected similar formulations of a claim-\nant’s limitations because there is no basis to suggest that elim-\ninating jobs with strict production quotas or a fast pace may\nserve as a proxy for including a moderate limitation on con-\ncentration, persistence, and pace. See Moreno, 882 F.3d at 730;\nO’Connor-Spinner v. Colvin, 832 F.3d 690, 698 (7th Cir. 2016).\nThe ALJ’s analysis is similarly flawed with respect to De-\nCamp’s mild limitations in understanding, remembering, and\ncarrying out simple instructions and her moderate limitations\nin concentration, persistence, and pace as found by Dr. Gold-\nstein. An ALJ need not use “specific terminology,” but we\nhave “repeatedly rejected the notion that a hypothetical …\nconfining the claimant to simple, routine tasks and limited in-\nteractions with others adequately captures temperamental\ndeficiencies and limitations in concentration, persistence, and\npace.” Yurt v. Colvin, 758 F.3d 850, 858–59 (7th Cir. 2014); see\nalso Winsted v. Berryhill, No. 18-2228, 2019 WL 494052, at *4\n(7th Cir. Feb. 8, 2019); Varga v. Colvin, 794 F.3d 809, 814 (7th\nCir. 2015). Moreover, the vocational expert did not review De-\nCamp’s medical records, which could have excused the ALJ\nfrom stating all DeCamp’s limitations. See Varga, 794 F.3d at\n814; Yurt, 758 F.3d at 857.\n The Commissioner contends that the ALJ adequately ac-\ncounted for DeCamp’s limitations in her RFC determination\nand in the hypothetical question to the vocational expert by\nrelying on part of the narrative explanations (the part of the\nPRT and MRFC forms where the doctors provide a written\nexplanation of their findings, rather than the check-box sec-\ntions) oﬀered by Dr. Pape and Dr. Goldstein. True, both doc-\ntors oﬀered narrative explanations in addition to the check-\nboxes on the assessment forms, and an ALJ may rely on those\ndescriptions. See Varga, 794 F.3d at 816. But even if an ALJ may\n\f10 No. 18-2105\n\nrely on a narrative explanation, the ALJ still must adequately\naccount for limitations identified elsewhere in the record, in-\ncluding specific questions raised in check-box sections of\nstandardized forms such as the PRT and MRFC forms. See\nYurt, 758 F.3d at 859. In Yurt, a narrative explanation trans-\nlated the limitations identified by doctors in the check-box\nsections of the forms. See id. at 854–55. We still reversed and\nremanded because the ALJ did not adequately account for the\nlimitations identified by the doctor in the check-box section of\nthe forms. See id. at 859. Here, the ALJ similarly focused her\nanalysis on the doctors’ bottom-line conclusion that DeCamp\nwas not precluded from working without giving the voca-\ntional expert any basis to evaluate all DeCamp’s impairments,\nincluding those in concentration, persistence, and pace.\n III. CONCLUSION\n Because we determine that the ALJ did not properly eval-\nuate DeCamp’s limitations in concentration, persistence, and\npace, we do not address DeCamp’s other arguments. Accord-\ningly, we VACATE the judgment and remand this case to the\ndistrict court with directions to remand the case to the Social\nSecurity Administration.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371297/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594044/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,045		BMO Harris Bank N.A. v. Carol Anderson	2019-02-26	17-3073	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judg- es.", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 17-3073\nIN THE MATTER OF:\n CAROL S. ANDERSON AND MARK R. ANDERSON,\n Debtors.\nAPPEAL OF:\n BMO HARRIS BANK, N.A.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16 C 4748 — Jorge L. Alonso, Judge.\n ____________________\n\n ARGUED SEPTEMBER 17, 2018 — DECIDED FEBRUARY 26, 2019\n ____________________\n\n Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judg-\nes.\n EASTERBROOK, Circuit Judge. Mark Anderson and Walter\nKaiser jointly borrowed about $700,000 from BMO Harris\nBank; the loan was secured by a mortgage. They did not pay,\nand the Bank ﬁled a foreclosure action in state court. That\naction was put on hold when Anderson and his wife (who\nneed not be mentioned again) commenced a bankruptcy\nproceeding. After the Bank asked Bankruptcy Judge Cox to\n\f2 No. 17-3073\n\nlift the automatic stay under 11 U.S.C. §362 she entered an\norder granting “full and complete relief from the Automatic\nStay of Section 362 to permit BMO HARRIS BANK to pro-\nceed with the pending State Court foreclosure litigation with\nrespect to the property commonly known as 151 W. Wing\nSt., Unit 905, Arlington Heights, Illinois 60005 as more par-\nticularly described in the Motion for Relief.”\n Back in state court the Bank asked the judge to put the\nproperty up for auction. That was done, and the sale was\nconﬁrmed. After the sale the Bank asked for a deﬁciency\njudgment against Kaiser but not against Anderson. (Earlier\nthe Bank had requested a deﬁciency judgment against both\nborrowers, but it did not repeat this after the sale.) The state\njudge awarded the Bank about $650,000 in personam against\nKaiser, but with respect to Anderson the judgment was in\nrem only (that is, without recourse against Anderson). The\nBank did not appeal the omission of a deﬁciency judgment\nagainst Anderson.\n The state litigation ended in April 2015, but the federal\nlitigation continues. The Bank made a claim against Ander-\nson for the same $650,000 shortfall that the state judge had\nawarded against Kaiser. (Anderson and Kaiser are jointly\nand severally liable on the loan.) Anderson asked Judge Cox\nto hold that the state court’s judgment extinguished the\nBank’s claim through the doctrine of claim preclusion: the\nBank could have received a deﬁciency judgment against An-\nderson but did not, and Illinois does not allow single claims\nto be split into multiple suits or litigated in multiple forums.\nJudge Cox denied this motion, and Anderson took an inter-\nlocutory appeal under 28 U.S.C. §158(a)(3). The district court\nreversed, holding that the absence of a deﬁciency judgment\n\fNo. 17-3073 3\n\nagainst Anderson in the state case blocks any further pro-\nceedings against him related to this loan. 2017 U.S. Dist.\nLEXIS 142599 (N.D. Ill. Sept. 5, 2017).\n The Bank immediately appealed to us. Unlike the district\ncourt, which can accept interlocutory appeals under\n§158(a)(3), our jurisdiction is limited to ﬁnal decisions. 28\nU.S.C. §158(d)(1). (There are exceptions for appeals direct\nfrom bankruptcy courts to the courts of appeals, see\n§158(d)(2), but none applies.) We directed the parties to ﬁle\nsupplemental memoranda discussing appellate jurisdiction,\nparticularly because the Bank’s claim arose as a contested\nmaker in the main proceeding rather than as an adversary\naction, the usual source of appellate business when the main\nproceeding continues in the bankruptcy court. The memo-\nranda have been received, and we can proceed to decision.\n Many opinions in this circuit conclude that a district\ncourt’s decision is “ﬁnal” under §158(d)(1) when it conclu-\nsively resolves the sort of dispute that would be a stand-\nalone case outside of bankruptcy. See, e.g., Schaumburg Bank\n& Trust Co. v. Alsterda, 815 F.3d 306, 312–13 (7th Cir. 2016); In\nre Wade, 991 F.2d 402, 406 (7th Cir. 1993). Bullard v. Blue Hills\nBank, 135 S. Ct. 1686, 1692 (2015), implies approval of these\ndecisions. A claim to foreclose a mortgage and collect a deﬁ-\nciency judgment on the note is a common stand-alone dis-\npute outside of bankruptcy, so it is covered by this principle.\nAnd we do not see any reason why it should maker whether\na dispute that could have been a stand-alone suit outside\nbankruptcy has been resolved in an adversary proceeding or\na contested maker. This circuit has several times accepted\nappeals from ﬁnal decisions in contested makers. See, e.g., In\nre UAL Corp., 408 F.3d 847, 850 (7th Cir. 2005). Although\n\f4 No. 17-3073\n\nthese might be disparaged as drive-by jurisdictional rulings,\nsee Steel Co. v. Citizens for BeFer Environment, 523 U.S. 83, 91\n(1998), we lack a good reason to depart from them given the\nabsence of any such distinction in the statutory text.\n One potential jurisdictional problem remains, however.\nSome of our decisions say that an appeal under §158(d)(1) is\npossible “only if the bankruptcy court’s original order and\nthe district court’s order reviewing the bankruptcy court’s\noriginal order are both ﬁnal.” In re Rimsat, Ltd., 212 F.3d\n1039, 1044 (7th Cir. 2000). See also, e.g., In re Salem, 465 F.3d\n767, 771 (7th Cir. 2006); Zedan v. Habash, 529 F.3d 398, 402\n(7th Cir. 2008); Schaumburg Bank, 815 F.3d at 312. Although\nthe district court’s order is ﬁnal, the bankruptcy court’s or-\nder was not: Judge Cox denied a motion to dismiss the claim\nbut left open questions such as whether the Bank is entitled\nto a deﬁciency judgment and, if so, how much. If we take lit-\nerally the language in Rimsat and other opinions, we must\ndismiss this appeal.\n We do not think, however, that Rimsat and similar cases\nforeclose appeals of all disputes in which the district court’s\njurisdiction rests on §158(a)(3). All of the decisions cited in\nthe preceding paragraph—and there are more, cited in turn\nin those opinions—arise from appeals taken under 28 U.S.C.\n§158(d)(1), which provides: “The courts of appeals shall have\njurisdiction of appeals from all ﬁnal decisions, judgments,\norders, and decrees entered under subsections (a) and (b) of\nthis section.” Subsection (a), the only one relevant here, deals\nwith proceedings in the district court, not the bankruptcy\ncourt. The statute thus asks whether the district court’s deci-\nsion is ﬁnal, not whether the bankruptcy court’s was. We\ncould not adhere to the position that an interlocutory bank-\n\fNo. 17-3073 5\n\nruptcy-court decision, followed by a ﬁnal district-court deci-\nsion, is not appealable, without contradicting the statute.\n As far as we can see, none of the opinions in which this\nlanguage appears stems from the sequence we have: an in-\nterlocutory decision by the bankruptcy judge, followed by a\nﬁnal decision in the district court. (Final because, after the\ndistrict court’s decision, there is no more work for the bank-\nruptcy judge to do.) In Rimsat, Salem, and Zedan both deci-\nsions were ﬁnal (so appeal was not problematic); in Schaum-\nburg Bank both decisions were interlocutory, so the absence\nof appellate jurisdiction also was straightforward. The “both\ndecisions must be ﬁnal” language makers only when one\ncourt has rendered a ﬁnal decision and the other has not.\n For example, suppose that the order of decision in this\ncase had been reversed: Judge Cox found the Bank’s claim\nprecluded, and the district court disagreed, directing the\nbankruptcy court to determine how much (if anything) An-\nderson owed to the Bank. In that sequence an appeal to this\ncourt would not have been authorized—not because one de-\ncision was ﬁnal and the other not, but because the district\ncourt’s decision, in particular, would not have been ﬁnal. See,\ne.g., In re Rockford Products Corp., 741 F.3d 730, 733 (7th Cir.\n2013); In re Gordon, 743 F.3d 720, 723 (10th Cir. 2014).\n But when an interlocutory decision by a bankruptcy\njudge is reversed by a ruling that leaves no more work for\neither the bankruptcy court or the district court, the decision\nis canonically ﬁnal, making an appeal under §158(d)(1)\nproper. That’s our situation.\n To put this diﬀerently, if the district court’s order leaves\nmore work to be done (other than a ministerial action) in ei-\n\f6 No. 17-3073\n\nther the bankruptcy court or the district court, the district\ncourt’s order is itself not ﬁnal. An immediate appeal could\nnot conclusively resolve the case, because the loose ends still\nto be tied up (in the bankruptcy court or the district court)\ncould generate another appeal, violating the policy against\npiecemeal appeals. Here, by contrast, the district court’s de-\ncision leaves nothing more to be done there or in the bank-\nruptcy court: the Bank’s claim against Anderson is done (un-\nless we reverse).\n A table may help to visualize the four possibilities:\n\n Bankruptcy court Bankruptcy court\n decision ﬁnal decision interloc-\n utory\n\nDistrict court de- Appealable (e.g., Appealable (this\n cision ﬁnal Rimsat) case)\n\nDistrict court de- Not appealable Not appealable\n cision interloc- (e.g., Rockford (e.g., Schaumburg\n utory Products) Bank)\n\nOur conclusion is consistent with the holding of every case\nwe could ﬁnd. But because we disapprove language that has\nbeen repeated in many of the circuit’s decisions, we have cir-\nculated this opinion to all judges in active service. See Cir-\ncuit Rule 40(e). None favored a hearing en banc.\n On to the merits. The parties begin their presentation by\nasking whether Judge Cox’s order authorized the state court\nto enter a judgment against Anderson in personam. They dis-\ncuss the state’s law of preclusion only as a secondary con-\nsideration. This is backward. The eﬀect of a state court’s de-\n\fNo. 17-3073 7\n\ncision depends on state law. Judgments of state courts “shall\nhave the same full faith and credit in every court within the\nUnited States and its Territories and Possessions as they\nhave by law or usage in the courts of such State, Territory or\nPossession from which they are taken.” 28 U.S.C. §1738. So\nwe must ask whether the Bank could seek further relief from\nAnderson by a new suit in the courts of Illinois. Only if the\nanswer is no must we inquire whether something about the\nautomatic stay or Judge Cox’s order supersedes §1738.\n Illinois requires litigants to present in a single proceeding\nall of their theories arising from one transaction. In other\nwords, it disallows claim spliking. See, e.g., GE Frankona Re-\ninsurance Co. v. Legion Indemnity Co., 373 Ill. App. 3d 969\n(2007). A recent decision applies this understanding to real-\nestate foreclosure and holds that creditors who do not ask\nfor deﬁciency judgments in the foreclosure actions cannot\nseek that relief later, in a diﬀerent proceeding. See LSREF2\nNova Investments III, LLC v. Coleman, 2015 IL App (1st)\n140184. The Bank observes that some earlier decisions take\nthe mortgage and note to be separate transactions, despite\ntheir close relation, and permiked each to be sued on sepa-\nrately. See, e.g., Turczak v. First American Bank, 2013 IL App\n(1st) 121964; LP XXVI, LLC v. Goldstein, 349 Ill. App. 3d 237\n(2004).\n We need not try to anticipate how the Supreme Court of\nIllinois would reconcile this apparent conﬂict, because all of\nthe state’s authorities agree that, if a litigant presents both\nthe mortgage and the note in a single action, and fails to seek\na deﬁciency judgment on the note, it cannot do so in a sepa-\nrate suit. That’s what happened here. The Bank ﬁled a two-\ncount complaint seeking relief under both the mortgage\n\f8 No. 17-3073\n\n(count one) and the note (count two). Once the property had\nbeen sold, however, it did not pursue a deﬁciency judgment\nagainst Anderson. We could not ﬁnd any state decision that\npermits a lender to do this and still try to get a deﬁciency\njudgment on the note in some separate proceeding. And if\nthe Bank cannot get such a judgment in state court, then un-\nder §1738 it cannot get one in federal court either.\n To this the Bank responds that the state court’s decision\nis not ﬁnal—after all, it leaves dangling the complaint’s re-\nquest for a deﬁciency judgment against Anderson. If the\njudgment is not ﬁnal, it lacks preclusive eﬀect. But the state\njudge did not reserve any question for future decision. When\ngranting summary judgment to the Bank, the judge stated\nthat she was entering judgment “under Counts I and II of the\nSecond Amended Complaint” (that is, both the court seeking\na deﬁciency judgment and the one seeking foreclosure). She\nalso stated that the maker remained pending, but just for the\npurposes of enforcing the decision and conﬁrming the sale.\nIllinois treats a foreclosure action as ﬁnally decided once the\n“court enters an order approving the sale and directing the\ndistribution.” EMC Mortgage Corp. v. Kemp, 2012 IL 113419\n¶11. The trial court entered such an order in April 2015, and\nin almost four years since there has not been any hint from\nthe judge that she considers the job unﬁnished—nor has the\nBank asked the judge to do anything further. We conclude\nthat the decision is ﬁnal.\n The Bank tells us that the state judiciary might permit it\nto reopen the proceeding to seek a deﬁciency judgment\nagainst Anderson. Maybe so, but the Bank has not asked. We\nmust apply §1738 to the decision on the books.\n\fNo. 17-3073 9\n\n The Bank insists, however, that claim preclusion is irrele-\nvant because §362, the automatic stay in bankruptcy, de-\nprived the state court of “jurisdiction” to make any decision\nat all, except to the extent allowed by the bankruptcy\njudge—and the Bank believes that a state court’s judgment\ncannot aﬀect any maker over which it lacks jurisdiction. This\nline of argument is doubly wrong.\n First, §362(a) does not concern jurisdiction. It provides\nthat the ﬁling of a bankruptcy action “operates as a stay” of\ncertain makers. It does not establish exclusive federal juris-\ndiction over any of those makers. One of the things the state\ncourt had jurisdiction to decide was the meaning of the\nbankruptcy court’s order lifting the automatic stay. If the\nBank had asked for a judgment in personam against Ander-\nson, he might have replied (contrary to the position he takes\nin this court) that Judge Cox’s order did not allow this. If the\nstate court agreed with that view, it might have held the case\nopen to allow deﬁciency-judgment proceedings after the\nbankruptcy ended. But the Bank did not ask, and the state\ncourt never had to decide what eﬀect to give to either the au-\ntomatic stay or Judge Cox’s order. Having bypassed this\nmaker in state court, the Bank is not well situated to ask us\nto decide what the state court might have done, had it been\nasked. The one thing it would not have done is declare that it\nlacked jurisdiction.\n Second, even federal statutes that do provide for exclu-\nsive jurisdiction, such as the antitrust laws, do not supersede\n§1738. That’s the holding of Marrese v. American Academy of\nOrthopaedic Surgeons, 470 U.S. 373 (1985). Marrese sued in\nIllinois under a state-law theory. After losing, he ﬁled an an-\ntitrust suit, in federal court, concerning the same transac-\n\f10 No. 17-3073\n\ntions. The Supreme Court held that §1738 and state-law rules\nof preclusion govern the defense of preclusion in the federal\nsuit even though federal courts have exclusive jurisdiction of\nfederal antitrust claims. That’s equally true of claims pend-\ning in bankruptcy, even if we were to akach the “jurisdic-\ntional” label to the automatic stay.\n Marrese considered but rejected the possibility that the\nantitrust laws could be deemed to supersede §1738 by estab-\nlishing exclusive federal jurisdiction. 470 U.S. at 380–81. See\nalso Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982)\n(federal civil-rights laws do not modify §1738). Section 362 of\nthe Bankruptcy Code, which does not address §1738, should\nbe treated the same for this purpose as federal antitrust and\ncivil-rights laws.\n Marrese mentioned that state law might itself carve out\nmakers over which state courts lack jurisdiction. See 470 U.S.\nat 373, citing Restatement (Second) of Judgments §26(1)(c)\n(1982). That possibility need not detain us. The Bank could\nhave asked the state court to determine for itself how far\nJudge Cox’s order lifted the stay. If Anderson took in the\nstate court the same view he takes here—that Judge Cox’s\norder lifted the stay in full and allowed the state tribunal to\nexercise plenary power over the Bank’s claims—the whole\ndispute would have been wrapped up then and there. The\nstate court was not powerless.\n For the reasons we have given, it is unnecessary to de-\ntermine the meaning of Judge Cox’s order. Anderson em-\nphasizes the words “full and complete relief,” while the\nBank asserts that the reference to the property securing the\nloan implies that the stay had been lifted with respect to the\nmortgage and not the note. The Bank wants us to construe\n\fNo. 17-3073 11\n\norders lifting or modifying the automatic stay “strictly”\nagainst creditors (though it is hard to see why banks would\nthink that such a rule favors them). A few courts have issued\nopinions articulating a strict-construction norm. We need not\ndecide but are skeptical. Why create a presumption against\npermiking a state court to decide issues of state law?\n One set of problems in bankruptcy law comes from the\nfact that bankruptcy judges lack the salary and tenure pro-\ntections of Article III, which means that they cannot exercise\nthe same powers as district judges over disputes arising un-\nder state law. See Stern v. Marshall, 564 U.S. 462 (2011);\nNorthern Pipeline Construction Co. v. Marathon Pipe Line Co.,\n458 U.S. 50 (1982). Bankruptcy judges may transfer authority\nover state-law claims (or whole cases) to district judges, and\nthey may relinquish authority in favor of state courts. 28\nU.S.C. §1334. Having ﬁled a claim in Anderson’s bankrupt-\ncy, the Bank could not complain about the bankruptcy\njudge’s limited tenure-and-salary protections. But a bank-\nruptcy judge remains free to think that some claims can be\nresolved more quickly, or more appropriately, by the state\ncourts. Judge Cox made that decision at least about the\nBank’s akempt to foreclose on the mortgage. Having made\nthat decision, it would be odd to want to duplicate the pro-\nceedings, even in part, by reserving the deﬁciency judgment\nto herself. Why interpret the order to produce two proceed-\nings when one suﬃces?\n Allowing the state judiciary to enter a deﬁciency judg-\nment in a foreclosure proceeding does not undermine any\nfunction of bankruptcy law. If the state judge had held that\nKaiser and Anderson are jointly and severally liable for the\n$650,000 deﬁciency, the Bank’s claim still would have re-\n\f12 No. 17-3073\n\nturned to the bankruptcy court for it to resolve any disputes\nabout the priority of competing claims against Anderson’s\nassets and whether any particular debt should be dis-\ncharged. Trying to get around the application of §1738 or\nreading Judge Cox’s order narrowly to compel the sort of\nclaim spliking forbidden by state law would not serve any\ngoal of federal bankruptcy policy. It would simply prolong\nlitigation. (Indeed, on the Bank’s current understanding the\nstate court could and perhaps should have left the foreclo-\nsure proceeding in stasis until it had indubitable authority to\nresolve the whole case. That would not have served either\nthe Bank’s interests or Anderson’s.)\n The Bank had its chance in state court and did not use it.\nIt is too late to hold Anderson liable for a deﬁciency judg-\nment. The Bank must be content with what it can collect\nfrom Kaiser.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371298/", "author_raw": "Frank Hoover Easterbrook"}]}	EASTERBROOK	KANNE	BRENNAN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594045/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,164		Debara DeCamp v. Nancy Berryhill	2019-02-26	18-2105	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, KANNE, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2105\nDEBARA DECAMP,\n Plaintiff-Appellant,\n v.\n\nNANCY A. BERRYHILL,\nActing Commissioner of Social Security,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 15-CV-1261 — William C. Griesbach, Chief Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 26, 2019\n ____________________\n\n Before WOOD, Chief Judge, KANNE, and ST. EVE, Circuit\nJudges.\n PER CURIAM. Debara DeCamp, a 55-year old woman, chal-\nlenges the denial of her applications for Disability Insurance\nBenefits and Supplemental Security Income, in which she\nclaimed disability based on a benign brain tumor, neck and\nback issues, and bipolar disorder. DeCamp argues that the ad-\nministrative law judge erred by failing to (1) evaluate\n\f2 No. 18-2105\n\nproperly DeCamp’s limits with concentration, persistence, or\npace, (2) support her decision to limit DeCamp to 10 percent\noﬀ-task time for purposes of assessing residual functional ca-\npacity (“RFC”), and (3) support her adverse credibility deter-\nmination. We agree that the ALJ did not properly address De-\nCamp’s limitations in concentration, persistence, or pace, and\non that basis we remand.\n I. BACKGROUND\n DeCamp has a history of depression, drug overdoses, and\nsuicidal thoughts. She overdosed on medication three times\nin October 2007. She admitted to doctors that she had at-\ntempted suicide and had been cutting her legs. Her treatment\nnotes also reflect a history of alcohol abuse.\n In 2010 DeCamp complained of headaches, and an MRI\nrevealed a tumor in her pineal gland, which secretes hor-\nmones that regulate sleep cycles. A neurosurgeon noted that\nthe mass was benign and directed DeCamp to follow up about\nher migraines with her primary-care doctor, Dr. Jane Walloch,\nand repeat the MRI in six months. DeCamp did so, and Dr.\nWalloch—noting an improvement in DeCamp’s headaches—\nincreased her dosage for Cymbalta (an antidepressant). De-\nCamp also told Dr. Walloch of her plans to travel, and the doc-\ntor told DeCamp to follow up upon her return.\n DeCamp returned to Dr. Walloch in 2011 and reported\nfeeling depressed. She no longer had health insurance, De-\nCamp said, so Cymbalta was too expensive. DeCamp told Dr.\nWalloch that her headaches had returned and that she was\n“cutting again” in connection with her depression. Dr. Wal-\nloch changed DeCamp’s medication and referred DeCamp to\npsychiatric counseling.\n\fNo. 18-2105 3\n\n In August 2011 Dr. Esther Lefevre, a psychologist, re-\nviewed DeCamp’s medical records and completed two ques-\ntionnaires—a Psychiatric Review Technique (“PRT”) Form\nand a Mental Residual Functional Capacity Assessment\n(“MRFC”). On the PRT form, Dr. Lefevre checked a box not-\ning that DeCamp had “moderate” limitations in maintaining\nconcentration, persistence, or pace. The doctor also desig-\nnated on the MRFC form that DeCamp was “moderately lim-\nited” in two more ways—her ability (1) “to perform activities\nwithin a schedule, maintain regular attendance, and be punc-\ntual within customary tolerances” and (2) “to complete a nor-\nmal workday and workweek without interruptions from psy-\nchologically based symptoms and to perform at a consistent\npace without an unreasonable number and length of rest pe-\nriods.” In a supplemental narrative explanation, Dr. Lefevre\nelaborated that DeCamp “may have some diﬃculty with con-\ncentration and persistence at times but she is able to meet the\ndemands of basic unskilled work.”\n DeCamp told Dr. Walloch in November 2011 that her\nheadaches were worse. She added that she was not harming\nherself and had no suicidal thoughts. Dr. Walloch changed\nDeCamp’s medication for her migraines and encouraged her\nto follow up with her primary care doctor for an MRI of her\nhead.\n Agency psychologist Michael Goldstein, Ph.D., examined\nDeCamp in March 2012 and prepared a report that described\nmental limitations similar to those found by Dr. Lefevre. Dr.\nGoldstein noted that DeCamp had “mild” limitations in un-\nderstanding, remembering, and carrying out simple instruc-\ntions, and “moderate” limitations in maintaining concentra-\ntion, attention, and work pace, and in adapting to change.\n\f4 No. 18-2105\n\nAnd DeCamp had “extreme” limitations in withstanding rou-\ntine work stresses and responding appropriately to co-work-\ners and supervisors.\n Dr. Deborah Pape, another state-agency doctor, opined\nthat DeCamp was more limited than Dr. Lefevre found. On a\nMRFC form, Dr. Pape specified that DeCamp was “markedly”\nlimited in her abilities “to understand and remember detailed\ninstructions” and “to carry out detailed instructions.” She also\nwas “moderately” limited in her ability to sustain concentra-\ntion and persistence. Dr. Pape made “no severe findings of\ndiﬀ[iculty] getting along [with] others, supervisors or\ncoworkers,” but she added that DeCamp was “capable of\nwithstanding the demands of unskilled as defined by SSA”\nwith moderate limitations.\n At a hearing in December 2012 before an ALJ, DeCamp de-\nscribed how pain in her back, leg, and hands limited her daily\nactivities. Her pain made it diﬃcult to stand, walk, sleep, or\ngrip things. She added that she cared for a dog and a bird and\nwas able to make simple meals, like soup or microwaved\nmeals. And she said that she was able to walk to her mailbox\nand back.\n At another hearing in 2015,1 DeCamp testified that she\nhad migraines four times a week that lasted all day. On a typ-\nical day, she would watch television, read, use social media,\nand lie down. Her medications also made her tired, so she\npreferred to sleep when she felt “super depressed.” But her\ndrug and alcohol problems were under control, she added.\n\n 1 The Commissioner had agreed to a new hearing after the ALJ issued\n\nan unfavorable decision without explaining how Dr. Pape’s opinion was\nused in crafting DeCamp’s mental RFC.\n\fNo. 18-2105 5\n\n The ALJ then questioned the vocational expert about jobs\na hypothetical claimant with similar limitations to DeCamp\ncould perform. The ALJ asked the vocational expert whether\njobs existed for a hypothetical claimant who, as relevant here,\nwas:\n limited to unskilled work involving [Specific Voca-\n tional Preparation (“SVP”)]: 2 or less; no fast paced\n production line or tandem tasks; few if any changes\n in the work setting, meaning that the work place and\n tasks change no more than occasionally and only\n one or two times per month at most; no more than\n occasional interaction with coworkers, supervisors,\n and the public; she may be oﬀ task or oﬀ pace up to\n 10 percent of the work day in addition to regular\n breaks.\n The vocational expert, who testified that she had reviewed\nan unspecified “E file”2 in preparation for the hearing, re-\nsponded that jobs existed for such a person. But if the hypo-\nthetical claimant might “be oﬀ pace or oﬀ task more than 15\npercent of the work day” or “need additional unscheduled\nbreaks,” then no competitive work would be available.\n The ALJ applied the required five-step analysis for as-\nsessing disability, see 20 C.F.R. §§ 404.1520(a)(4),\n416.920(a)(4), and concluded that DeCamp was not disabled.\nThe ALJ determined that DeCamp had not engaged in sub-\nstantial gainful employment since her alleged onset date in\nFebruary 2009 (step one); that her conditions (“history of\n\n 2 We asked the parties at oral argument to clarify what was in De-\nCamp’s “E file.” They agreed that the “E file” is a subset of the adminis-\ntrative record, namely, those files designated with the letter “E” at the end\nof the exhibit number.\n\f6 No. 18-2105\n\ncervical discectomy in 2003; right carpal tunnel release in\n2004; L5-S1 lumbar fusion in 2010; chronic back pain;\nlongstanding neoplasm of the pineal gland; headaches; his-\ntory of substance abuse; and aﬀective and anxiety disorders”)\nwere severe impairments (step two); that these conditions did\nnot equal a listed impairment (step three); that she had the\nresidual functional capacity to perform light work, except that\nshe was limited to “unskilled work … with no fast-paced pro-\nduction line or tandem tasks,” and she could “occasionally in-\nteract with coworkers, supervisors, and the public,” and she\n“may be oﬀ task up to 10 percent of the workday, in addition\nto normal breaks” (step four); and that she could work as a\nmachine tender, sorter, or oﬃce helper (step five).\n In determining that DeCamp’s conditions did not equal a\nlisted impairment at step three, the ALJ applied a so-called\n“special technique” to evaluate mental impairments.\nSee 20 C.F.R. §§ 404.1520a, 416.920a. That method requires an\nALJ to consider “pertinent symptoms, signs, and laboratory\nfindings” to determine whether a claimant suﬀers from a\nmedically determinable mental impairment.\nId. §§ 404.1520a(b), 416.920a(b). Although the ALJ determined\nthat DeCamp did not have a listed impairment, the ALJ con-\ncluded that DeCamp had “moderate” restrictions in social\nfunctioning and concentration, persistence, or pace, and\n“mild” limitations in her activities of daily living.\n In determining DeCamp’s RFC, the ALJ gave some weight\nto the mental limitations identified by Drs. Lefevre, Pape, and\nGoldstein. Those doctors’ opinions supported “moderate” re-\nstrictions in concentration, persistence, or pace, and “mild”\nrestrictions in understanding, remembering, and carrying out\nsimple instructions. The ALJ therefore limited DeCamp to\n\fNo. 18-2105 7\n\n“unskilled work with an SVP of 2 or less, with no fast-paced\nproduction line or tandem tasks, at a job that allows her to be\noﬀ task up to 10% of the workday.” The ALJ also referred to\nthe opinions of Dr. Lefevre and Dr. Pape, who regarded De-\nCamp’s limitations not to be disabling.\n The ALJ found that DeCamp’s account of her symptoms\nwas “not entirely credible” for four reasons. First, DeCamp\nhad decided to take a vacation after her alleged onset date.\nThe ALJ recognized that “a vacation and a disability are not\nnecessarily mutually exclusive,” but DeCamp’s willingness to\ntravel suggested that she had overstated her symptoms. Next,\nDeCamp regularly walked her dog, an activity that conflicted\nwith her reports of disabling leg pain. Third, DeCamp’s ap-\npearance at her mental-status evaluations and hearings, as\ndocumented by the examining doctors, suggested that she\nwas not as disabled as she alleged. Last, DeCamp’s medical\nrecords did not reflect that she had complained of pain or\nother disabling symptoms from her conditions.\n DeCamp sought judicial review, but a district judge up-\nheld the ALJ’s decision. The judge explained that the ALJ’s\ncredibility assessment was sound because “the ALJ thor-\noughly discussed the substantial evidence that supports her\ndecision.” Moreover, the ALJ properly oriented the vocational\nexpert through hypothetical questions that adopted the doc-\ntors’ narrative explanations of DeCamp’s mental limitations.\nAnd DeCamp’s challenge to the ALJ’s determination that De-\nCamp would be oﬀ-task up to 10 percent of the work day\nfailed, the judge added, because her “argument assumes a\nprecision that this kind of limitation does not allow.” Rather,\nthe ALJ’s finding permissibly was “based on her judgment as\n\f8 No. 18-2105\n\nto the severity of Plaintiﬀ’s impairments, not a mathematical\nmeasurement.”\n II. ANALYSIS\n DeCamp first argues that the ALJ’s RFC determination\nand hypothetical question did not include all her limitations\nin concentration, persistence, and pace, and so the vocational\nexpert could not evaluate whether jobs existed for a claimant\nwith her limitations. Rather, DeCamp contends, the ALJ in-\ncluded limitations in the hypothetical question that did not\naccurately describe her abilities. The ALJ must explicitly ac-\ncount for all a claimant’s limitations in her hypothetical, in-\ncluding limitations in concentration, persistence, or pace, un-\nless the vocational expert has independently reviewed the\nmedical record. See Moreno v. Berryhill, 882 F.3d 722, 730 (7th\nCir. 2018); Lanigan v. Berryhill, 865 F.3d 558, 563, 565 (7th Cir.\n2017).\n We agree that the ALJ erred by not including DeCamp’s\n“moderate” limitations in concentration, persistence, and\npace in the hypothetical question to the vocational expert. The\nALJ’s hypothetical to the vocational expert omitted any men-\ntion of DeCamp’s moderate limitations in the four areas iden-\ntified by Dr. Pape (whose opinion the ALJ cited to support her\nfinding): maintaining attention and concentration for ex-\ntended periods; performing activities within a schedule,\nmaintaining regular attendance, and being punctual within\ncustomary tolerances; working in coordination or proximity\nto others without being distracted; and completing a normal\nworkday and workweek without interruptions from psycho-\nlogically based symptoms and performing at a consistent\npace. The ALJ opted instead to limit DeCamp to “unskilled\nwork” with no “fast-paced production line or tandem tasks.”\n\fNo. 18-2105 9\n\nWe have previously rejected similar formulations of a claim-\nant’s limitations because there is no basis to suggest that elim-\ninating jobs with strict production quotas or a fast pace may\nserve as a proxy for including a moderate limitation on con-\ncentration, persistence, and pace. See Moreno, 882 F.3d at 730;\nO’Connor-Spinner v. Colvin, 832 F.3d 690, 698 (7th Cir. 2016).\nThe ALJ’s analysis is similarly flawed with respect to De-\nCamp’s mild limitations in understanding, remembering, and\ncarrying out simple instructions and her moderate limitations\nin concentration, persistence, and pace as found by Dr. Gold-\nstein. An ALJ need not use “specific terminology,” but we\nhave “repeatedly rejected the notion that a hypothetical …\nconfining the claimant to simple, routine tasks and limited in-\nteractions with others adequately captures temperamental\ndeficiencies and limitations in concentration, persistence, and\npace.” Yurt v. Colvin, 758 F.3d 850, 858–59 (7th Cir. 2014); see\nalso Winsted v. Berryhill, No. 18-2228, 2019 WL 494052, at *4\n(7th Cir. Feb. 8, 2019); Varga v. Colvin, 794 F.3d 809, 814 (7th\nCir. 2015). Moreover, the vocational expert did not review De-\nCamp’s medical records, which could have excused the ALJ\nfrom stating all DeCamp’s limitations. See Varga, 794 F.3d at\n814; Yurt, 758 F.3d at 857.\n The Commissioner contends that the ALJ adequately ac-\ncounted for DeCamp’s limitations in her RFC determination\nand in the hypothetical question to the vocational expert by\nrelying on part of the narrative explanations (the part of the\nPRT and MRFC forms where the doctors provide a written\nexplanation of their findings, rather than the check-box sec-\ntions) oﬀered by Dr. Pape and Dr. Goldstein. True, both doc-\ntors oﬀered narrative explanations in addition to the check-\nboxes on the assessment forms, and an ALJ may rely on those\ndescriptions. See Varga, 794 F.3d at 816. But even if an ALJ may\n\f10 No. 18-2105\n\nrely on a narrative explanation, the ALJ still must adequately\naccount for limitations identified elsewhere in the record, in-\ncluding specific questions raised in check-box sections of\nstandardized forms such as the PRT and MRFC forms. See\nYurt, 758 F.3d at 859. In Yurt, a narrative explanation trans-\nlated the limitations identified by doctors in the check-box\nsections of the forms. See id. at 854–55. We still reversed and\nremanded because the ALJ did not adequately account for the\nlimitations identified by the doctor in the check-box section of\nthe forms. See id. at 859. Here, the ALJ similarly focused her\nanalysis on the doctors’ bottom-line conclusion that DeCamp\nwas not precluded from working without giving the voca-\ntional expert any basis to evaluate all DeCamp’s impairments,\nincluding those in concentration, persistence, and pace.\n III. CONCLUSION\n Because we determine that the ALJ did not properly eval-\nuate DeCamp’s limitations in concentration, persistence, and\npace, we do not address DeCamp’s other arguments. Accord-\ningly, we VACATE the judgment and remand this case to the\ndistrict court with directions to remand the case to the Social\nSecurity Administration.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371417/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594164/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,259	Leroy WASHINGTON, on His Own Behalf and on Behalf of a Class of Those Similarly Situated, Plaintiff-Appellee, v. MARION COUNTY PROSECUTOR, Defendant-Appellant.	Leroy Washington v. Marion County Prosecutor	2019-02-26	17-2933	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Ripple, Manion", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2933\nLEROY WASHINGTON, on his own\nbehalf and on behalf of a Class\nof those similarly situated,\n Plaintiff-Appellee,\n\n v.\n\nMARION COUNTY PROSECUTOR,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-02980-JMS-DML — Jane Magnus-Stinson, Chief Judge.\n ____________________\n\n ARGUED NOVEMBER 29, 2018 — DECIDED FEBRUARY 26, 2019\n ____________________\n\n Before FLAUM, RIPPLE, and MANION, Circuit Judges.\n MANION, Circuit Judge. Indianapolis police stopped a car\ndriven and owned by Leroy Washington in September 2016.\nWashington was arrested and ultimately charged with multi-\nple Indiana crimes, including dealing in marijuana. Police\nseized his vehicle for forfeiture. Washington brought a class-\naction constitutional challenge. The district court declared\n\f2 No. 17-2933\n\nIndiana’s vehicle forfeiture statute (I.C. 34-24-1-1(a)(1) read in\nconjunction with other provisions in the same chapter) un-\nconstitutional. The Marion County Prosecutor appealed.\nWhile the appeal pended, Indiana amended the statute. The\nProsecutor argues the amendments fix any constitutional\nproblems, but Washington disagrees. We remand to the dis-\ntrict court to address the amendments.\n I. Background\n Washington was driving a vehicle he owned when an In-\ndianapolis police oﬃcer pulled him over on September 21,\n2016. Washington was arrested and charged with three felo-\nnies: dealing in marijuana, resisting law enforcement, and ob-\nstruction of justice. The oﬃcer had Washington’s vehicle\ntowed and held for forfeiture pursuant to Indiana Code 34-\n24-1-1(a)(1) and 2(a)(1).\n On November 1, 2016, Washington demanded return of\nhis vehicle per I.C. 34-24-1-3. He filed a federal class-action\ncomplaint the next day, claiming the seizures of his vehicle\nand the class’s vehicles under I.C. 34-24-1-2(a)(1) violate the\nFourteenth Amendment’s due process clause. In a clarifying\nbrief requested by the district court, Washington said he chal-\nlenged I.C. 34-24-1-2(a)(1) as applied. But the court construed\nthe challenge as a facial challenge to I.C. 34-24-1-1(a)(1), read\nin conjunction with other provisions of that chapter.\n In early February 2017, the Marion County Prosecutor’s\nOﬃce and the Indianapolis Metropolitan Police Department\nreleased the vehicle to Washington. On February 3, 2017, De-\nfendants moved to dismiss the case as moot given the vehi-\ncle’s return. Later that month, Washington moved for sum-\nmary judgment.\n\fNo. 17-2933 3\n\n On August 18, 2017, the district court certified a class and\ngranted Washington summary judgment. The court declared\nI.C. 34-24-1-1(a)(1) (as read in conjunction with other provi-\nsions of the same chapter) unconstitutional for violating the\ndue process clauses. The court permanently enjoined Defend-\nants from enforcing it. In particular, the court concluded the\nstatutory provisions allowing for seizure and retention of ve-\nhicles without an opportunity for an individual to challenge\npre-forfeiture deprivation are unconstitutional. The Prosecu-\ntor appealed. After the judgment, and while this appeal\npended, Indiana amended its vehicle forfeiture statute.\n The Prosecutor continues to argue on appeal that the old\nversion of the statute did not violate the due process clause.\nThe Prosecutor also argues the new version changed and in-\ncreased the available process, thereby ameliorating any “po-\ntential” due process deficiencies identified by the district\ncourt. For example, the Prosecutor argues the amended stat-\nute provides for a probable cause aﬃdavit, a motion for pro-\nvisional release, and a shortened window for the Prosecutor\nto file a forfeiture complaint. These changes, the argument\ngoes, satisfy the district court’s due process concerns by al-\nlowing a person interested in a vehicle to challenge pre-forfei-\nture deprivation. The Prosecutor moved us to dismiss this\ncase as moot given the statutory amendments.\n But Washington argues the amendments are superficial,\nthe same or similar problems exist, and the statute as\namended remains unconstitutional. He argues, for example,\nthat one new provision sets out a procedure the court already\nheld constitutionally deficient. He argues the court required a\ntimely post-seizure, pre-forfeiture hearing at a minimum, but\nthe amendments do not provide this. He argues the\n\f4 No. 17-2933\n\namendment providing for “provisional release” is meaning-\nless or illusory because the mere filing of a motion by the Pros-\necutor will bar provisional release. He points out that the\namended statute still bars replevin. He argues the statute as\namended prevents a court from asking the core question\n(within an appropriate time): Is there probable cause to be-\nlieve the vehicle owner had some involvement in the wrong-\ndoing? Washington maintains that the statute, before and af-\nter the amendments, does not provide due process. In short,\nhe argues the amendments do not cure the due process defi-\nciency, do not provide any meaningful impact, and do not\nmoot his claim.\n II. Discussion\n The district court concluded Indiana’s statutory provi-\nsions allowing for seizure and retention of vehicles without\nan opportunity to challenge pre-forfeiture deprivation are un-\nconstitutional. Indiana amended the law, but Washington ar-\ngues the amendments do not fix the constitutional problems:\n When an innocent owner’s vehicle is used by a\n third party to commit a crime, the vehicle is\n seized by law enforcement. Because evidence of\n innocent ownership is not considered at the ex\n parte probable cause determination, the Court\n will generally order the vehicle to be held. The\n prosecutor can then file a motion under Indiana\n Code Section 34-24-1-2(j), which prevents provi-\n sional release. The statute does not require any\n expedited process for addressing a motion un-\n der [that section]. As a result, the individual\n loses the ability to have a prompt hearing to\n challenge continued retention of the vehicle.\n\fNo. 17-2933 5\n\n The ability of the State to hold property for an\n extended period of time, while simultaneously\n preventing judicial intervention, creates power-\n ful leverage that can be used to coerce even in-\n nocent owners to buy back their own property\n though a settlement agreement.\n (Appellees’ Br., DE 25 at 36.)\n Scholars chronicle many problems with forfeiture laws.1\nProfessor Crepelle observed that in 2015, law enforcement\ntook more property from Americans than criminals did.2 Jus-\ntice Thomas has expressed skepticism of forfeiture.3\n\n\n\n\n 1 Note, How Crime Pays: The Unconstitutionality of Modern Civil Asset\nForfeiture as a Tool of Criminal Law Enforcement, 131 Harv. L. Rev. 2387\n(2018); Adam Crepelle, Probable Cause to Plunder: Civil Asset Forfeiture and\nthe Problems It Creates, 7 Wake Forest J.L. & Pol’y 315 (2017); Barclay\nThomas Johnson, Note, Restoring Civility—The Civil Asset Forfeiture Reform\nAct of 2000: Baby Steps Towards a More Civilized Civil Forfeiture System, 35\nInd. L. Rev. 1045 (2002); but see Caleb Nelson, The Constitutionality of Civil\nForfeiture, 125 Yale L.J. 2446 (2016) (arguing forfeiture statutes might be\nunfair or unwise, but their central characteristics do not violate the Con-\nstitution).\n 2 Crepelle, supra note 1, at 315.\n 3 “[A]mbitious modern statutes and prosecutorial practices have all\nbut detached themselves from the ancient notion of civil forfeiture … .”\nUnited States v. James Daniel Good Real Prop., 510 U.S. 43, 85 (1993) (Thomas,\nJ., concurring in part and dissenting in part). “One unaware of the history\nof forfeiture laws and 200 years of this Court’s precedent regarding such\nlaws might well assume that such a scheme is lawless—a violation of due\nprocess.” Bennis v. Michigan, 516 U.S. 442, 454 (1996). “This system—where\npolice can seize property with limited judicial oversight and retain it for\ntheir own use—has led to egregious and well-chronicled abuses.” Leonard\n\f6 No. 17-2933\n\n Obviously, vehicle forfeitures are economically painful.\nMany Americans depend on cars for food, school, work, med-\nical treatment, church, relationships, arts, sports, recreation,\nand anything farther away than the ends of their driveways.\nCars extend us. Cars manifest liberty. A person released on\nbond, retaining a presumption of innocence, might suﬀer vir-\ntual imprisonment if he cannot regain his vehicle in time to\ndrive to work.\n The district court did not have a chance to address the\namendments. Given that the record and arguments regarding\nthe amendments are under-developed, we remand this case\nto the district court for further proceedings. See Restoration\nRisk Retention Grp. v. Gutierrez, 880 F.3d 339, 349 (7th Cir. 2018)\n(remanding to district court “to determine the operation and\neﬀect of the amended statute” and to “determine whether the\ncase is moot”); Hager v. Nat’l Union Elec. Co., 854 F.2d 259, 262–\n63 (7th Cir. 1988) (“We believe that the district court ought to\nhave the opportunity to reconsider its decision in light of this\nmost significant pronouncement from the Supreme Court of\nIndiana.”); United States v. Elrod, 627 F.2d 813, 819–20 (7th Cir.\n1980) (remanding to district court given enactment of statute\nduring pendency of appeal).4\n On remand, the district court should address the parties’\ncontentions regarding the amendments. Do the amendments\n\n\nv. Texas, 137 S. Ct. 847, 848 (2017) (Thomas, J., statement respecting denial\nof certiorari).\n 4 The Supreme Court heard argument on Indiana’s forfeiture law and\nthe Eighth Amendment a day before our argument. The Court recently\nissued its opinion, concluding the Fourteenth Amendment incorporates\nthe Eighth Amendment’s ban on excessive fines. Timbs v. Indiana, No. 17-\n1091, 2019 WL 691578, at *2 (U.S. Feb. 20, 2019).\n\fNo. 17-2933 7\n\nameliorate the constitutional problems the district court iden-\ntified? The district court should resolve these contentions to\nthe extent necessary and proper.\n If appropriate, the district court should also revisit the\nclass to determine whether it should be decertified or rede-\nfined in light of the amendments.\n At present, we express no opinion regarding the constitu-\ntionality of the old or new versions of the statute, regarding\nmootness, or regarding the class. Also, our argument sum-\nmaries do not limit the arguments the parties may raise on\nremand. We leave latitude to the district court to conduct fur-\nther proceedings it deems necessary and proper given the\namendments and the parties’ positions. Any review we are\nsubsequently called upon to make will benefit from these pro-\nceedings and the reasoning of the district court.\n III. Conclusion\n We DENY the Prosecutor’s motion to dismiss. We\nREMAND this case to the district court for further proceed-\nings consistent with this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371512/", "author_raw": "Daniel Anthony Manion"}]}	FLAUM	RIPPLE	MANION	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594259/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,302		Leroy Washington v. Marion County Prosecutor	2019-02-26	17-2933	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, RIPPLE, and MANION, Circuit Judges.", "parties": "", "opinions": [{"author": "Daniel Anthony Manion", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2933\nLEROY WASHINGTON, on his own\nbehalf and on behalf of a Class\nof those similarly situated,\n Plaintiff-Appellee,\n\n v.\n\nMARION COUNTY PROSECUTOR,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-02980-JMS-DML — Jane Magnus-Stinson, Chief Judge.\n ____________________\n\n ARGUED NOVEMBER 29, 2018 — DECIDED FEBRUARY 26, 2019\n ____________________\n\n Before FLAUM, RIPPLE, and MANION, Circuit Judges.\n MANION, Circuit Judge. Indianapolis police stopped a car\ndriven and owned by Leroy Washington in September 2016.\nWashington was arrested and ultimately charged with multi-\nple Indiana crimes, including dealing in marijuana. Police\nseized his vehicle for forfeiture. Washington brought a class-\naction constitutional challenge. The district court declared\n\f2 No. 17-2933\n\nIndiana’s vehicle forfeiture statute (I.C. 34-24-1-1(a)(1) read in\nconjunction with other provisions in the same chapter) un-\nconstitutional. The Marion County Prosecutor appealed.\nWhile the appeal pended, Indiana amended the statute. The\nProsecutor argues the amendments fix any constitutional\nproblems, but Washington disagrees. We remand to the dis-\ntrict court to address the amendments.\n I. Background\n Washington was driving a vehicle he owned when an In-\ndianapolis police oﬃcer pulled him over on September 21,\n2016. Washington was arrested and charged with three felo-\nnies: dealing in marijuana, resisting law enforcement, and ob-\nstruction of justice. The oﬃcer had Washington’s vehicle\ntowed and held for forfeiture pursuant to Indiana Code 34-\n24-1-1(a)(1) and 2(a)(1).\n On November 1, 2016, Washington demanded return of\nhis vehicle per I.C. 34-24-1-3. He filed a federal class-action\ncomplaint the next day, claiming the seizures of his vehicle\nand the class’s vehicles under I.C. 34-24-1-2(a)(1) violate the\nFourteenth Amendment’s due process clause. In a clarifying\nbrief requested by the district court, Washington said he chal-\nlenged I.C. 34-24-1-2(a)(1) as applied. But the court construed\nthe challenge as a facial challenge to I.C. 34-24-1-1(a)(1), read\nin conjunction with other provisions of that chapter.\n In early February 2017, the Marion County Prosecutor’s\nOﬃce and the Indianapolis Metropolitan Police Department\nreleased the vehicle to Washington. On February 3, 2017, De-\nfendants moved to dismiss the case as moot given the vehi-\ncle’s return. Later that month, Washington moved for sum-\nmary judgment.\n\fNo. 17-2933 3\n\n On August 18, 2017, the district court certified a class and\ngranted Washington summary judgment. The court declared\nI.C. 34-24-1-1(a)(1) (as read in conjunction with other provi-\nsions of the same chapter) unconstitutional for violating the\ndue process clauses. The court permanently enjoined Defend-\nants from enforcing it. In particular, the court concluded the\nstatutory provisions allowing for seizure and retention of ve-\nhicles without an opportunity for an individual to challenge\npre-forfeiture deprivation are unconstitutional. The Prosecu-\ntor appealed. After the judgment, and while this appeal\npended, Indiana amended its vehicle forfeiture statute.\n The Prosecutor continues to argue on appeal that the old\nversion of the statute did not violate the due process clause.\nThe Prosecutor also argues the new version changed and in-\ncreased the available process, thereby ameliorating any “po-\ntential” due process deficiencies identified by the district\ncourt. For example, the Prosecutor argues the amended stat-\nute provides for a probable cause aﬃdavit, a motion for pro-\nvisional release, and a shortened window for the Prosecutor\nto file a forfeiture complaint. These changes, the argument\ngoes, satisfy the district court’s due process concerns by al-\nlowing a person interested in a vehicle to challenge pre-forfei-\nture deprivation. The Prosecutor moved us to dismiss this\ncase as moot given the statutory amendments.\n But Washington argues the amendments are superficial,\nthe same or similar problems exist, and the statute as\namended remains unconstitutional. He argues, for example,\nthat one new provision sets out a procedure the court already\nheld constitutionally deficient. He argues the court required a\ntimely post-seizure, pre-forfeiture hearing at a minimum, but\nthe amendments do not provide this. He argues the\n\f4 No. 17-2933\n\namendment providing for “provisional release” is meaning-\nless or illusory because the mere filing of a motion by the Pros-\necutor will bar provisional release. He points out that the\namended statute still bars replevin. He argues the statute as\namended prevents a court from asking the core question\n(within an appropriate time): Is there probable cause to be-\nlieve the vehicle owner had some involvement in the wrong-\ndoing? Washington maintains that the statute, before and af-\nter the amendments, does not provide due process. In short,\nhe argues the amendments do not cure the due process defi-\nciency, do not provide any meaningful impact, and do not\nmoot his claim.\n II. Discussion\n The district court concluded Indiana’s statutory provi-\nsions allowing for seizure and retention of vehicles without\nan opportunity to challenge pre-forfeiture deprivation are un-\nconstitutional. Indiana amended the law, but Washington ar-\ngues the amendments do not fix the constitutional problems:\n When an innocent owner’s vehicle is used by a\n third party to commit a crime, the vehicle is\n seized by law enforcement. Because evidence of\n innocent ownership is not considered at the ex\n parte probable cause determination, the Court\n will generally order the vehicle to be held. The\n prosecutor can then file a motion under Indiana\n Code Section 34-24-1-2(j), which prevents provi-\n sional release. The statute does not require any\n expedited process for addressing a motion un-\n der [that section]. As a result, the individual\n loses the ability to have a prompt hearing to\n challenge continued retention of the vehicle.\n\fNo. 17-2933 5\n\n The ability of the State to hold property for an\n extended period of time, while simultaneously\n preventing judicial intervention, creates power-\n ful leverage that can be used to coerce even in-\n nocent owners to buy back their own property\n though a settlement agreement.\n (Appellees’ Br., DE 25 at 36.)\n Scholars chronicle many problems with forfeiture laws.1\nProfessor Crepelle observed that in 2015, law enforcement\ntook more property from Americans than criminals did.2 Jus-\ntice Thomas has expressed skepticism of forfeiture.3\n\n\n\n\n 1 Note, How Crime Pays: The Unconstitutionality of Modern Civil Asset\nForfeiture as a Tool of Criminal Law Enforcement, 131 Harv. L. Rev. 2387\n(2018); Adam Crepelle, Probable Cause to Plunder: Civil Asset Forfeiture and\nthe Problems It Creates, 7 Wake Forest J.L. & Pol’y 315 (2017); Barclay\nThomas Johnson, Note, Restoring Civility—The Civil Asset Forfeiture Reform\nAct of 2000: Baby Steps Towards a More Civilized Civil Forfeiture System, 35\nInd. L. Rev. 1045 (2002); but see Caleb Nelson, The Constitutionality of Civil\nForfeiture, 125 Yale L.J. 2446 (2016) (arguing forfeiture statutes might be\nunfair or unwise, but their central characteristics do not violate the Con-\nstitution).\n 2 Crepelle, supra note 1, at 315.\n 3 “[A]mbitious modern statutes and prosecutorial practices have all\nbut detached themselves from the ancient notion of civil forfeiture … .”\nUnited States v. James Daniel Good Real Prop., 510 U.S. 43, 85 (1993) (Thomas,\nJ., concurring in part and dissenting in part). “One unaware of the history\nof forfeiture laws and 200 years of this Court’s precedent regarding such\nlaws might well assume that such a scheme is lawless—a violation of due\nprocess.” Bennis v. Michigan, 516 U.S. 442, 454 (1996). “This system—where\npolice can seize property with limited judicial oversight and retain it for\ntheir own use—has led to egregious and well-chronicled abuses.” Leonard\n\f6 No. 17-2933\n\n Obviously, vehicle forfeitures are economically painful.\nMany Americans depend on cars for food, school, work, med-\nical treatment, church, relationships, arts, sports, recreation,\nand anything farther away than the ends of their driveways.\nCars extend us. Cars manifest liberty. A person released on\nbond, retaining a presumption of innocence, might suﬀer vir-\ntual imprisonment if he cannot regain his vehicle in time to\ndrive to work.\n The district court did not have a chance to address the\namendments. Given that the record and arguments regarding\nthe amendments are under-developed, we remand this case\nto the district court for further proceedings. See Restoration\nRisk Retention Grp. v. Gutierrez, 880 F.3d 339, 349 (7th Cir. 2018)\n(remanding to district court “to determine the operation and\neﬀect of the amended statute” and to “determine whether the\ncase is moot”); Hager v. Nat’l Union Elec. Co., 854 F.2d 259, 262–\n63 (7th Cir. 1988) (“We believe that the district court ought to\nhave the opportunity to reconsider its decision in light of this\nmost significant pronouncement from the Supreme Court of\nIndiana.”); United States v. Elrod, 627 F.2d 813, 819–20 (7th Cir.\n1980) (remanding to district court given enactment of statute\nduring pendency of appeal).4\n On remand, the district court should address the parties’\ncontentions regarding the amendments. Do the amendments\n\n\nv. Texas, 137 S. Ct. 847, 848 (2017) (Thomas, J., statement respecting denial\nof certiorari).\n 4 The Supreme Court heard argument on Indiana’s forfeiture law and\nthe Eighth Amendment a day before our argument. The Court recently\nissued its opinion, concluding the Fourteenth Amendment incorporates\nthe Eighth Amendment’s ban on excessive fines. Timbs v. Indiana, No. 17-\n1091, 2019 WL 691578, at *2 (U.S. Feb. 20, 2019).\n\fNo. 17-2933 7\n\nameliorate the constitutional problems the district court iden-\ntified? The district court should resolve these contentions to\nthe extent necessary and proper.\n If appropriate, the district court should also revisit the\nclass to determine whether it should be decertified or rede-\nfined in light of the amendments.\n At present, we express no opinion regarding the constitu-\ntionality of the old or new versions of the statute, regarding\nmootness, or regarding the class. Also, our argument sum-\nmaries do not limit the arguments the parties may raise on\nremand. We leave latitude to the district court to conduct fur-\nther proceedings it deems necessary and proper given the\namendments and the parties’ positions. Any review we are\nsubsequently called upon to make will benefit from these pro-\nceedings and the reasoning of the district court.\n III. Conclusion\n We DENY the Prosecutor’s motion to dismiss. We\nREMAND this case to the district court for further proceed-\nings consistent with this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371555/", "author_raw": "Daniel Anthony Manion"}]}	FLAUM	RIPPLE	MANION	1	{"FLAUM": ", Circuit", "RIPPLE": ", Circuit", "MANION": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594302/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,414	Courtney WEBSTER and Brian Webster, Plaintiffs-Appellees, v. CDI INDIANA, LLC, D/B/A CDI, D/B/A CDI Indianapolis, Defendant-Appellant.	Courtney Webster v. CDI Indiana, LLC	2019-02-27	18-3080	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-3080\nCOURTNEY WEBSTER and BRIAN WEBSTER,\n Plaintiffs-Appellees,\n v.\n\nCDI INDIANA, LLC, d/b/a CDI,\nd/b/a CDI INDIANAPOLIS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-02677-JMS-DML — Jane E. Magnus-Stinson, Chief Judge.\n ____________________\n\n ARGUED FEBRUARY 4, 2019 — DECIDED FEBRUARY 27, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and ST. EVE,\nCircuit Judges.\n ST. EVE, Circuit Judge. This medical malpractice lawsuit\narises from a radiologist’s negligence. Courtney Webster had\na CT scan performed at CDI Indiana, LLC’s (CDI) diagnostic\nimaging facility in Carmel, Indiana. The radiologist, an in-\ndependent contractor hired by Medical Scanning Consult-\n\f2 No. 18-3080\n\nants (MSC), missed Courtney’s cancer, which then festered\nfor over a year before being diagnosed.\n Courtney and her husband, Brian Webster, sued CDI.\nCDI, in response, insisted that the Websters could not hold it\nliable because CDI did not directly employ the radiologist.\nThe district court rejected this argument and applied Indi-\nana’s apparent agency holding in Sword v. NKC Hosp., Inc.,\n714 N.E.2d 142, 152 (Ind. 1999), which instructs that a medi-\ncal provider is liable if a patient reasonably relied on its ap-\nparent authority over the wrongdoer. The jury returned a\n$15 million verdict in favor of the Websters. We agree with\nthe district court’s analysis and so we affirm.\n I. Background\n In 2009, Courtney had outpatient surgery for rectal can-\ncer, and by 2010, her medical examinations showed no fur-\nther signs of cancer. A few years later in October 2014,\nCourtney visited her gastroenterologist complaining of con-\nstipation. She underwent a colonoscopy, which revealed a\nlarge mass. The gastroenterologist then referred Courtney\nfor an abdominal and pelvic CT scan. Radiation technolo-\ngists conducted Courtney’s CT scan on November 17, 2014\nat CDI’s Carmel facility, and radiologist Dr. Brian Walker\nissued his report the following day. In his report, Dr. Walker\ndid not identify any mass, despite the images showing a\nmass in the presacral space where Courtney’s rectal cancer\nhad originally occurred.\n Less than two years later, Courtney again complained of\nconstipation. A scope performed in April 2016 revealed a\ntumor, and a CT scan the following week showed that the\ntumor had increased in size since the November 2014 CT\n\fNo. 18-3080 3\n\nscan. By the time the cancerous mass was diagnosed, Court-\nney’s cancer had metastasized to her lungs and liver. The\ndelay in diagnosing Courtney’s recurrent rectal cancer re-\nsulted in a dramatic reduction of her prospects for survival.\n CDI has a network of medical diagnostic imaging facili-\nties throughout the country, including Indiana. Relevant to\nthis appeal, CDI had entered into a services agreement with\nMSC under which MSC provided independent contractor\nradiologists, such as Dr. Walker, to interpret CDI’s imaging\nstudies at CDI’s Carmel facility.\n In October 2016, the Websters filed this medical malprac-\ntice lawsuit against CDI in federal court based on diversity\njurisdiction. That is not the norm for Indiana medical mal-\npractice claims. Typically, such claims fall under Indiana’s\nMedical Malpractice Act (the Act), which limits liability for\nregistered qualified health care providers and requires the\npresentation of a proposed complaint to a medical review\npanel before an action can be commenced in court. Thompson\nv. Cope, 900 F.3d 414, 424 (7th Cir. 2018); McKeen v. Turner, 71\nN.E.3d 833, 834 (Ind. 2017) (per curiam). The Act sets up a\nvoluntary, state-sponsored liability insurance program im-\nposing statutory caps that limit a claimant’s recoverable\ndamages, Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 51\n(Ind. 2013), and provides that Indiana’s Patient Compensa-\ntion Fund will pay amounts in excess of the qualified health\ncare provider’s total liability, Robertson v. B.O., 977 N.E.2d\n341, 343 (Ind. 2012). For a health care provider to be “quali-\nfied” under the Act, it must register with Indiana’s Depart-\nment of Insurance by filing proof of financial responsibility\nand paying an annual surcharge that funds Indiana’s Patient\nCompensation Fund. Atterholt v. Herbst, 902 N.E.2d 220, 222\n\f4 No. 18-3080\n\n(Ind. 2009); Wisniewski v. Bennett, 716 N.E.2d 892, 895 (Ind.\n1999).\n Because CDI had not registered with Indiana’s Depart-\nment of Insurance as a “qualified health care provider” pur-\nsuant to the Act, the Websters sued CDI based on Indiana\nCode § 34-18-3-1. That section states “[a] health care provid-\ner who fails to qualify under this article is not covered by\nthis article and is subject to liability under the law without\nregard to this article. If a health care provider does not quali-\nfy, the patient’s remedy is not affected by this article.” Un-\nlike CDI, both MSC and Dr. Walker had registered as quali-\nfied health care providers under the Act. The Websters,\ntherefore, filed a medical malpractice complaint with the In-\ndiana Department of Insurance against Dr. Walker and MSC.\n After discovery in the CDI litigation, the Websters and\nCDI filed cross-motions for summary judgment under Fed-\neral Rule of Civil Procedure 56(a). In its motion, CDI argued\nthat Dr. Walker was not its apparent agent under Sword be-\ncause CDI did not employ or contract for Dr. Walker’s ser-\nvices, rather MSC did. In a well-reasoned and thorough\nopinion, the district court concluded that the Supreme Court\nof Indiana’s apparent agency holding in Sword applied to the\ncircumstances of this case. Applying Sword’s apparent agen-\ncy standard—which focuses on the principal’s manifesta-\ntions and the patient’s reliance—the district court concluded,\n“[g]iven the nature of health care services today, it is entirely\npossible for a reasonable, prudent patient to conclude from\nrepresentations made by a medical center that the doctors\nand health care professionals that service patients within the\ncenter’s facilities are agents or servants of the center.” Web-\nster v. Ctr. for Diagnostic Imaging, Inc., No. 1:16-cv-02677-JMS-\n\fNo. 18-3080 5\n\nDML, 2017 WL 3839377, at 8 (S.D. Ind. Aug. 31, 2017). The\ndistrict court denied the parties’ summary judgment mo-\ntions because there were “genuine issues of material fact in\ndispute as to whether Dr. Walker was an apparent or osten-\nsible agent of the center” and whether CDI “may be held lia-\nble for any of Dr. Walker’s asserted negligent acts.” Id. at 9.\n The case proceeded to a jury trial, which lasted five days.\nMSC’s medical director testified that CDI was responsible\nfor every aspect of obtaining a patient’s radiological imaging\nstudy except for the actual interpretation of the study itself.\nFurther, the parties jointly stipulated that CDI was responsi-\nble for the training, hiring, employing, supervising, disciplin-\ning, and discharging of the radiation technologists and non-\nphysician personnel at CDI’s Carmel location. They also stipu-\nlated that MSC does business as CDI and that MSC uses the\ntrade name CDI and related trademarks to assist in market-\ning its services as part of a national provider network.\nCourtney testified that she had no idea about the relation-\nships among MSC, CDI, and Dr. Walker and that she was\nnever provided information or written notice about the dif-\nferent entities. Courtney, in fact, believed CDI had provided\nthe health care services in relation to her November 2014 CT\nscan.\n The jury returned a verdict in favor of the Websters, find-\ning CDI vicariously liable for Dr. Walker’s negligent con-\nduct. Further, the jury awarded the Websters a total of $15\nmillion in damages. The district court denied CDI’s post-trial\nmotions, after which CDI appealed, arguing the district\ncourt erred by applying Sword’s apparent agency holding to\nthis case.\n\f6 No. 18-3080\n\n II. Discussion\n Sword is at the heart of this appeal, so we start there. In\nSword, the plaintiffs brought a medical malpractice suit\nagainst a hospital due to the medical negligence of an inde-\npendent contractor anesthesiologist. The parties asked Indi-\nana’s highest court whether a hospital “could be held liable\nfor the alleged negligence of its independent contractor phy-\nsician.” Sword, 714 N.E.2d at 144. The Supreme Court of In-\ndiana answered yes.\n In doing so, the court relied on existing Indiana jurispru-\ndence, as well as the law of other jurisdictions, to adopt the\ndoctrine of apparent agency set forth in the Restatement\n(Second) of Torts § 429 (1965). Id. at 151–52. The Sword court\nspecifically held, “[u]nder Section 429, as we read and con-\nstrue it, a trier of fact must focus on the reasonableness of the\npatient’s belief that the hospital or its employees were ren-\ndering health care.” Id. at 152. The court explained that this\ninquiry involves the “totality of circumstances” based on the\n“actions or inactions of the hospital, as well as any special\nknowledge the patient may have about the hospital’s ar-\nrangements with its physicians.” Id. The Indiana Court of\nAppeals has applied Sword’s holding beyond the hospital\nsetting, including in the context of a health care center or\nclinic. Helms v. Rudicel, 986 N.E.2d 302, 306 (Ind. Ct. App.\n2013).\n On appeal, CDI argues that the district court erred in ap-\nplying Sword because CDI did not hire Dr. Walker as an in-\ndependent contractor. In examining CDI’s argument, “our\nduty is to answer any question of state law in the same way\n(as nearly as we can tell) as the state’s highest court would.”\nNewman v. Metro. Life Ins. Co., 885 F.3d 992, 1000 (7th Cir.\n\fNo. 18-3080 7\n\n2018). Accordingly, we review the district court’s interpreta-\ntion of state law de novo. Salve Regina Coll. v. Russell, 499 U.S.\n225, 231 (1991).\n Sword applies here as the district court properly recog-\nnized. Nothing in Sword’s holding indicates that a health\ncare facility must have a direct employment relationship\nwith an independent contractor physician to be held liable\nfor the acts of its apparent agent. This is especially true given\nthe nature of health care services today. See Sword v. NKC\nHosps., Inc., 661 N.E.2d 10, 14 (Ind. Ct. App. 1996), rev’d on\nother grounds, 714 N.E.2d 142 (Ind. 1999). Accepting CDI’s\ncontrary argument would mean that health care facilities\ncould easily evade liability by using independent contractor\nprofessional organizations to employ physicians. Put differ-\nently, a medical center cannot hold itself out to the public as\noffering health care services—and profit from providing\nthose health care services—yet escape liability by creating a\ncomplex corporate arrangement of interrelated companies.\nWe are hard-pressed to believe Indiana law would favor that\nresult.\n Equally important, CDI’s position conflicts with Sword’s\nexplicit focus on the medical center’s manifestations and the\npatient’s reliance—as opposed to employment contractual\nformalities. As the district court astutely observed, “[i]f any-\nthing, the complicated web of interrelated entities in this\ncase … illustrates the paramount importance of the Sword\nfactors in an increasingly complicated and opaque medical\nenvironment.” Webster, 2017 WL 3839377, at *8. CDI’s argu-\nment that Dr. Walker was an independent contractor hired\nby MSC, therefore, is of no moment unless Courtney was\naware of any such contractual relationship. See Sword, 714\n\f8 No. 18-3080\n\nN.E.2d at 152. She was not; Courtney testified at trial that\nshe had no idea about the contractual relationships among\nMSC, CDI, and Dr. Walker and she was never provided in-\nformation that the physician who would be interpreting her\nCT scan was not subject to CDI’s control or supervision.\n CDI makes other arguments on appeal. CDI asserts, for\nexample, that extending Sword’s vicarious liability principles\nto the facts of this case violates the public policy behind the\nAct because it would expose qualified health care providers,\nlike Dr. Walker, to common law implied indemnity claims in\nexcess of the Act’s statutory $1.25 million damages cap. CDI\nalso argues that “non-negligent” parties, such as CDI,\nshould not be required to pay greater damages than a negli-\ngent party. We need not address these arguments. CDI\nwaived them by withholding them until its post-trial Rule\n50(b) renewed motion for judgment as a matter of law. Andy\nMohr Truck Ctr., Inc. v. Volvo Trucks N. Am., 869 F.3d 598, 604\n(7th Cir. 2017) (“If the court denies the Rule 50(a) motion,\nthat party may renew its earlier motion under Rule 50(b),\nbut it may raise only the grounds it advanced in the pre-\nverdict 50(a) motion.”).\n Furthermore, CDI did not address the district court’s\nwaiver rulings in its opening brief on appeal. So, it has also\nforfeited these arguments. McCleskey v. CWG Plastering, LLC,\n897 F.3d 899, 901 (7th Cir. 2018); Klein v. O’Brien, 884 F.3d\n754, 757 (7th Cir. 2018). 1\n\n\n\n 1Although CDI filed a post-trial Rule 59 motion for remittitur, on\nappeal, its discussion of damages is intertwined with its forfeited argu-\nments.\n\fNo. 18-3080 9\n\n On a final note, because there is no genuine uncertainty\nabout the question of state law that CDI presents on appeal,\nwe decline to certify CDI’s proposed questions to the Su-\npreme Court of Indiana pursuant to Circuit Rule 52(a). In re\nZimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746,\n754 (7th Cir. 2018).\n We AFFIRM the district court’s judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371667/", "author_raw": "ST. EVE, Circuit Judge"}]}	WOOD	EASTERBROOK	ST EVE	1	{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594414/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,555		Courtney Webster v. CDI Indiana, LLC	2019-02-27	18-3080	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-3080\nCOURTNEY WEBSTER and BRIAN WEBSTER,\n Plaintiffs-Appellees,\n v.\n\nCDI INDIANA, LLC, d/b/a CDI,\nd/b/a CDI INDIANAPOLIS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-02677-JMS-DML — Jane E. Magnus-Stinson, Chief Judge.\n ____________________\n\n ARGUED FEBRUARY 4, 2019 — DECIDED FEBRUARY 27, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and ST. EVE,\nCircuit Judges.\n ST. EVE, Circuit Judge. This medical malpractice lawsuit\narises from a radiologist’s negligence. Courtney Webster had\na CT scan performed at CDI Indiana, LLC’s (CDI) diagnostic\nimaging facility in Carmel, Indiana. The radiologist, an in-\ndependent contractor hired by Medical Scanning Consult-\n\f2 No. 18-3080\n\nants (MSC), missed Courtney’s cancer, which then festered\nfor over a year before being diagnosed.\n Courtney and her husband, Brian Webster, sued CDI.\nCDI, in response, insisted that the Websters could not hold it\nliable because CDI did not directly employ the radiologist.\nThe district court rejected this argument and applied Indi-\nana’s apparent agency holding in Sword v. NKC Hosp., Inc.,\n714 N.E.2d 142, 152 (Ind. 1999), which instructs that a medi-\ncal provider is liable if a patient reasonably relied on its ap-\nparent authority over the wrongdoer. The jury returned a\n$15 million verdict in favor of the Websters. We agree with\nthe district court’s analysis and so we affirm.\n I. Background\n In 2009, Courtney had outpatient surgery for rectal can-\ncer, and by 2010, her medical examinations showed no fur-\nther signs of cancer. A few years later in October 2014,\nCourtney visited her gastroenterologist complaining of con-\nstipation. She underwent a colonoscopy, which revealed a\nlarge mass. The gastroenterologist then referred Courtney\nfor an abdominal and pelvic CT scan. Radiation technolo-\ngists conducted Courtney’s CT scan on November 17, 2014\nat CDI’s Carmel facility, and radiologist Dr. Brian Walker\nissued his report the following day. In his report, Dr. Walker\ndid not identify any mass, despite the images showing a\nmass in the presacral space where Courtney’s rectal cancer\nhad originally occurred.\n Less than two years later, Courtney again complained of\nconstipation. A scope performed in April 2016 revealed a\ntumor, and a CT scan the following week showed that the\ntumor had increased in size since the November 2014 CT\n\fNo. 18-3080 3\n\nscan. By the time the cancerous mass was diagnosed, Court-\nney’s cancer had metastasized to her lungs and liver. The\ndelay in diagnosing Courtney’s recurrent rectal cancer re-\nsulted in a dramatic reduction of her prospects for survival.\n CDI has a network of medical diagnostic imaging facili-\nties throughout the country, including Indiana. Relevant to\nthis appeal, CDI had entered into a services agreement with\nMSC under which MSC provided independent contractor\nradiologists, such as Dr. Walker, to interpret CDI’s imaging\nstudies at CDI’s Carmel facility.\n In October 2016, the Websters filed this medical malprac-\ntice lawsuit against CDI in federal court based on diversity\njurisdiction. That is not the norm for Indiana medical mal-\npractice claims. Typically, such claims fall under Indiana’s\nMedical Malpractice Act (the Act), which limits liability for\nregistered qualified health care providers and requires the\npresentation of a proposed complaint to a medical review\npanel before an action can be commenced in court. Thompson\nv. Cope, 900 F.3d 414, 424 (7th Cir. 2018); McKeen v. Turner, 71\nN.E.3d 833, 834 (Ind. 2017) (per curiam). The Act sets up a\nvoluntary, state-sponsored liability insurance program im-\nposing statutory caps that limit a claimant’s recoverable\ndamages, Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 51\n(Ind. 2013), and provides that Indiana’s Patient Compensa-\ntion Fund will pay amounts in excess of the qualified health\ncare provider’s total liability, Robertson v. B.O., 977 N.E.2d\n341, 343 (Ind. 2012). For a health care provider to be “quali-\nfied” under the Act, it must register with Indiana’s Depart-\nment of Insurance by filing proof of financial responsibility\nand paying an annual surcharge that funds Indiana’s Patient\nCompensation Fund. Atterholt v. Herbst, 902 N.E.2d 220, 222\n\f4 No. 18-3080\n\n(Ind. 2009); Wisniewski v. Bennett, 716 N.E.2d 892, 895 (Ind.\n1999).\n Because CDI had not registered with Indiana’s Depart-\nment of Insurance as a “qualified health care provider” pur-\nsuant to the Act, the Websters sued CDI based on Indiana\nCode § 34-18-3-1. That section states “[a] health care provid-\ner who fails to qualify under this article is not covered by\nthis article and is subject to liability under the law without\nregard to this article. If a health care provider does not quali-\nfy, the patient’s remedy is not affected by this article.” Un-\nlike CDI, both MSC and Dr. Walker had registered as quali-\nfied health care providers under the Act. The Websters,\ntherefore, filed a medical malpractice complaint with the In-\ndiana Department of Insurance against Dr. Walker and MSC.\n After discovery in the CDI litigation, the Websters and\nCDI filed cross-motions for summary judgment under Fed-\neral Rule of Civil Procedure 56(a). In its motion, CDI argued\nthat Dr. Walker was not its apparent agent under Sword be-\ncause CDI did not employ or contract for Dr. Walker’s ser-\nvices, rather MSC did. In a well-reasoned and thorough\nopinion, the district court concluded that the Supreme Court\nof Indiana’s apparent agency holding in Sword applied to the\ncircumstances of this case. Applying Sword’s apparent agen-\ncy standard—which focuses on the principal’s manifesta-\ntions and the patient’s reliance—the district court concluded,\n“[g]iven the nature of health care services today, it is entirely\npossible for a reasonable, prudent patient to conclude from\nrepresentations made by a medical center that the doctors\nand health care professionals that service patients within the\ncenter’s facilities are agents or servants of the center.” Web-\nster v. Ctr. for Diagnostic Imaging, Inc., No. 1:16-cv-02677-JMS-\n\fNo. 18-3080 5\n\nDML, 2017 WL 3839377, at 8 (S.D. Ind. Aug. 31, 2017). The\ndistrict court denied the parties’ summary judgment mo-\ntions because there were “genuine issues of material fact in\ndispute as to whether Dr. Walker was an apparent or osten-\nsible agent of the center” and whether CDI “may be held lia-\nble for any of Dr. Walker’s asserted negligent acts.” Id. at 9.\n The case proceeded to a jury trial, which lasted five days.\nMSC’s medical director testified that CDI was responsible\nfor every aspect of obtaining a patient’s radiological imaging\nstudy except for the actual interpretation of the study itself.\nFurther, the parties jointly stipulated that CDI was responsi-\nble for the training, hiring, employing, supervising, disciplin-\ning, and discharging of the radiation technologists and non-\nphysician personnel at CDI’s Carmel location. They also stipu-\nlated that MSC does business as CDI and that MSC uses the\ntrade name CDI and related trademarks to assist in market-\ning its services as part of a national provider network.\nCourtney testified that she had no idea about the relation-\nships among MSC, CDI, and Dr. Walker and that she was\nnever provided information or written notice about the dif-\nferent entities. Courtney, in fact, believed CDI had provided\nthe health care services in relation to her November 2014 CT\nscan.\n The jury returned a verdict in favor of the Websters, find-\ning CDI vicariously liable for Dr. Walker’s negligent con-\nduct. Further, the jury awarded the Websters a total of $15\nmillion in damages. The district court denied CDI’s post-trial\nmotions, after which CDI appealed, arguing the district\ncourt erred by applying Sword’s apparent agency holding to\nthis case.\n\f6 No. 18-3080\n\n II. Discussion\n Sword is at the heart of this appeal, so we start there. In\nSword, the plaintiffs brought a medical malpractice suit\nagainst a hospital due to the medical negligence of an inde-\npendent contractor anesthesiologist. The parties asked Indi-\nana’s highest court whether a hospital “could be held liable\nfor the alleged negligence of its independent contractor phy-\nsician.” Sword, 714 N.E.2d at 144. The Supreme Court of In-\ndiana answered yes.\n In doing so, the court relied on existing Indiana jurispru-\ndence, as well as the law of other jurisdictions, to adopt the\ndoctrine of apparent agency set forth in the Restatement\n(Second) of Torts § 429 (1965). Id. at 151–52. The Sword court\nspecifically held, “[u]nder Section 429, as we read and con-\nstrue it, a trier of fact must focus on the reasonableness of the\npatient’s belief that the hospital or its employees were ren-\ndering health care.” Id. at 152. The court explained that this\ninquiry involves the “totality of circumstances” based on the\n“actions or inactions of the hospital, as well as any special\nknowledge the patient may have about the hospital’s ar-\nrangements with its physicians.” Id. The Indiana Court of\nAppeals has applied Sword’s holding beyond the hospital\nsetting, including in the context of a health care center or\nclinic. Helms v. Rudicel, 986 N.E.2d 302, 306 (Ind. Ct. App.\n2013).\n On appeal, CDI argues that the district court erred in ap-\nplying Sword because CDI did not hire Dr. Walker as an in-\ndependent contractor. In examining CDI’s argument, “our\nduty is to answer any question of state law in the same way\n(as nearly as we can tell) as the state’s highest court would.”\nNewman v. Metro. Life Ins. Co., 885 F.3d 992, 1000 (7th Cir.\n\fNo. 18-3080 7\n\n2018). Accordingly, we review the district court’s interpreta-\ntion of state law de novo. Salve Regina Coll. v. Russell, 499 U.S.\n225, 231 (1991).\n Sword applies here as the district court properly recog-\nnized. Nothing in Sword’s holding indicates that a health\ncare facility must have a direct employment relationship\nwith an independent contractor physician to be held liable\nfor the acts of its apparent agent. This is especially true given\nthe nature of health care services today. See Sword v. NKC\nHosps., Inc., 661 N.E.2d 10, 14 (Ind. Ct. App. 1996), rev’d on\nother grounds, 714 N.E.2d 142 (Ind. 1999). Accepting CDI’s\ncontrary argument would mean that health care facilities\ncould easily evade liability by using independent contractor\nprofessional organizations to employ physicians. Put differ-\nently, a medical center cannot hold itself out to the public as\noffering health care services—and profit from providing\nthose health care services—yet escape liability by creating a\ncomplex corporate arrangement of interrelated companies.\nWe are hard-pressed to believe Indiana law would favor that\nresult.\n Equally important, CDI’s position conflicts with Sword’s\nexplicit focus on the medical center’s manifestations and the\npatient’s reliance—as opposed to employment contractual\nformalities. As the district court astutely observed, “[i]f any-\nthing, the complicated web of interrelated entities in this\ncase … illustrates the paramount importance of the Sword\nfactors in an increasingly complicated and opaque medical\nenvironment.” Webster, 2017 WL 3839377, at *8. CDI’s argu-\nment that Dr. Walker was an independent contractor hired\nby MSC, therefore, is of no moment unless Courtney was\naware of any such contractual relationship. See Sword, 714\n\f8 No. 18-3080\n\nN.E.2d at 152. She was not; Courtney testified at trial that\nshe had no idea about the contractual relationships among\nMSC, CDI, and Dr. Walker and she was never provided in-\nformation that the physician who would be interpreting her\nCT scan was not subject to CDI’s control or supervision.\n CDI makes other arguments on appeal. CDI asserts, for\nexample, that extending Sword’s vicarious liability principles\nto the facts of this case violates the public policy behind the\nAct because it would expose qualified health care providers,\nlike Dr. Walker, to common law implied indemnity claims in\nexcess of the Act’s statutory $1.25 million damages cap. CDI\nalso argues that “non-negligent” parties, such as CDI,\nshould not be required to pay greater damages than a negli-\ngent party. We need not address these arguments. CDI\nwaived them by withholding them until its post-trial Rule\n50(b) renewed motion for judgment as a matter of law. Andy\nMohr Truck Ctr., Inc. v. Volvo Trucks N. Am., 869 F.3d 598, 604\n(7th Cir. 2017) (“If the court denies the Rule 50(a) motion,\nthat party may renew its earlier motion under Rule 50(b),\nbut it may raise only the grounds it advanced in the pre-\nverdict 50(a) motion.”).\n Furthermore, CDI did not address the district court’s\nwaiver rulings in its opening brief on appeal. So, it has also\nforfeited these arguments. McCleskey v. CWG Plastering, LLC,\n897 F.3d 899, 901 (7th Cir. 2018); Klein v. O’Brien, 884 F.3d\n754, 757 (7th Cir. 2018). 1\n\n\n\n 1Although CDI filed a post-trial Rule 59 motion for remittitur, on\nappeal, its discussion of damages is intertwined with its forfeited argu-\nments.\n\fNo. 18-3080 9\n\n On a final note, because there is no genuine uncertainty\nabout the question of state law that CDI presents on appeal,\nwe decline to certify CDI’s proposed questions to the Su-\npreme Court of Indiana pursuant to Circuit Rule 52(a). In re\nZimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746,\n754 (7th Cir. 2018).\n We AFFIRM the district court’s judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371808/", "author_raw": "ST. EVE, Circuit Judge"}]}	WOOD	EASTERBROOK	ST EVE	1	{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594555/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,595,103		David Jones v. Dushan Zatecky	2019-02-28	17-2606	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and MANION and ROVNER, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2606\nDAVID M. JONES,\n Petitioner-Appellant,\n v.\n\nDUSHAN ZATECKY, Warden,\nPendleton Correctional Facility,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-1393-RLY-DML—Richard L. Young, Judge.\n ____________________\n\n ARGUED NOVEMBER 1, 2018 — DECIDED FEBRUARY 28, 2019\n ____________________\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Cir-\ncuit Judges.\n WOOD, Chief Judge. At the time of David Jones’s arrest and\nprosecution in 2005, Ind. Code § 35-34-1-5 (1982) identified\nan “omnibus date” and allowed prosecutors to make sub-\nstantive amendments to pending charges only up to 30 days\n\n2 No. 17-2606\n\nbefore the omnibus date. 1 Seven years earlier, in a case called\nHaak v. State, 695 N.E.2d 944, 951 (Ind. 1998), the Indiana Su-\npreme Court had confirmed the strict nature of this deadline.\nDisregarding this rule, in Jones’s case the state moved nine\ndays after the omnibus date to amend the charging instru-\nment to add a new and highly consequential charge of crim-\ninal confinement. Jones’s attorney did not object to this un-\ntimely amendment, and Jones was ultimately convicted of\nthe confinement charge.\n According to the state, there is nothing unique about\nJones’s case. It tells us that defense attorneys around Indiana\nroutinely ignored both the clear text of the statute and the\nHaak decision and allowed prosecutors to make untimely\namendments. If that is an accurate account, it is hardly reas-\nsuring. For a lawyer to fail to take advantage of a clear ave-\nnue of relief for her client is no less concerning because many\nothers made the same error—if anything, it is more so.\n We have seen this problem before. See Shaw v. Wilson, 721\nF.3d 908, 911 (7th Cir. 2013). We held in Shaw that following\nthe crowd is no excuse for depriving a criminal defendant of\nhis constitutional right to the effective assistance of counsel.\nId. at 917. We accordingly held that Shaw was entitled to the\nissuance of a writ of habeas corpus under 28 U.S.C. § 2254,\nbased on his attorney’s failure to object to an untimely\namendment to his charges under the same Indiana law now\n\n\n 1 Indiana amended this statute four months after the Indiana Su-\npreme Court applied it in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). See\nAct of May 8, 2007, P.L. 178-2007 § 1, 2007 Ind. Legis. Serv. (West) (codi-\nfied as amended at Ind. Code § 35-34-1-5 (2014)). The amendment is not\nretroactive and thus has no effect on Jones’s case.\n\nNo. 17-2606 3\n\nbefore us. Id. at 910. We conclude that Jones is entitled to the\nsame relief.\n I\n Jones was convicted of crimes tied to two incidents of do-\nmestic violence in 2005. In the first, he attacked his partner\nand was charged with battery; in the second, he threatened\nher and was charged (under a separate docket number) with\nintimidation and being a habitual offender. The trial court set\na joint omnibus date for both cases of October 18, 2005. Nine\ndays after that date, the state moved to amend the infor-\nmation in the battery case to add a charge of criminal con-\nfinement. (We refer to this as the First Amendment.) As we\nnoted, Jones’s attorney let this pass without objection, and\nthe court granted the state’s motion without a hearing. Then\nin January 2006, the state moved to amend the charge in the\nintimidation case to add the language “or engage in conduct\nagainst her will.” (This is the Second Amendment.) A few\nmonths later Jones’s new attorney filed a motion to dismiss\nthe amended information in the intimidation case, but the\ntrial court denied the motion.\n The cases were consolidated for trial, by which time Jones\nhad yet another attorney. On the first day of trial, the state\nmoved to amend the information for the criminal-confine-\nment charge (i.e. the battery case) again, this time to add the\nlanguage “and/or extreme pain.” Jones’s attorney objected,\nbut the court overruled him and allowed the amendment.\n(This was the Third Amendment.) The jury found Jones\nguilty of all three charges (battery, criminal confinement, and\nintimidation). He was sentenced to concurrent terms of 20\nyears for criminal confinement, enhanced by 25 years for be-\ning a habitual offender; eight years for battery resulting in\n\n4 No. 17-2606\n\nserious bodily injury; and three years for intimidation. Later\nthe trial court on its own motion reduced the battery convic-\ntion to a class B misdemeanor and reduced that sentence to\nsix months because of double-jeopardy concerns.\n On direct review, Jones argued that the trial court erred\nwhen it allowed the First Amendment in violation of Ind.\nCode § 35-34-1-5. The Indiana Court of Appeals rejected that\nargument on waiver grounds, because of counsel’s failure to\nobject. Jones v. State, 876 N.E.2d 389, 2007 WL 3287457, at 4\n(Ind. Ct. App. 2007) (unpublished table decision) (Jones I),\ntransfer denied, 891 N.E.2d 35 (Ind. 2008). His state-court pe-\ntition for post-conviction relief was also unsuccessful. Jones\nv. State, 46 N.E.3d 501, 2016 WL 359276, at 2–3 (Ind. Ct. App.\n2016) (Jones II) (unpublished table decision), transfer denied,\n49 N.E.3d 107 (Ind. 2016).\n After exhausting his state-court remedies, Jones filed a\npro se habeas corpus petition in federal court under 28 U.S.C.\n§ 2254. In it, he argues that his first lawyer’s failure to object\nto the untimely First Amendment amounted to ineffective as-\nsistance of counsel, and that the failure of the state courts to\ngrant him relief on that ground “involved an unreasonable\napplication of … clearly established Federal law, as deter-\nmined by the Supreme Court of the United States.” 28 U.S.C.\n§ 2254(d)(1). We review the district court’s decision to deny\na petition under section 2254 de novo, but the standard we\napply is one under which relief is possible only if the state\ncourt’s determination was objectively unreasonable. Virginia\nv. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (great deference is due\nto state-court determination, and standard for granting relief\nunder section 2254 is meant to be a difficult one); McNary v.\nLemke, 708 F.3d 905, 914 (7th Cir. 2013).\n\nNo. 17-2606 5\n\n The district court denied Jones’s petition and dismissed\nhis case with prejudice. It also denied a certificate of appeal-\nability, but we issued one based on Shaw. Before this court\n(now represented by recruited counsel, whom we thank),\nJones argues only that his attorney’s failure to object to the\nFirst Amendment, which added the criminal-confinement\ncharge that accounts for the lion’s share of his sentence, vio-\nlated his Sixth Amendment right to effective assistance of\ncounsel.\n II\n The version of Ind. Code § 35-34-1-5 in effect during\nJones’s prosecution forbade amendments of substance after\n30 days before the omnibus date. In Haak, Indiana’s highest\ncourt held that untimely amendments were “impermissible”\nif they were amendments of “substance,” and that the other\nprocedures in Indiana law allowing prosecutors to make\npost-omnibus amendments applied only to amendments of\n“form.” Id. Shortly after Jones’s conviction, another defend-\nant who did object to an untimely amendment had his con-\nviction reversed by the Indiana Supreme Court in Fajardo v.\nState, 859 N.E.2d 1201, 1202 (Ind. 2007). Jones argues, in es-\nsence, that his case should have been Fajardo, and would\nhave been if counsel had lodged a timely objection. 2\n\n\n\n 2 The fact that the defendant in Fajardo won the reversal of his con-\n\nviction on the improperly added charge and resentencing persuades us\nthat this is not simply a matter of paper-shuffling for Jones. The Indiana\nSupreme Court unanimously disposed of Fajardo as follows: “Because the\ntrial court’s sentencing determination for Count 1 may have been sub-\nstantially affected by the sentence determination for Count 2, we remand\nto the trial court for a new sentencing determination.” 859 N.E.2d at 1209.\n\n6 No. 17-2606\n\nCounsel’s failure to do so, he contends, was both defective\nperformance and highly prejudicial.\n A Sixth Amendment claim of ineffectiveness of counsel\ncan be predicated on an attorney’s failure to raise a state-law\nissue in a state-court proceeding. McNary, 708 F.3d at 920. We\nlook to state law in our evaluation of such a claim. George v.\nSmith, 586 F.3d 479, 483–84 (7th Cir. 2009). This focus on state\nlaw does not prevent us from considering the attorney’s fail-\nure to raise an obvious argument. McNary, 708 F.3d at 920.\nThat is because we are assessing counsel’s performance, and\nthat assessment proceeds against the backdrop of whatever\nthe state says its law is. We then apply the standards of Strick-\nland v. Washington, 466 U.S. 668 (1984), to determine whether\ncounsel’s assistance met constitutional standards. That re-\nquires us to determine whether counsel’s actions fell below\nthe constitutional minimum and whether there is a reasona-\nble probability that, but for counsel’s errors, the outcome\nwould have been different. Id. at 689.\n Shaw presented almost the identical situation for our re-\nview. 721 F.3d at 910. At the time of Shaw’s conviction, the\nsame Indiana law was in effect, and the state similarly\namended the information to add a more serious charge\nagainst Shaw after his omnibus date had passed. Shaw’s trial\ncounsel objected to the amendment, but the trial court ruled\nagainst him. Shaw’s appellate attorney declined to pursue\nthis point on appeal, choosing instead to make a near-frivo-\nlous argument about the sufficiency of the evidence. Id. at\n912.\n\n\nHad Jones’s attorney rendered adequate assistance, he would have been\nentitled to the same treatment.\n\nNo. 17-2606 7\n\n When Shaw reached this court, the state made the same\narguments against a finding of ineffective assistance of coun-\nsel that it is making in Jones’s case. We were not persuaded.\nWe found irrelevant the fact that no Indiana appellate court\nhad previously invalidated an untimely amendment at the\ntime of Shaw’s conviction—for all we knew, the trial courts\nwere policing this rule on their own. There could be no\ndoubt, we thought, that the combination of the terms of the\nstatute and Haak made this argument available for responsi-\nble counsel. Id. at 916. We also rejected the state’s attempt to\nportray the facts as unfairly requiring counsel to predict a\nchange in the law, for the simple reason that nothing had\nchanged. Id. at 916–17. And we held that the possibility of\nadditional time to prepare for trial did not alleviate any po-\ntential prejudice, since dismissal was a real possibility under\nexisting law. Id. at 918.\n Jones, like Shaw, had a strong argument for dismissing\none of the charges against him, yet his trial attorney did not\npursue it. The state suggests that Haak was widely ignored\nby defense counsel, but we have no hard data to back up that\nimpression. We are loath to say that an attorney’s failure to\nheed the specific direction of the Indiana Supreme Court and\nthe plain text of Indiana law is excusable. To the contrary,\nthat action falls “outside the wide range of professionally\ncompetent assistance” required by the Sixth Amendment.\nStrickland, 466 U.S. at 690. As in Shaw, this feature of Indiana\nlaw created a real opportunity for Jones’s defense, but coun-\nsel let it slip away. Fajardo and its aftermath show that this\nopportunity did not dissipate until years after Jones’s trial.\nWe conclude that this was one of those rare cases in which\n“counsel’s performance fell below the constitutional mini-\nmum, and that the Indiana appellate court’s conclusion\n\n8 No. 17-2606\n\notherwise was an unreasonable application of Supreme\nCourt precedent.” Shaw, 721 F.3d at 915. 3\n That leaves the question of prejudice. The facts here speak\nfor themselves on that point. It is easy to find a reasonable\nprobability that counsel’s error prejudiced Jones. As we\nnoted in Shaw:\n\n\n\n\n 3 The dissent suggests that we are giving inadequate deference to the\n\nstate court’s decision in Jones’s own case. We respectfully disagree. Lim-\nited though our role in habeas corpus cases may be, it is not meaningless.\nWhile the bar for a successful claim pursuant to 28 U.S.C. § 2254 is high\nand issuance of the writ is rare, some cases clear those hurdles, and we\nare not free to read the statute out of the books. The Supreme Court on a\nsignificant number of occasions post-AEPDA has held a state prisoner\nwas entitled to habeas corpus relief under 28 U.S.C. § 2254(d)(1) because\nthe state court’s decision was contrary to, or involved an unreasonable\napplication of, clearly established law. See Williams v. Taylor, 529 U.S. 362\n(2000) (right to effective assistance of counsel as required by Strickland,\n466 U.S. 668); Wiggins v. Smith, 539 U.S. 510 (2003) (right to effective as-\nsistance of counsel as required by Strickland, 466 U.S. 668); Rompilla v.\nBeard, 545 U.S. 374 (2005) (right to effective assistance of counsel as re-\nquired by Strickland, 466 U.S. 668); Abdul-Kabir v. Quarterman, 550 U.S. 233\n(2007) (right to present mitigation evidence to sentencing jury as required\nby Penry v. Lynaugh, 492 U.S. 302 (1989)); Panetti v. Quarterman, 551 U.S.\n930, 953 (2007) (right to present arguments showing incompetency to be\nexecuted, as required by Ford v. Wainwright, 477 U.S. 399 (1986)); Brewer\nv. Quarterman, 550 U.S. 286 (2007) (right to present mitigation evidence to\nsentencing jury as required by Penry, 492 U.S. 302); Lafler v. Cooper, 566\nU.S. 156, 173 (2012) (right to effective assistance of counsel as required by\nStrickland, 466 U.S. 668); McWilliams v. Dunn, 137 S. Ct. 1790 (2017) (right\nto mental health expert as required by Ake v. Oklahoma, 470 U.S. 68\n(1985)). These cases show that each case must be assessed on its own, and\nthat we continue to have the duty to correct a misapplication of clearly\nestablished federal law when that error meets the statutory standards.\n\nNo. 17-2606 9\n\n Prejudice exists, however, if counsel bypassed a non-\n frivolous argument that, if successful, would have re-\n sulted in the vacation of Shaw’s conviction (just as the\n conviction in Fajardo later was). If one is entitled to a\n dismissal, a continuance is no comfort. And when eval-\n uating prejudice, unlike when evaluating attorney per-\n formance, hindsight is permissible. ... This means that\n the Indiana Supreme Court’s ultimate decision in Fa-\n jardo is relevant to whether the argument [the lawyer]\n jettisoned was both nonfrivolous and stronger than the\n sufficiency argument he presented.\nId. at 918. Hindsight in Jones’s case tells us that his attorney’s\nsilence doomed his appeal. On direct appeal, the Indiana\nCourt of Appeals agreed that the First Amendment “was\nmade in violation of Indiana Code Section 35-34-1-5(b).”\nJones I, 2007 WL 3287457, at 3. In other words, what killed\nthe argument in that court was waiver, not lack of merit. As\nthe court put it, “[Jones] did not object to the amendment on\nthe same grounds to the trial court … [and thus] [t]he issue\nis waived.” Id. at 3–4.\n Indiana’s efforts to distinguish Shaw fall flat. Jones’s case\ndoes not require us to resolve any question of state law; it\ndemands only the application of the state’s statutes, as inter-\npreted by Indiana’s highest court. When addressing Jones’s\nlawyer’s failure to object to the untimely substantive amend-\nment, we need ask only whether raising the issue “had a bet-\nter than fighting chance at the time.” Shaw, 721 F.3d at 916. It\ndid. As we said in Shaw, “a competent lawyer in Indiana\nshould have recognized that there was a state statute under\nwhich relief for his client was possible and would have pur-\nsued that theory.” Id. at 914.\n\n10 No. 17-2606\n\n III\n Adhering to Shaw, we thus VACATE the district court’s de-\ncision to deny Jones’s petition for a writ of habeas corpus and\nREMAND with instructions to issue the writ within 120 days\nwith respect to his conviction for criminal confinement only\nand to make any necessary adjustments in his sentence on\nthe two unchallenged counts of conviction.\n\nNo. 17-2606 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372356/", "author_raw": "Diane Pamela Wood"}, {"author": "MANION, Circuit Judge, dissenting", "type": "dissent", "text": "MANION, Circuit Judge, dissenting. The ultimate question\nin this case is whether the Indiana Court of Appeals unrea-\nsonably applied federal law when it determined David\nJones’s counsel was not ineffective for failing to make a mo-\ntion that approximately twenty years of Indiana case law told\nhim would not be successful. The court says it was unreason-\nable. I disagree. While a reasonable person could find “coun-\nsel made errors so serious that counsel was not functioning as\n‘counsel’ guaranteed the defendant by the Sixth Amend-\nment,” Strickland v. Washington, 466 U.S. 668, 687 (1984), “fair-\nminded jurists could disagree” whether that is the only rea-\nsonable conclusion, see Harrington v. Richter, 562 U.S. 86, 102\n(2011). Accordingly, I respectfully dissent.\n This case concerns a petition for a writ of habeas corpus\nbrought by an Indiana prisoner, so we apply the highly def-\nerential standard of the Anti-Terrorism and Effective Death\nPenalty Act. See 28 U.S.C. § 2254(d). Under that standard, we\nask only if the last state court to adjudicate the prisoner’s\nclaim rendered “a decision that was contrary to, or involved\nan unreasonable application of, clearly established Federal\nlaw, as determined by the Supreme Court of the United\nStates; or…that was based on an unreasonable determination\nof the facts in light of the evidence presented in the State court\nproceeding.” Id.\n Here, the question is whether the Indiana Court of Ap-\npeals unreasonably applied the rule from Strickland, which is\n“the Supreme Court’s clearly established precedent” concern-\ning ineffective assistance of counsel. Weaver v. Nicholson, 892\nF.3d 878, 884 (7th Cir. 2018). Critically, “an unreasonable appli-\ncation of federal law is different from an incorrect application\nof federal law.” Harrington, 562 U.S. at 101 (quoting Williams\n\n12 No. 17-2606\n\nv. Taylor, 529 U.S. 362, 410 (2000)). In the realm of ineffective\nassistance, this means that a federal court should not grant a\nwrit of habeas corpus even if “the state-court decision may be\ncontrary to the federal court’s conception of how Strickland\nought to be applied in that particular case” so long as “the\ndecision is not ‘mutually opposed’ to Strickland itself.” Wil-\nliams, 529 U.S. at 406. The state court must have reached a de-\ncision “lying well outside the boundaries of permissible dif-\nferences of opinion,” not just one with which the federal court\ndisagrees. Burgess v. Watters, 467 F.3d 676, 681 (7th Cir. 2006)\n(quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).\nWith those guiding principles in mind, the facts of this case\ncompel the conclusion the Indiana Court of Appeals’ decision\nmay have been incorrect, but it was not unreasonable.\n At the time of Jones’s prosecution, the state of Indiana law\nconcerning the amendment of charging documents was con-\nfused. The Indiana Code plainly allowed substantive amend-\nments in felony cases to be made only “up to…thirty (30)\ndays…before the omnibus date,” I.C. § 35-34-1-5(b) (1982),\nand the Indiana Supreme Court had affirmed as much in Haak\nv. State, 695 N.E.2d 944, 951 (Ind. 1998) (“Pursuant to subsec-\ntion (b), [amendments of substance]…may not occur after\nspecified times in advance of the omnibus date.”). But at the\nsame time, the Indiana Court of Appeals consistently ren-\ndered decisions allowing late substantive amendments to\ncharging instruments so long as the defendant had adequate\ntime to prepare for trial. See, e.g., Laughner v. State, 769 N.E.2d\n1147, 1158 (Ind. Ct. App. 2002) (declining to address whether\nan amendment was substantive because, “[a]s a general rule\nany information may be amended at any time before, during,\nor after trial as long as the amendment does not prejudice the\nsubstantial rights of the defendant” (alteration in original)\n\nNo. 17-2606 13\n\n(quoting Hegg v. State, 514 N.E.2d 1061, 1063 (Ind. 1987))); see\nalso Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008) (“For\nover twenty years…case law regularly permitted amend-\nments related to matters of substance as long as the substan-\ntial rights of the defendant were not prejudiced, regardless of\nwhether the amendments were untimely under I.C. § 35-34-1-\n5(b).”). The Supreme Court of Indiana likewise blurred the\npicture. See Fajardo v. State, 859 N.E.2d 1201, 1206–07 (Ind.\n2007) (collecting cases and noting “[t]he methodology em-\nployed in the cases identified…does not comply with Indiana\nCode § 35-34-1-5”).\n Given this state of affairs, the Indiana Court of Appeals\nconcluded Jones’s counsel was not constitutionally deficient\nfor failing to move to dismiss the untimely amendment. Jones\nhad over ten months before trial, so the amendment did not\nprejudice the preparation of his defense. No Indiana appellate\ncourt had ever disallowed an amendment to a charging instru-\nment under those circumstances. Therefore, the court con-\ncluded a reasonable practitioner could make a tactical deci-\nsion not to pursue a motion to dismiss when the case law told\n 1\nhim it would fail. That was not unreasonable.\n\n\n 1\n I take issue with the court’s portrayal of the state’s argument on\nthis point. The court’s opinion says, “[The state] tells us that defense at-\ntorneys around Indiana routinely ignored both the clear text of the stat-\nute and the Haak decision and allowed prosecutors to make untimely\namendments.” Maj. Op. at 2. What the state actually argued was that rea-\nsonable attorneys would pay attention to and follow decisions coming\nfrom the appellate court. Indeed, it is not even the case that no lawyers\nwere making these challenges. Shaw v. Wilson, 721 F.3d 908, 916 (7th Cir.\n2013) (commenting “that dozens of similar (though unsuccessful) chal-\nlenges were documented in published opinions” (emphasis added)).\n\n14 No. 17-2606\n\n This court’s decision in Shaw v. Wilson, 721 F.3d 908 (7th\nCir. 2013), which also addressed this confusion in Indiana\nlaw, is distinguishable. There, the defendant claimed his ap-\npellate counsel was ineffective for failing to raise the timeli-\nness issue on appeal. This court agreed, concluding counsel\nshould have made the argument because it was the best one\navailable to him, even if the case law was against him. But key\nto that case is the fact that, under Indiana law, appellate coun-\nsel had to make an argument—Indiana did not allow him to\nfile an Anders-style, “motion to withdraw” brief. Shaw, 721\nF.3d at 915 (“[I]n Indiana appellate attorneys must ‘submit an\nordinary appellate brief…no matter how frivolous counsel re-\ngards the claims to be.’” (second alteration in original) (cita-\ntion omitted) (quoting Mosley v. State, 908 N.E.2d 599, 608\n(Ind. 2009))); see also Anders v. California, 386 U.S. 738 (1967).\nBecause of Indiana’s “file something” rule, it did not matter\nhow successful appellate counsel thought the claim might be;\nhe was legally bound to make the best argument he could,\neven if that argument was (ultimately) a loser. In this case,\nJones’s trial counsel was not operating under that same con-\nstraint, so the situations are not the same. I would not extend\nShaw’s reasoning to the scenario here.\n I have my misgivings about the Indiana Court of Appeals’\ndecision in this case. But, like Judge Barrett in her recent dis-\nsent in Sims v. Hyatte, “I can’t say that the Indiana Court of\nAppeals’ decision was ‘so lacking in justification that there\nwas an error well understood and comprehended in existing\nlaw beyond any possibility for fairminded disagreement.’”\n914 F.3d 1078, 1099 (7th Cir. 2019) (Barrett, J., dissenting)\n(quoting Harrington, 562 U.S. at 103). Therefore, I respectfully\ndissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372356/", "author_raw": "MANION, Circuit Judge, dissenting"}]}	WOOD	MANION	ROVNER	1	{"WOOD": ", Chief", "MANION": ", Cir cuit", "ROVNER": ", Cir cuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4595103/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,595,226	David M. JONES, Petitioner-Appellant, v. Dushan ZATECKY, Warden, Pendleton Correctional Facility, Respondent-Appellee.	David Jones v. Dushan Zatecky	2019-02-28	17-2606	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Manion, Rovner", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888080/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888081/", "author_raw": ""}, {"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2606\nDAVID M. JONES,\n Petitioner-Appellant,\n v.\n\nDUSHAN ZATECKY, Warden,\nPendleton Correctional Facility,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-1393-RLY-DML — Richard L. Young, Judge.\n ____________________\n\n ARGUED NOVEMBER 1, 2018 — DECIDED FEBRUARY 28, 2019\n ____________________\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Cir-\ncuit Judges.\n WOOD, Chief Judge. At the time of David Jones’s arrest and\nprosecution in 2005, Ind. Code § 35-34-1-5 (1982) identified\nan “omnibus date” and allowed prosecutors to make sub-\nstantive amendments to pending charges only up to 30 days\n\n2 No. 17-2606\n\nbefore the omnibus date. 1 Seven years earlier, in a case called\nHaak v. State, 695 N.E.2d 944, 951 (Ind. 1998), the Indiana Su-\npreme Court had confirmed the strict nature of this deadline.\nDisregarding this rule, in Jones’s case the state moved nine\ndays after the omnibus date to amend the charging instru-\nment to add a new and highly consequential charge of crim-\ninal confinement. Jones’s attorney did not object to this un-\ntimely amendment, and Jones was ultimately convicted of\nthe confinement charge.\n According to the state, there is nothing unique about\nJones’s case. It tells us that defense attorneys around Indiana\nroutinely ignored both the clear text of the statute and the\nHaak decision and allowed prosecutors to make untimely\namendments. If that is an accurate account, it is hardly reas-\nsuring. For a lawyer to fail to take advantage of a clear ave-\nnue of relief for her client is no less concerning because many\nothers made the same error—if anything, it is more so.\n We have seen this problem before. See Shaw v. Wilson, 721\nF.3d 908, 911 (7th Cir. 2013). We held in Shaw that following\nthe crowd is no excuse for depriving a criminal defendant of\nhis constitutional right to the effective assistance of counsel.\nId. at 917. We accordingly held that Shaw was entitled to the\nissuance of a writ of habeas corpus under 28 U.S.C. § 2254,\nbased on his attorney’s failure to object to an untimely\namendment to his charges under the same Indiana law now\n\n\n 1 Indiana amended this statute four months after the Indiana Su-\npreme Court applied it in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). See\nAct of May 8, 2007, P.L. 178-2007 § 1, 2007 Ind. Legis. Serv. (West) (codi-\nfied as amended at Ind. Code § 35-34-1-5 (2014)). The amendment is not\nretroactive and thus has no effect on Jones’s case.\n\nNo. 17-2606 3\n\nbefore us. Id. at 910. We conclude that Jones is entitled to the\nsame relief.\n I\n Jones was convicted of crimes tied to two incidents of do-\nmestic violence in 2005. In the first, he attacked his partner\nand was charged with battery; in the second, he threatened\nher and was charged (under a separate docket number) with\nintimidation and being a habitual offender. The trial court set\na joint omnibus date for both cases of October 18, 2005. Nine\ndays after that date, the state moved to amend the infor-\nmation in the battery case to add a charge of criminal con-\nfinement. (We refer to this as the First Amendment.) As we\nnoted, Jones’s attorney let this pass without objection, and\nthe court granted the state’s motion without a hearing. Then\nin January 2006, the state moved to amend the charge in the\nintimidation case to add the language “or engage in conduct\nagainst her will.” (This is the Second Amendment.) A few\nmonths later Jones’s new attorney filed a motion to dismiss\nthe amended information in the intimidation case, but the\ntrial court denied the motion.\n The cases were consolidated for trial, by which time Jones\nhad yet another attorney. On the first day of trial, the state\nmoved to amend the information for the criminal-confine-\nment charge (i.e. the battery case) again, this time to add the\nlanguage “and/or extreme pain.” Jones’s attorney objected,\nbut the court overruled him and allowed the amendment.\n(This was the Third Amendment.) The jury found Jones\nguilty of all three charges (battery, criminal confinement, and\nintimidation). He was sentenced to concurrent terms of 20\nyears for criminal confinement, enhanced by 25 years for be-\ning a habitual offender; eight years for battery resulting in\n\n4 No. 17-2606\n\nserious bodily injury; and three years for intimidation. Later\nthe trial court on its own motion reduced the battery convic-\ntion to a class B misdemeanor and reduced that sentence to\nsix months because of double-jeopardy concerns.\n On direct review, Jones argued that the trial court erred\nwhen it allowed the First Amendment in violation of Ind.\nCode § 35-34-1-5. The Indiana Court of Appeals rejected that\nargument on waiver grounds, because of counsel’s failure to\nobject. Jones v. State, 876 N.E.2d 389, 2007 WL 3287457, at 4\n(Ind. Ct. App. 2007) (unpublished table decision) (Jones I),\ntransfer denied, 891 N.E.2d 35 (Ind. 2008). His state-court pe-\ntition for post-conviction relief was also unsuccessful. Jones\nv. State, 46 N.E.3d 501, 2016 WL 359276, at 2–3 (Ind. Ct. App.\n2016) (Jones II) (unpublished table decision), transfer denied,\n49 N.E.3d 107 (Ind. 2016).\n After exhausting his state-court remedies, Jones filed a\npro se habeas corpus petition in federal court under 28 U.S.C.\n§ 2254. In it, he argues that his first lawyer’s failure to object\nto the untimely First Amendment amounted to ineffective as-\nsistance of counsel, and that the failure of the state courts to\ngrant him relief on that ground “involved an unreasonable\napplication of … clearly established Federal law, as deter-\nmined by the Supreme Court of the United States.” 28 U.S.C.\n§ 2254(d)(1). We review the district court’s decision to deny\na petition under section 2254 de novo, but the standard we\napply is one under which relief is possible only if the state\ncourt’s determination was objectively unreasonable. Virginia\nv. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (great deference is due\nto state-court determination, and standard for granting relief\nunder section 2254 is meant to be a difficult one); McNary v.\nLemke, 708 F.3d 905, 914 (7th Cir. 2013).\n\nNo. 17-2606 5\n\n The district court denied Jones’s petition and dismissed\nhis case with prejudice. It also denied a certificate of appeal-\nability, but we issued one based on Shaw. Before this court\n(now represented by recruited counsel, whom we thank),\nJones argues only that his attorney’s failure to object to the\nFirst Amendment, which added the criminal-confinement\ncharge that accounts for the lion’s share of his sentence, vio-\nlated his Sixth Amendment right to effective assistance of\ncounsel.\n II\n The version of Ind. Code § 35-34-1-5 in effect during\nJones’s prosecution forbade amendments of substance after\n30 days before the omnibus date. In Haak, Indiana’s highest\ncourt held that untimely amendments were “impermissible”\nif they were amendments of “substance,” and that the other\nprocedures in Indiana law allowing prosecutors to make\npost-omnibus amendments applied only to amendments of\n“form.” Id. Shortly after Jones’s conviction, another defend-\nant who did object to an untimely amendment had his con-\nviction reversed by the Indiana Supreme Court in Fajardo v.\nState, 859 N.E.2d 1201, 1202 (Ind. 2007). Jones argues, in es-\nsence, that his case should have been Fajardo, and would\nhave been if counsel had lodged a timely objection. 2\n\n\n\n 2 The fact that the defendant in Fajardo won the reversal of his con-\nviction on the improperly added charge and resentencing persuades us\nthat this is not simply a matter of paper-shuffling for Jones. The Indiana\nSupreme Court unanimously disposed of Fajardo as follows: “Because the\ntrial court’s sentencing determination for Count 1 may have been sub-\nstantially affected by the sentence determination for Count 2, we remand\nto the trial court for a new sentencing determination.” 859 N.E.2d at 1209.\n\n6 No. 17-2606\n\nCounsel’s failure to do so, he contends, was both defective\nperformance and highly prejudicial.\n A Sixth Amendment claim of ineffectiveness of counsel\ncan be predicated on an attorney’s failure to raise a state-law\nissue in a state-court proceeding. McNary, 708 F.3d at 920. We\nlook to state law in our evaluation of such a claim. George v.\nSmith, 586 F.3d 479, 483–84 (7th Cir. 2009). This focus on state\nlaw does not prevent us from considering the attorney’s fail-\nure to raise an obvious argument. McNary, 708 F.3d at 920.\nThat is because we are assessing counsel’s performance, and\nthat assessment proceeds against the backdrop of whatever\nthe state says its law is. We then apply the standards of Strick-\nland v. Washington, 466 U.S. 668 (1984), to determine whether\ncounsel’s assistance met constitutional standards. That re-\nquires us to determine whether counsel’s actions fell below\nthe constitutional minimum and whether there is a reasona-\nble probability that, but for counsel’s errors, the outcome\nwould have been different. Id. at 689.\n Shaw presented almost the identical situation for our re-\nview. 721 F.3d at 910. At the time of Shaw’s conviction, the\nsame Indiana law was in effect, and the state similarly\namended the information to add a more serious charge\nagainst Shaw after his omnibus date had passed. Shaw’s trial\ncounsel objected to the amendment, but the trial court ruled\nagainst him. Shaw’s appellate attorney declined to pursue\nthis point on appeal, choosing instead to make a near-frivo-\nlous argument about the sufficiency of the evidence. Id. at\n912.\n\n\nHad Jones’s attorney rendered adequate assistance, he would have been\nentitled to the same treatment.\n\nNo. 17-2606 7\n\n When Shaw reached this court, the state made the same\narguments against a finding of ineffective assistance of coun-\nsel that it is making in Jones’s case. We were not persuaded.\nWe found irrelevant the fact that no Indiana appellate court\nhad previously invalidated an untimely amendment at the\ntime of Shaw’s conviction—for all we knew, the trial courts\nwere policing this rule on their own. There could be no\ndoubt, we thought, that the combination of the terms of the\nstatute and Haak made this argument available for responsi-\nble counsel. Id. at 916. We also rejected the state’s attempt to\nportray the facts as unfairly requiring counsel to predict a\nchange in the law, for the simple reason that nothing had\nchanged. Id. at 916–17. And we held that the possibility of\nadditional time to prepare for trial did not alleviate any po-\ntential prejudice, since dismissal was a real possibility under\nexisting law. Id. at 918.\n Jones, like Shaw, had a strong argument for dismissing\none of the charges against him, yet his trial attorney did not\npursue it. The state suggests that Haak was widely ignored\nby defense counsel, but we have no hard data to back up that\nimpression. We are loath to say that an attorney’s failure to\nheed the specific direction of the Indiana Supreme Court and\nthe plain text of Indiana law is excusable. To the contrary,\nthat action falls “outside the wide range of professionally\ncompetent assistance” required by the Sixth Amendment.\nStrickland, 466 U.S. at 690. As in Shaw, this feature of Indiana\nlaw created a real opportunity for Jones’s defense, but coun-\nsel let it slip away. Fajardo and its aftermath show that this\nopportunity did not dissipate until years after Jones’s trial.\nWe conclude that this was one of those rare cases in which\n“counsel’s performance fell below the constitutional mini-\nmum, and that the Indiana appellate court’s conclusion\n\n8 No. 17-2606\n\notherwise was an unreasonable application of Supreme\nCourt precedent.” Shaw, 721 F.3d at 915. 3\n That leaves the question of prejudice. The facts here speak\nfor themselves on that point. It is easy to find a reasonable\nprobability that counsel’s error prejudiced Jones. As we\nnoted in Shaw:\n\n\n\n\n 3 The dissent suggests that we are giving inadequate deference to the\n\nstate court’s decision in Jones’s own case. We respectfully disagree. Lim-\nited though our role in habeas corpus cases may be, it is not meaningless.\nWhile the bar for a successful claim pursuant to 28 U.S.C. § 2254 is high\nand issuance of the writ is rare, some cases clear those hurdles, and we\nare not free to read the statute out of the books. The Supreme Court on a\nsignificant number of occasions post-AEPDA has held a state prisoner\nwas entitled to habeas corpus relief under 28 U.S.C. § 2254(d)(1) because\nthe state court’s decision was contrary to, or involved an unreasonable\napplication of, clearly established law. See Williams v. Taylor, 529 U.S. 362\n(2000) (right to effective assistance of counsel as required by Strickland,\n466 U.S. 668); Wiggins v. Smith, 539 U.S. 510 (2003) (right to effective as-\nsistance of counsel as required by Strickland, 466 U.S. 668); Rompilla v.\nBeard, 545 U.S. 374 (2005) (right to effective assistance of counsel as re-\nquired by Strickland, 466 U.S. 668); Abdul-Kabir v. Quarterman, 550 U.S. 233\n(2007) (right to present mitigation evidence to sentencing jury as required\nby Penry v. Lynaugh, 492 U.S. 302 (1989)); Panetti v. Quarterman, 551 U.S.\n930, 953 (2007) (right to present arguments showing incompetency to be\nexecuted, as required by Ford v. Wainwright, 477 U.S. 399 (1986)); Brewer\nv. Quarterman, 550 U.S. 286 (2007) (right to present mitigation evidence to\nsentencing jury as required by Penry, 492 U.S. 302); Lafler v. Cooper, 566\nU.S. 156, 173 (2012) (right to effective assistance of counsel as required by\nStrickland, 466 U.S. 668); McWilliams v. Dunn, 137 S. Ct. 1790 (2017) (right\nto mental health expert as required by Ake v. Oklahoma, 470 U.S. 68\n(1985)). These cases show that each case must be assessed on its own, and\nthat we continue to have the duty to correct a misapplication of clearly\nestablished federal law when that error meets the statutory standards.\n\nNo. 17-2606 9\n\n Prejudice exists, however, if counsel bypassed a non-\n frivolous argument that, if successful, would have re-\n sulted in the vacation of Shaw’s conviction (just as the\n conviction in Fajardo later was). If one is entitled to a\n dismissal, a continuance is no comfort. And when eval-\n uating prejudice, unlike when evaluating attorney per-\n formance, hindsight is permissible. ... This means that\n the Indiana Supreme Court’s ultimate decision in Fa-\n jardo is relevant to whether the argument [the lawyer]\n jettisoned was both nonfrivolous and stronger than the\n sufficiency argument he presented.\nId. at 918. Hindsight in Jones’s case tells us that his attorney’s\nsilence doomed his appeal. On direct appeal, the Indiana\nCourt of Appeals agreed that the First Amendment “was\nmade in violation of Indiana Code Section 35-34-1-5(b).”\nJones I, 2007 WL 3287457, at 3. In other words, what killed\nthe argument in that court was waiver, not lack of merit. As\nthe court put it, “[Jones] did not object to the amendment on\nthe same grounds to the trial court … [and thus] [t]he issue\nis waived.” Id. at 3–4.\n Indiana’s efforts to distinguish Shaw fall flat. Jones’s case\ndoes not require us to resolve any question of state law; it\ndemands only the application of the state’s statutes, as inter-\npreted by Indiana’s highest court. When addressing Jones’s\nlawyer’s failure to object to the untimely substantive amend-\nment, we need ask only whether raising the issue “had a bet-\nter than fighting chance at the time.” Shaw, 721 F.3d at 916. It\ndid. As we said in Shaw, “a competent lawyer in Indiana\nshould have recognized that there was a state statute under\nwhich relief for his client was possible and would have pur-\nsued that theory.” Id. at 914.\n\n10 No. 17-2606\n\n III\n Adhering to Shaw, we thus VACATE the district court’s de-\ncision to deny Jones’s petition for a writ of habeas corpus and\nREMAND with instructions to issue the writ within 120 days\nwith respect to his conviction for criminal confinement only\nand to make any necessary adjustments in his sentence on\nthe two unchallenged counts of conviction.\n\nNo. 17-2606 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372479/", "author_raw": "Diane Pamela Wood"}, {"author": "MANION, Circuit Judge, dissenting", "type": "dissent", "text": "MANION, Circuit Judge, dissenting. The ultimate question\nin this case is whether the Indiana Court of Appeals unrea-\nsonably applied federal law when it determined David\nJones’s counsel was not ineffective for failing to make a mo-\ntion that approximately twenty years of Indiana case law told\nhim would not be successful. The court says it was unreason-\nable. I disagree. While a reasonable person could find “coun-\nsel made errors so serious that counsel was not functioning as\n‘counsel’ guaranteed the defendant by the Sixth Amend-\nment,” Strickland v. Washington, 466 U.S. 668, 687 (1984), “fair-\nminded jurists could disagree” whether that is the only rea-\nsonable conclusion, see Harrington v. Richter, 562 U.S. 86, 102\n(2011). Accordingly, I respectfully dissent.\n This case concerns a petition for a writ of habeas corpus\nbrought by an Indiana prisoner, so we apply the highly def-\nerential standard of the Anti-Terrorism and Effective Death\nPenalty Act. See 28 U.S.C. § 2254(d). Under that standard, we\nask only if the last state court to adjudicate the prisoner’s\nclaim rendered “a decision that was contrary to, or involved\nan unreasonable application of, clearly established Federal\nlaw, as determined by the Supreme Court of the United\nStates; or…that was based on an unreasonable determination\nof the facts in light of the evidence presented in the State court\nproceeding.” Id.\n Here, the question is whether the Indiana Court of Ap-\npeals unreasonably applied the rule from Strickland, which is\n“the Supreme Court’s clearly established precedent” concern-\ning ineffective assistance of counsel. Weaver v. Nicholson, 892\nF.3d 878, 884 (7th Cir. 2018). Critically, “an unreasonable appli-\ncation of federal law is different from an incorrect application\nof federal law.” Harrington, 562 U.S. at 101 (quoting Williams\n\n12 No. 17-2606\n\nv. Taylor, 529 U.S. 362, 410 (2000)). In the realm of ineffective\nassistance, this means that a federal court should not grant a\nwrit of habeas corpus even if “the state-court decision may be\ncontrary to the federal court’s conception of how Strickland\nought to be applied in that particular case” so long as “the\ndecision is not ‘mutually opposed’ to Strickland itself.” Wil-\nliams, 529 U.S. at 406. The state court must have reached a de-\ncision “lying well outside the boundaries of permissible dif-\nferences of opinion,” not just one with which the federal court\ndisagrees. Burgess v. Watters, 467 F.3d 676, 681 (7th Cir. 2006)\n(quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).\nWith those guiding principles in mind, the facts of this case\ncompel the conclusion the Indiana Court of Appeals’ decision\nmay have been incorrect, but it was not unreasonable.\n At the time of Jones’s prosecution, the state of Indiana law\nconcerning the amendment of charging documents was con-\nfused. The Indiana Code plainly allowed substantive amend-\nments in felony cases to be made only “up to…thirty (30)\ndays…before the omnibus date,” I.C. § 35-34-1-5(b) (1982),\nand the Indiana Supreme Court had affirmed as much in Haak\nv. State, 695 N.E.2d 944, 951 (Ind. 1998) (“Pursuant to subsec-\ntion (b), [amendments of substance]…may not occur after\nspecified times in advance of the omnibus date.”). But at the\nsame time, the Indiana Court of Appeals consistently ren-\ndered decisions allowing late substantive amendments to\ncharging instruments so long as the defendant had adequate\ntime to prepare for trial. See, e.g., Laughner v. State, 769 N.E.2d\n1147, 1158 (Ind. Ct. App. 2002) (declining to address whether\nan amendment was substantive because, “[a]s a general rule\nany information may be amended at any time before, during,\nor after trial as long as the amendment does not prejudice the\nsubstantial rights of the defendant” (alteration in original)\n\nNo. 17-2606 13\n\n(quoting Hegg v. State, 514 N.E.2d 1061, 1063 (Ind. 1987))); see\nalso Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008) (“For\nover twenty years…case law regularly permitted amend-\nments related to matters of substance as long as the substan-\ntial rights of the defendant were not prejudiced, regardless of\nwhether the amendments were untimely under I.C. § 35-34-1-\n5(b).”). The Supreme Court of Indiana likewise blurred the\npicture. See Fajardo v. State, 859 N.E.2d 1201, 1206–07 (Ind.\n2007) (collecting cases and noting “[t]he methodology em-\nployed in the cases identified…does not comply with Indiana\nCode § 35-34-1-5”).\n Given this state of affairs, the Indiana Court of Appeals\nconcluded Jones’s counsel was not constitutionally deficient\nfor failing to move to dismiss the untimely amendment. Jones\nhad over ten months before trial, so the amendment did not\nprejudice the preparation of his defense. No Indiana appellate\ncourt had ever disallowed an amendment to a charging instru-\nment under those circumstances. Therefore, the court con-\ncluded a reasonable practitioner could make a tactical deci-\nsion not to pursue a motion to dismiss when the case law told\n 1\nhim it would fail. That was not unreasonable.\n\n\n 1\n I take issue with the court’s portrayal of the state’s argument on\nthis point. The court’s opinion says, “[The state] tells us that defense at-\ntorneys around Indiana routinely ignored both the clear text of the stat-\nute and the Haak decision and allowed prosecutors to make untimely\namendments.” Maj. Op. at 2. What the state actually argued was that rea-\nsonable attorneys would pay attention to and follow decisions coming\nfrom the appellate court. Indeed, it is not even the case that no lawyers\nwere making these challenges. Shaw v. Wilson, 721 F.3d 908, 916 (7th Cir.\n2013) (commenting “that dozens of similar (though unsuccessful) chal-\nlenges were documented in published opinions” (emphasis added)).\n\n14 No. 17-2606\n\n This court’s decision in Shaw v. Wilson, 721 F.3d 908 (7th\nCir. 2013), which also addressed this confusion in Indiana\nlaw, is distinguishable. There, the defendant claimed his ap-\npellate counsel was ineffective for failing to raise the timeli-\nness issue on appeal. This court agreed, concluding counsel\nshould have made the argument because it was the best one\navailable to him, even if the case law was against him. But key\nto that case is the fact that, under Indiana law, appellate coun-\nsel had to make an argument—Indiana did not allow him to\nfile an Anders-style, “motion to withdraw” brief. Shaw, 721\nF.3d at 915 (“[I]n Indiana appellate attorneys must ‘submit an\nordinary appellate brief…no matter how frivolous counsel re-\ngards the claims to be.’” (second alteration in original) (cita-\ntion omitted) (quoting Mosley v. State, 908 N.E.2d 599, 608\n(Ind. 2009))); see also Anders v. California, 386 U.S. 738 (1967).\nBecause of Indiana’s “file something” rule, it did not matter\nhow successful appellate counsel thought the claim might be;\nhe was legally bound to make the best argument he could,\neven if that argument was (ultimately) a loser. In this case,\nJones’s trial counsel was not operating under that same con-\nstraint, so the situations are not the same. I would not extend\nShaw’s reasoning to the scenario here.\n I have my misgivings about the Indiana Court of Appeals’\ndecision in this case. But, like Judge Barrett in her recent dis-\nsent in Sims v. Hyatte, “I can’t say that the Indiana Court of\nAppeals’ decision was ‘so lacking in justification that there\nwas an error well understood and comprehended in existing\nlaw beyond any possibility for fairminded disagreement.’”\n914 F.3d 1078, 1099 (7th Cir. 2019) (Barrett, J., dissenting)\n(quoting Harrington, 562 U.S. at 103). Therefore, I respectfully\ndissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372479/", "author_raw": "MANION, Circuit Judge, dissenting"}]}	WOOD	MANION	ROVNER	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4595226/	Published	1	1	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,595,257		David Jones v. Dushan Zatecky	2019-02-28	17-2606	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and MANION and ROVNER, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "Diane Pamela Wood", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-2606\nDAVID M. JONES,\n Petitioner-Appellant,\n v.\n\nDUSHAN ZATECKY, Warden,\nPendleton Correctional Facility,\n Respondent-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:16-cv-1393-RLY-DML — Richard L. Young, Judge.\n ____________________\n\n ARGUED NOVEMBER 1, 2018 — DECIDED FEBRUARY 28, 2019\n ____________________\n\n Before WOOD, Chief Judge, and MANION and ROVNER, Cir-\ncuit Judges.\n WOOD, Chief Judge. At the time of David Jones’s arrest and\nprosecution in 2005, Ind. Code § 35-34-1-5 (1982) identified\nan “omnibus date” and allowed prosecutors to make sub-\nstantive amendments to pending charges only up to 30 days\n\n2 No. 17-2606\n\nbefore the omnibus date. 1 Seven years earlier, in a case called\nHaak v. State, 695 N.E.2d 944, 951 (Ind. 1998), the Indiana Su-\npreme Court had confirmed the strict nature of this deadline.\nDisregarding this rule, in Jones’s case the state moved nine\ndays after the omnibus date to amend the charging instru-\nment to add a new and highly consequential charge of crim-\ninal confinement. Jones’s attorney did not object to this un-\ntimely amendment, and Jones was ultimately convicted of\nthe confinement charge.\n According to the state, there is nothing unique about\nJones’s case. It tells us that defense attorneys around Indiana\nroutinely ignored both the clear text of the statute and the\nHaak decision and allowed prosecutors to make untimely\namendments. If that is an accurate account, it is hardly reas-\nsuring. For a lawyer to fail to take advantage of a clear ave-\nnue of relief for her client is no less concerning because many\nothers made the same error—if anything, it is more so.\n We have seen this problem before. See Shaw v. Wilson, 721\nF.3d 908, 911 (7th Cir. 2013). We held in Shaw that following\nthe crowd is no excuse for depriving a criminal defendant of\nhis constitutional right to the effective assistance of counsel.\nId. at 917. We accordingly held that Shaw was entitled to the\nissuance of a writ of habeas corpus under 28 U.S.C. § 2254,\nbased on his attorney’s failure to object to an untimely\namendment to his charges under the same Indiana law now\n\n\n 1 Indiana amended this statute four months after the Indiana Su-\npreme Court applied it in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). See\nAct of May 8, 2007, P.L. 178-2007 § 1, 2007 Ind. Legis. Serv. (West) (codi-\nfied as amended at Ind. Code § 35-34-1-5 (2014)). The amendment is not\nretroactive and thus has no effect on Jones’s case.\n\nNo. 17-2606 3\n\nbefore us. Id. at 910. We conclude that Jones is entitled to the\nsame relief.\n I\n Jones was convicted of crimes tied to two incidents of do-\nmestic violence in 2005. In the first, he attacked his partner\nand was charged with battery; in the second, he threatened\nher and was charged (under a separate docket number) with\nintimidation and being a habitual offender. The trial court set\na joint omnibus date for both cases of October 18, 2005. Nine\ndays after that date, the state moved to amend the infor-\nmation in the battery case to add a charge of criminal con-\nfinement. (We refer to this as the First Amendment.) As we\nnoted, Jones’s attorney let this pass without objection, and\nthe court granted the state’s motion without a hearing. Then\nin January 2006, the state moved to amend the charge in the\nintimidation case to add the language “or engage in conduct\nagainst her will.” (This is the Second Amendment.) A few\nmonths later Jones’s new attorney filed a motion to dismiss\nthe amended information in the intimidation case, but the\ntrial court denied the motion.\n The cases were consolidated for trial, by which time Jones\nhad yet another attorney. On the first day of trial, the state\nmoved to amend the information for the criminal-confine-\nment charge (i.e. the battery case) again, this time to add the\nlanguage “and/or extreme pain.” Jones’s attorney objected,\nbut the court overruled him and allowed the amendment.\n(This was the Third Amendment.) The jury found Jones\nguilty of all three charges (battery, criminal confinement, and\nintimidation). He was sentenced to concurrent terms of 20\nyears for criminal confinement, enhanced by 25 years for be-\ning a habitual offender; eight years for battery resulting in\n\n4 No. 17-2606\n\nserious bodily injury; and three years for intimidation. Later\nthe trial court on its own motion reduced the battery convic-\ntion to a class B misdemeanor and reduced that sentence to\nsix months because of double-jeopardy concerns.\n On direct review, Jones argued that the trial court erred\nwhen it allowed the First Amendment in violation of Ind.\nCode § 35-34-1-5. The Indiana Court of Appeals rejected that\nargument on waiver grounds, because of counsel’s failure to\nobject. Jones v. State, 876 N.E.2d 389, 2007 WL 3287457, at 4\n(Ind. Ct. App. 2007) (unpublished table decision) (Jones I),\ntransfer denied, 891 N.E.2d 35 (Ind. 2008). His state-court pe-\ntition for post-conviction relief was also unsuccessful. Jones\nv. State, 46 N.E.3d 501, 2016 WL 359276, at 2–3 (Ind. Ct. App.\n2016) (Jones II) (unpublished table decision), transfer denied,\n49 N.E.3d 107 (Ind. 2016).\n After exhausting his state-court remedies, Jones filed a\npro se habeas corpus petition in federal court under 28 U.S.C.\n§ 2254. In it, he argues that his first lawyer’s failure to object\nto the untimely First Amendment amounted to ineffective as-\nsistance of counsel, and that the failure of the state courts to\ngrant him relief on that ground “involved an unreasonable\napplication of … clearly established Federal law, as deter-\nmined by the Supreme Court of the United States.” 28 U.S.C.\n§ 2254(d)(1). We review the district court’s decision to deny\na petition under section 2254 de novo, but the standard we\napply is one under which relief is possible only if the state\ncourt’s determination was objectively unreasonable. Virginia\nv. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (great deference is due\nto state-court determination, and standard for granting relief\nunder section 2254 is meant to be a difficult one); McNary v.\nLemke, 708 F.3d 905, 914 (7th Cir. 2013).\n\nNo. 17-2606 5\n\n The district court denied Jones’s petition and dismissed\nhis case with prejudice. It also denied a certificate of appeal-\nability, but we issued one based on Shaw. Before this court\n(now represented by recruited counsel, whom we thank),\nJones argues only that his attorney’s failure to object to the\nFirst Amendment, which added the criminal-confinement\ncharge that accounts for the lion’s share of his sentence, vio-\nlated his Sixth Amendment right to effective assistance of\ncounsel.\n II\n The version of Ind. Code § 35-34-1-5 in effect during\nJones’s prosecution forbade amendments of substance after\n30 days before the omnibus date. In Haak, Indiana’s highest\ncourt held that untimely amendments were “impermissible”\nif they were amendments of “substance,” and that the other\nprocedures in Indiana law allowing prosecutors to make\npost-omnibus amendments applied only to amendments of\n“form.” Id. Shortly after Jones’s conviction, another defend-\nant who did object to an untimely amendment had his con-\nviction reversed by the Indiana Supreme Court in Fajardo v.\nState, 859 N.E.2d 1201, 1202 (Ind. 2007). Jones argues, in es-\nsence, that his case should have been Fajardo, and would\nhave been if counsel had lodged a timely objection. 2\n\n\n\n 2 The fact that the defendant in Fajardo won the reversal of his con-\nviction on the improperly added charge and resentencing persuades us\nthat this is not simply a matter of paper-shuffling for Jones. The Indiana\nSupreme Court unanimously disposed of Fajardo as follows: “Because the\ntrial court’s sentencing determination for Count 1 may have been sub-\nstantially affected by the sentence determination for Count 2, we remand\nto the trial court for a new sentencing determination.” 859 N.E.2d at 1209.\n\n6 No. 17-2606\n\nCounsel’s failure to do so, he contends, was both defective\nperformance and highly prejudicial.\n A Sixth Amendment claim of ineffectiveness of counsel\ncan be predicated on an attorney’s failure to raise a state-law\nissue in a state-court proceeding. McNary, 708 F.3d at 920. We\nlook to state law in our evaluation of such a claim. George v.\nSmith, 586 F.3d 479, 483–84 (7th Cir. 2009). This focus on state\nlaw does not prevent us from considering the attorney’s fail-\nure to raise an obvious argument. McNary, 708 F.3d at 920.\nThat is because we are assessing counsel’s performance, and\nthat assessment proceeds against the backdrop of whatever\nthe state says its law is. We then apply the standards of Strick-\nland v. Washington, 466 U.S. 668 (1984), to determine whether\ncounsel’s assistance met constitutional standards. That re-\nquires us to determine whether counsel’s actions fell below\nthe constitutional minimum and whether there is a reasona-\nble probability that, but for counsel’s errors, the outcome\nwould have been different. Id. at 689.\n Shaw presented almost the identical situation for our re-\nview. 721 F.3d at 910. At the time of Shaw’s conviction, the\nsame Indiana law was in effect, and the state similarly\namended the information to add a more serious charge\nagainst Shaw after his omnibus date had passed. Shaw’s trial\ncounsel objected to the amendment, but the trial court ruled\nagainst him. Shaw’s appellate attorney declined to pursue\nthis point on appeal, choosing instead to make a near-frivo-\nlous argument about the sufficiency of the evidence. Id. at\n912.\n\n\nHad Jones’s attorney rendered adequate assistance, he would have been\nentitled to the same treatment.\n\nNo. 17-2606 7\n\n When Shaw reached this court, the state made the same\narguments against a finding of ineffective assistance of coun-\nsel that it is making in Jones’s case. We were not persuaded.\nWe found irrelevant the fact that no Indiana appellate court\nhad previously invalidated an untimely amendment at the\ntime of Shaw’s conviction—for all we knew, the trial courts\nwere policing this rule on their own. There could be no\ndoubt, we thought, that the combination of the terms of the\nstatute and Haak made this argument available for responsi-\nble counsel. Id. at 916. We also rejected the state’s attempt to\nportray the facts as unfairly requiring counsel to predict a\nchange in the law, for the simple reason that nothing had\nchanged. Id. at 916–17. And we held that the possibility of\nadditional time to prepare for trial did not alleviate any po-\ntential prejudice, since dismissal was a real possibility under\nexisting law. Id. at 918.\n Jones, like Shaw, had a strong argument for dismissing\none of the charges against him, yet his trial attorney did not\npursue it. The state suggests that Haak was widely ignored\nby defense counsel, but we have no hard data to back up that\nimpression. We are loath to say that an attorney’s failure to\nheed the specific direction of the Indiana Supreme Court and\nthe plain text of Indiana law is excusable. To the contrary,\nthat action falls “outside the wide range of professionally\ncompetent assistance” required by the Sixth Amendment.\nStrickland, 466 U.S. at 690. As in Shaw, this feature of Indiana\nlaw created a real opportunity for Jones’s defense, but coun-\nsel let it slip away. Fajardo and its aftermath show that this\nopportunity did not dissipate until years after Jones’s trial.\nWe conclude that this was one of those rare cases in which\n“counsel’s performance fell below the constitutional mini-\nmum, and that the Indiana appellate court’s conclusion\n\n8 No. 17-2606\n\notherwise was an unreasonable application of Supreme\nCourt precedent.” Shaw, 721 F.3d at 915. 3\n That leaves the question of prejudice. The facts here speak\nfor themselves on that point. It is easy to find a reasonable\nprobability that counsel’s error prejudiced Jones. As we\nnoted in Shaw:\n\n\n\n\n 3 The dissent suggests that we are giving inadequate deference to the\n\nstate court’s decision in Jones’s own case. We respectfully disagree. Lim-\nited though our role in habeas corpus cases may be, it is not meaningless.\nWhile the bar for a successful claim pursuant to 28 U.S.C. § 2254 is high\nand issuance of the writ is rare, some cases clear those hurdles, and we\nare not free to read the statute out of the books. The Supreme Court on a\nsignificant number of occasions post-AEPDA has held a state prisoner\nwas entitled to habeas corpus relief under 28 U.S.C. § 2254(d)(1) because\nthe state court’s decision was contrary to, or involved an unreasonable\napplication of, clearly established law. See Williams v. Taylor, 529 U.S. 362\n(2000) (right to effective assistance of counsel as required by Strickland,\n466 U.S. 668); Wiggins v. Smith, 539 U.S. 510 (2003) (right to effective as-\nsistance of counsel as required by Strickland, 466 U.S. 668); Rompilla v.\nBeard, 545 U.S. 374 (2005) (right to effective assistance of counsel as re-\nquired by Strickland, 466 U.S. 668); Abdul-Kabir v. Quarterman, 550 U.S. 233\n(2007) (right to present mitigation evidence to sentencing jury as required\nby Penry v. Lynaugh, 492 U.S. 302 (1989)); Panetti v. Quarterman, 551 U.S.\n930, 953 (2007) (right to present arguments showing incompetency to be\nexecuted, as required by Ford v. Wainwright, 477 U.S. 399 (1986)); Brewer\nv. Quarterman, 550 U.S. 286 (2007) (right to present mitigation evidence to\nsentencing jury as required by Penry, 492 U.S. 302); Lafler v. Cooper, 566\nU.S. 156, 173 (2012) (right to effective assistance of counsel as required by\nStrickland, 466 U.S. 668); McWilliams v. Dunn, 137 S. Ct. 1790 (2017) (right\nto mental health expert as required by Ake v. Oklahoma, 470 U.S. 68\n(1985)). These cases show that each case must be assessed on its own, and\nthat we continue to have the duty to correct a misapplication of clearly\nestablished federal law when that error meets the statutory standards.\n\nNo. 17-2606 9\n\n Prejudice exists, however, if counsel bypassed a non-\n frivolous argument that, if successful, would have re-\n sulted in the vacation of Shaw’s conviction (just as the\n conviction in Fajardo later was). If one is entitled to a\n dismissal, a continuance is no comfort. And when eval-\n uating prejudice, unlike when evaluating attorney per-\n formance, hindsight is permissible. ... This means that\n the Indiana Supreme Court’s ultimate decision in Fa-\n jardo is relevant to whether the argument [the lawyer]\n jettisoned was both nonfrivolous and stronger than the\n sufficiency argument he presented.\nId. at 918. Hindsight in Jones’s case tells us that his attorney’s\nsilence doomed his appeal. On direct appeal, the Indiana\nCourt of Appeals agreed that the First Amendment “was\nmade in violation of Indiana Code Section 35-34-1-5(b).”\nJones I, 2007 WL 3287457, at 3. In other words, what killed\nthe argument in that court was waiver, not lack of merit. As\nthe court put it, “[Jones] did not object to the amendment on\nthe same grounds to the trial court … [and thus] [t]he issue\nis waived.” Id. at 3–4.\n Indiana’s efforts to distinguish Shaw fall flat. Jones’s case\ndoes not require us to resolve any question of state law; it\ndemands only the application of the state’s statutes, as inter-\npreted by Indiana’s highest court. When addressing Jones’s\nlawyer’s failure to object to the untimely substantive amend-\nment, we need ask only whether raising the issue “had a bet-\nter than fighting chance at the time.” Shaw, 721 F.3d at 916. It\ndid. As we said in Shaw, “a competent lawyer in Indiana\nshould have recognized that there was a state statute under\nwhich relief for his client was possible and would have pur-\nsued that theory.” Id. at 914.\n\n10 No. 17-2606\n\n III\n Adhering to Shaw, we thus VACATE the district court’s de-\ncision to deny Jones’s petition for a writ of habeas corpus and\nREMAND with instructions to issue the writ within 120 days\nwith respect to his conviction for criminal confinement only\nand to make any necessary adjustments in his sentence on\nthe two unchallenged counts of conviction.\n\nNo. 17-2606 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372510/", "author_raw": "Diane Pamela Wood"}, {"author": "MANION, Circuit Judge, dissenting", "type": "dissent", "text": "MANION, Circuit Judge, dissenting. The ultimate question\nin this case is whether the Indiana Court of Appeals unrea-\nsonably applied federal law when it determined David\nJones’s counsel was not ineffective for failing to make a mo-\ntion that approximately twenty years of Indiana case law told\nhim would not be successful. The court says it was unreason-\nable. I disagree. While a reasonable person could find “coun-\nsel made errors so serious that counsel was not functioning as\n‘counsel’ guaranteed the defendant by the Sixth Amend-\nment,” Strickland v. Washington, 466 U.S. 668, 687 (1984), “fair-\nminded jurists could disagree” whether that is the only rea-\nsonable conclusion, see Harrington v. Richter, 562 U.S. 86, 102\n(2011). Accordingly, I respectfully dissent.\n This case concerns a petition for a writ of habeas corpus\nbrought by an Indiana prisoner, so we apply the highly def-\nerential standard of the Anti-Terrorism and Effective Death\nPenalty Act. See 28 U.S.C. § 2254(d). Under that standard, we\nask only if the last state court to adjudicate the prisoner’s\nclaim rendered “a decision that was contrary to, or involved\nan unreasonable application of, clearly established Federal\nlaw, as determined by the Supreme Court of the United\nStates; or…that was based on an unreasonable determination\nof the facts in light of the evidence presented in the State court\nproceeding.” Id.\n Here, the question is whether the Indiana Court of Ap-\npeals unreasonably applied the rule from Strickland, which is\n“the Supreme Court’s clearly established precedent” concern-\ning ineffective assistance of counsel. Weaver v. Nicholson, 892\nF.3d 878, 884 (7th Cir. 2018). Critically, “an unreasonable appli-\ncation of federal law is different from an incorrect application\nof federal law.” Harrington, 562 U.S. at 101 (quoting Williams\n\n12 No. 17-2606\n\nv. Taylor, 529 U.S. 362, 410 (2000)). In the realm of ineffective\nassistance, this means that a federal court should not grant a\nwrit of habeas corpus even if “the state-court decision may be\ncontrary to the federal court’s conception of how Strickland\nought to be applied in that particular case” so long as “the\ndecision is not ‘mutually opposed’ to Strickland itself.” Wil-\nliams, 529 U.S. at 406. The state court must have reached a de-\ncision “lying well outside the boundaries of permissible dif-\nferences of opinion,” not just one with which the federal court\ndisagrees. Burgess v. Watters, 467 F.3d 676, 681 (7th Cir. 2006)\n(quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).\nWith those guiding principles in mind, the facts of this case\ncompel the conclusion the Indiana Court of Appeals’ decision\nmay have been incorrect, but it was not unreasonable.\n At the time of Jones’s prosecution, the state of Indiana law\nconcerning the amendment of charging documents was con-\nfused. The Indiana Code plainly allowed substantive amend-\nments in felony cases to be made only “up to…thirty (30)\ndays…before the omnibus date,” I.C. § 35-34-1-5(b) (1982),\nand the Indiana Supreme Court had affirmed as much in Haak\nv. State, 695 N.E.2d 944, 951 (Ind. 1998) (“Pursuant to subsec-\ntion (b), [amendments of substance]…may not occur after\nspecified times in advance of the omnibus date.”). But at the\nsame time, the Indiana Court of Appeals consistently ren-\ndered decisions allowing late substantive amendments to\ncharging instruments so long as the defendant had adequate\ntime to prepare for trial. See, e.g., Laughner v. State, 769 N.E.2d\n1147, 1158 (Ind. Ct. App. 2002) (declining to address whether\nan amendment was substantive because, “[a]s a general rule\nany information may be amended at any time before, during,\nor after trial as long as the amendment does not prejudice the\nsubstantial rights of the defendant” (alteration in original)\n\nNo. 17-2606 13\n\n(quoting Hegg v. State, 514 N.E.2d 1061, 1063 (Ind. 1987))); see\nalso Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008) (“For\nover twenty years…case law regularly permitted amend-\nments related to matters of substance as long as the substan-\ntial rights of the defendant were not prejudiced, regardless of\nwhether the amendments were untimely under I.C. § 35-34-1-\n5(b).”). The Supreme Court of Indiana likewise blurred the\npicture. See Fajardo v. State, 859 N.E.2d 1201, 1206–07 (Ind.\n2007) (collecting cases and noting “[t]he methodology em-\nployed in the cases identified…does not comply with Indiana\nCode § 35-34-1-5”).\n Given this state of affairs, the Indiana Court of Appeals\nconcluded Jones’s counsel was not constitutionally deficient\nfor failing to move to dismiss the untimely amendment. Jones\nhad over ten months before trial, so the amendment did not\nprejudice the preparation of his defense. No Indiana appellate\ncourt had ever disallowed an amendment to a charging instru-\nment under those circumstances. Therefore, the court con-\ncluded a reasonable practitioner could make a tactical deci-\nsion not to pursue a motion to dismiss when the case law told\n 1\nhim it would fail. That was not unreasonable.\n\n\n 1\n I take issue with the court’s portrayal of the state’s argument on\nthis point. The court’s opinion says, “[The state] tells us that defense at-\ntorneys around Indiana routinely ignored both the clear text of the stat-\nute and the Haak decision and allowed prosecutors to make untimely\namendments.” Maj. Op. at 2. What the state actually argued was that rea-\nsonable attorneys would pay attention to and follow decisions coming\nfrom the appellate court. Indeed, it is not even the case that no lawyers\nwere making these challenges. Shaw v. Wilson, 721 F.3d 908, 916 (7th Cir.\n2013) (commenting “that dozens of similar (though unsuccessful) chal-\nlenges were documented in published opinions” (emphasis added)).\n\n14 No. 17-2606\n\n This court’s decision in Shaw v. Wilson, 721 F.3d 908 (7th\nCir. 2013), which also addressed this confusion in Indiana\nlaw, is distinguishable. There, the defendant claimed his ap-\npellate counsel was ineffective for failing to raise the timeli-\nness issue on appeal. This court agreed, concluding counsel\nshould have made the argument because it was the best one\navailable to him, even if the case law was against him. But key\nto that case is the fact that, under Indiana law, appellate coun-\nsel had to make an argument—Indiana did not allow him to\nfile an Anders-style, “motion to withdraw” brief. Shaw, 721\nF.3d at 915 (“[I]n Indiana appellate attorneys must ‘submit an\nordinary appellate brief…no matter how frivolous counsel re-\ngards the claims to be.’” (second alteration in original) (cita-\ntion omitted) (quoting Mosley v. State, 908 N.E.2d 599, 608\n(Ind. 2009))); see also Anders v. California, 386 U.S. 738 (1967).\nBecause of Indiana’s “file something” rule, it did not matter\nhow successful appellate counsel thought the claim might be;\nhe was legally bound to make the best argument he could,\neven if that argument was (ultimately) a loser. In this case,\nJones’s trial counsel was not operating under that same con-\nstraint, so the situations are not the same. I would not extend\nShaw’s reasoning to the scenario here.\n I have my misgivings about the Indiana Court of Appeals’\ndecision in this case. But, like Judge Barrett in her recent dis-\nsent in Sims v. Hyatte, “I can’t say that the Indiana Court of\nAppeals’ decision was ‘so lacking in justification that there\nwas an error well understood and comprehended in existing\nlaw beyond any possibility for fairminded disagreement.’”\n914 F.3d 1078, 1099 (7th Cir. 2019) (Barrett, J., dissenting)\n(quoting Harrington, 562 U.S. at 103). Therefore, I respectfully\ndissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372510/", "author_raw": "MANION, Circuit Judge, dissenting"}]}	WOOD	MANION	ROVNER	1	{"WOOD": ", Chief", "MANION": ", Cir cuit", "ROVNER": ", Cir cuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4595257/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,586,674	UNITED STATES of America, Plaintiff - Appellee v. Seng XIONG, Defendant - Appellant	United States v. Seng Xiong	2019-02-01	17-3283	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Colloton, Benton", "parties": "", "opinions": [{"author": "WOLLMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3283\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Seng Xiong\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - St. Paul\n ____________\n\n Submitted: October 16, 2018\n Filed: February 1, 2019\n ____________\n\nBefore WOLLMAN, COLLOTON, and BENTON, Circuit Judges.\n ____________\n\nWOLLMAN, Circuit Judge.\n\n A jury convicted Seng Xiong of mail and wire fraud in violation of 18 U.S.C.\n§§ 1341 and 1343. The district court1 sentenced Xiong to 87 months’ imprisonment.\nXiong argues that the court erred in disallowing him from presenting affirmative\n\n\n 1\n The Honorable Susan Richard Nelson, United States District Judge for the\nDistrict of Minnesota.\n\fdefenses based on perceived government authority, that the court violated his Fifth\nAmendment rights by questioning him directly, that the court violated his Sixth\nAmendment rights by barring him from presenting witnesses, and that the court erred\nin imposing a sentence that is procedurally and substantively unreasonable. We\naffirm.\n\n I. Background\n\n Many members of the Hmong ethnic group living in Laos assisted the United\nStates during the Vietnam War. When the United States withdrew from that region,\nthe Hmong faced persecution by the Laotian government. Many Hmong fled to\nThailand and other nearby countries, and some eventually settled in the United States.\n\n Xiong, a Hmong man born in Laos, came to the United States at a young age.\nBeginning in the early 2000s, Xiong participated in various Hmong advocacy\norganizations. Relevant here, from mid-2014 to early 2016 Xiong represented to the\nHmong community that he was working with the United Nations and the United\nStates government to establish a new country for the Hmong in Southeast Asia. He\ncreated a group named the Hmong Tebchaws, which translates to “Hmong Country,”\nand referred to himself as Keng Ther Seng, or “First Leader.” Xiong’s homeland\nproject received enthusiastic support from many in the Hmong community who desire\nto return to their home country, to be free from persecution, and to reclaim the lives\nthey had before the Vietnam War.\n\n Xiong promoted the Tebchaws and solicited donations through a conference\ncall line, a YouTube channel, a radio broadcast, a website, and a personal cell phone\nnumber. Steve Moua, another Hmong individual, allowed Xiong to use the call line\nhe had previously established to sell various supplements within the Hmong\ncommunity. Moua also used his YouTube channel to upload Xiong’s visual\npresentations. Xiong’s website provided a “Returning Home Registration Form” and\n\n\n -2-\n\fhis Wells Fargo bank account number so that donors could deposit money directly\ninto his account.\n\n Xiong told his followers that various levels of monetary support would entitle\ndonors to proportional rewards from the soon-to-be established Hmong government.\nThe best benefits would accrue to those who paid amounts between three and five\nthousand dollars, as they would receive a share of the government’s surplus each\nyear, whether it was “billions, millions, [or] trillions.” He told his followers that\nspace was limited in each donor class and that Hmong families and individuals\nneeded to obtain membership to join the migration to the new nation. He also told\nhis followers that he could not share much information with them because his\noperations were “top secret.” He said that his project was advancing and that the\nUnited States government had considered, and then approved, the new Hmong nation.\nHe released a final video on September 16, 2015, which asserted that authorities\nwould “take [the Hmong] across the ocean” to a newly established homeland within\nthe next few days.\n\n Shortly thereafter, Wells Fargo froze Xiong’s account after receiving tips that\nit was being used in connection with fraud. Law enforcement began investigating\nXiong within weeks of his final video. Xiong was arrested and charged in March\n2016. By that time, Xiong had received roughly $1.7 million from Hmong\nindividuals, $169,000 of which he spent on personal expenditures such as food,\nclothing, air travel, hotels, and escorts.\n\n At the government’s request, the district court ordered Xiong to disclose\nwhether he intended to raise a defense based on perceived government authority. See\nFed. R. Crim. P. 12.3(a). Following Xiong’s failure to make the required disclosures,\nthe government moved in limine to exclude any evidence related to any perceived\ngovernment authority defense unless Xiong proffered the evidence by the time of the\n\n\n -3-\n\fpretrial conference. The court extended the deadline for the Rule 12.3 disclosures,\nbut after Xiong failed to comply, the district court granted the government’s motion.\n\n After the deadline had expired, Xiong responded to the court’s order with a list\nof five government officials to whom he would refer, but not call to testify, while\npresenting his case. The government again moved in limine to prevent Xiong’s\ncounsel from suggesting in his opening statement or before presenting Xiong’s case-\nin-chief that Xiong had met with government officials. The court then scheduled a\npretrial hearing, ordering Xiong to clarify whether he planned to assert a defense\nbased on perceived government authority, and if he did, to proffer evidence sufficient\nto make a prima facie showing as to each element of his chosen theories of defense.\nThe court identified the three defenses Xiong might raise based on perceived\ngovernment authority—public authority, entrapment by estoppel, and innocent\nintent—and set forth the elements of each defense.\n\n At the pretrial hearing, Xiong’s counsel stated that Xiong would testify\nregarding communications with government officials that led Xiong to believe he\ncould legally pursue operations to establish a Hmong nation. Xiong’s counsel was\nunable to proffer evidence of these communications, however, and asked the court to\nquestion Xiong directly to obtain evidence. Noting that the requested procedure was\nunusual, the court obliged. Without first being placed under oath, Xiong said that he\nhad spoken in 2006 with government official Jackie Sanders, who had promised to\nforward Xiong’s letter proposing a Hmong nation to the White House. Xiong offered\nno further evidence of this conversation. The court questioned Xiong about the other\ngovernment officials he had named, and Xiong provided no evidence, other than his\ntestimony, that he had spoken with the officials listed. He provided no evidence of\nany further government contact.\n\n Recognizing that Xiong was not under oath, the court then placed him under\noath and continued questioning him about his perceived government authority\n\n -4-\n\fdefenses. After conferring with Xiong, defense counsel informed the court that\nXiong would employ only the innocent intent defense, which did not require pretrial\ndisclosures. The government requested that Xiong’s counsel not refer to any\nconversations with government officials before the presentation of Xiong’s case-in-\nchief, and Xiong’s counsel agreed.\n\n The government presented evidence at trial that Xiong had lied to his followers\nabout working with authorities to create a Hmong homeland. Various government\nofficials testified that Xiong had never visited the White House, had never spoken\nwith the State Department about forming a new nation, and had never notified the\nUnited Nations of the Hmong Tebchaws and their hope for a homeland. The\nevidence showed that United States and United Nations officials were not aware of\nXiong or his project and never approved the creation of a new Hmong nation. Rather,\nthe evidence showed that Xiong had attended roughly three United Nations sessions\nbetween 2006 and 2008, when he was affiliated with an advocacy organization called\nthe Congress of World Hmong People, and an informative briefing regarding the\nHmong community at the United Nations Visitor Center on September 4, 2015.\nSpecial Agent Michael Olson testified that anyone may request an informative\nbriefing on the topic of the requestor’s choosing, courtesy of the United Nations tour\nand visiting service.\n\n In his opening statement, Xiong’s counsel highlighted Xiong’s “incredible\npassion for his people.” He told the jury to “consider the element of intent” and\npromised to present evidence that Xiong had planned to establish a homeland when\nhe solicited donations. Xiong, his brother, and four members of the Hmong\nTebchaws testified for the defense. Aside from his testimony, Xiong presented no\nevidence of communications with United States or United Nations officials. In his\nclosing, Xiong’s counsel argued that Xiong believed in his mission and lacked intent\nto commit fraud. Xiong’s counsel also blamed Steve Moua and rival cultural groups\nfor framing Xiong. The jury returned guilty verdicts on both counts.\n\n -5-\n\f At Xiong’s request, new counsel was appointed to represent him at sentencing.\nThe court determined that Xiong’s base offense level under the United States\nSentencing Guidelines (Guidelines or U.S.S.G.) as to each charged offense was 7.\nThe court applied a 16-level enhancement for the amount of loss, § 2B1.1(b)(1)(I),\na 2-level enhancement for committing the offense through mass marketing,\n§ 2B1.1(b)(2)(A)(ii), and, finally, a 2-level enhancement under § 3A1.1(b)(1) in light\nof its determination that Xiong had preyed on vulnerable victims, to which Xiong\nlodged an unsuccessful objection. The court determined that Xiong’s criminal history\ncategory was I and that his adjusted base offense level was 27, resulting in a\nGuidelines sentencing range of 70-87 months on each count. It sentenced Xiong to\n87 months’ imprisonment on each count, to run concurrently. The court also imposed\na 3-year term of supervised release and restitution totaling $1,226,466.\n\n II. Discussion\n\n A. Defenses Based on Perceived Government Authority\n\n We have recognized three defenses based on perceived government authority:\npublic authority, entrapment by estoppel, and innocent intent. “‘Public authority’ has\nbeen described as an affirmative defense where the defendant seeks exoneration\nbased on the fact that he reasonably relied on the authority of a government official\nto engage him in covert activity.” United States v. Achter, 52 F.3d 753, 755 (8th Cir.\n1995). Entrapment by estoppel applies “when an official assures a defendant that\ncertain conduct is legal, and the defendant reasonably relies on that advice and\ncontinues or initiates the conduct.” Id. (quoting United States v. Smith, 940 F.2d 710,\n714 (1st Cir. 1991)). Under the innocent intent defense, a defendant claims that “he\nlacked criminal intent.” United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368\nn.18 (11th Cir. 1994). The public authority and entrapment by estoppel defenses\nrequire pretrial disclosures, including notice and a list of witnesses, under Federal\nRule of Criminal Procedure 12.3. The innocent intent defense does not require such\ndisclosures because it is based on the contention that the government failed to prove\n\n -6-\n\fthe intent element of the crimes. After the pretrial hearing, the district court barred\nXiong from raising either the public authority or entrapment by estoppel defenses, but\nXiong remained free to pursue an innocent intent theory.\n\n Xiong argues that the district court abused its discretion by requiring him to\nshow actual authority from a government official to raise any of the three perceived\ngovernment authority defenses.2 Xiong argues that the court’s incorrect legal\nstandard barred him from mentioning government contacts and raising perceived\ngovernment authority defenses at trial.3 “A district court abuses its discretion if it\ncommits an error of law.” Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001).\nBecause Xiong failed to object to the preclusion of any public authority and\nentrapment by estoppel defenses, he has not properly preserved this issue for appeal.\nFed. R. Evid. 103(a)(2). We therefore review the district court’s decision to exclude\nthe defenses and related evidence for plain error. Walker v. Kane, 885 F.3d 535, 538\n(8th Cir. 2018).\n\n\n\n\n 2\n Xiong concedes that the court correctly explained these requirements in its\norder requiring a pretrial hearing, but he claims that the court deviated from its order\nat the pretrial hearing and required him to show actual authority from a government\nofficial to present any of the three perceived government authority defenses.\n 3\n The court allowed Xiong to present an innocent intent defense without any\npretrial proffer, and he availed himself of the opportunity, despite his arguments to\nthe contrary. This is clear from his counsel’s remarks and questioning throughout the\ntrial. For example, Xiong’s counsel promised in his opening remarks to “present to\n[the jury] what [Xiong’s] intentions are, what his good faith intentions are in this --\nin his journey or in his pursuit of a Hmong Country or Hmong Tebchaws for his\nmembers and his people.” Counsel continued “I want you to consider the element of\nintent . . . you will hear directly from Mr. Xiong the reasons and the basis and the\nsubstantiation for his actions.” We thus reject any argument that the court precluded\nXiong from presenting this defense.\n\n -7-\n\f The record reveals that the district court required Xiong to show actual\nauthority only for a public authority defense. We have held that such a defense is\navailable when a defendant “reasonably relied on the authority of a government\nofficial,” Achter, 52 F.3d at 755, but we have not yet addressed whether the defense\nrequires a showing of actual, as opposed to apparent, authority.4 See United States\nv. Evans, 972 F.2d 355 (8th Cir. 1992) (unpublished table decision) (discussing but\nnot deciding the issue). Nor does Xiong provide us an occasion to do so. He offered\nno evidence sufficient to meet a lesser apparent authority standard, rendering\nharmless any error by the district court.\n\n Because Xiong failed to show even apparent authority, the court did not err in\npreventing him from raising a public authority defense at trial. Nor did the court err\nin precluding him from presenting an entrapment by estoppel defense in light of his\nfailure to offer any evidence. See Achter, 52 F.3d at 755 (concluding that the district\ncourt properly precluded the defendant from presenting public authority or\nentrapment by estoppel defenses because he proffered insufficient evidence to support\nthe defenses); see also United States v. Benning, 248 F.3d 772, 777 (8th Cir. 2001)\n(same as to entrapment by estoppel defense).\n\n B. Constitutional Violations\n\n Xiong argues that the district court violated his Fifth Amendment right against\nself-incrimination by directly questioning him in the pretrial conference. The Fifth\nAmendment promises that no person “shall be compelled in any criminal case to be\na witness against himself.” U.S. Const. amend. V. This privilege against self-\n\n 4\n Our sister circuits to consider the issue unanimously require actual authority.\nSee United States v. Sariles, 645 F.3d 315, 319 (5th Cir. 2011); United States v.\nFulcher, 250 F.3d 244, 254 (4th Cir. 2001); United States v. Pitt, 193 F.3d 751, 758\n(3d Cir. 1999); Baptista-Rodriguez, 17 F.3d at 1368 n.18; United States v. Duggan,\n743 F.2d 59, 84 (2d Cir. 1984).\n\n -8-\n\fincrimination “is a fundamental trial right,” and while pretrial questioning may\n“ultimately impair that right, a constitutional violation occurs only at trial.” United\nStates v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990). Xiong was questioned\noutside the presence of the jury, and his statements were not presented to the jury.\nXiong alleges that the court at one point “relayed [his statements] to the jury as an\nadmission of guilt,” Appellant’s Br. at 28, but the language he cites comprises the\ndistrict court’s summary of Xiong’s indictment for the jury. We conclude that Xiong\nhas failed to show any violation of his right against self-incrimination.\n\n Xiong also contends that the district court violated his Sixth Amendment right\nto compulsory process by requiring actual authority to present his defenses and by\ndetermining that Xiong could not refer to United States or United Nations officials\nwhen asserting his innocent intent defense. The Sixth Amendment guarantees an\naccused the right to “have compulsory process for obtaining witnesses in his favor.”\nU.S. Const. amend. VI. “Before a criminal defendant is entitled to compulsory\nprocess, however, he must establish that the testimony of the witnesses whose\npresence he wishes to compel is favorable and material.” Perry v. Lockhart, 871 F.2d\n1384, 1386-87 (8th Cir. 1989). Xiong’s failure to name any witnesses that he was\nprevented from calling precludes any evaluation of the materiality of such testimony,\nand we thus conclude that Xiong’s right to compulsory process was not violated.\n\n We do not consider Xiong’s argument that his trial counsel provided\nineffective assistance in violation of his Sixth Amendment rights. “We will not\nconsider an ineffective assistance claim not first presented to the district court and on\nwhich a proper record has not been made.” United States v. Duke, 940 F.2d 1113,\n1120 (8th Cir. 1991).\n\n\n\n\n -9-\n\f C. Sentencing\n\n Xiong claims that the district court’s sentence was substantively unreasonable\nbecause the court gave inadequate weight to the sentencing goal of reducing disparity\namong similarly situated defendants. He compares his 87-month sentence to the 120-\nmonth sentence of fraudster Denny Hecker, who stole substantially more money than\nXiong did. We discern no abuse of discretion. United States v. Soliz, 857 F.3d 781,\n783 (8th Cir. 2017) (standard of review). The court explicitly considered disparities\namong similarly situated defendants and adequately explained its sentence, reasoning\nthat Xiong had lied to his followers, preyed on their vulnerabilities, and maintained\nhis innocence at sentencing. Pointing to Hecker’s sentence does little for Xiong. See\nid. (“The sentencing practices of one district court are not a reference point for other\ncourts.”).\n\n Xiong disputes the court’s application of a vulnerable victim enhancement for\nthe first time in his reply brief. We generally do not address arguments initially raised\nin reply briefs, though we may if the new arguments supplement those raised in the\ninitial brief. See Jones v. Aetna Life Ins. Co., 856 F.3d 541, 549 (8th Cir. 2017).\nXiong’s argument supplements none initially raised, and we thus decline to consider\nit.\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -10-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363927/", "author_raw": "WOLLMAN, Circuit Judge."}]}	WOLLMAN	COLLOTON	BENTON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586674/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,586,676	In RE: Casey Drew O'SULLIVAN, Debtor CRP Holdings A-1, LLC, Appellant v. Casey Drew O'Sullivan, Appellee	CRP Holdings A-1, LLC v. O'Sullivan (In Re O'Sullivan)	2019-02-01	17-3226	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.", "parties": "", "opinions": [{"author": "SMITH, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3226\n ___________________________\n\n In re: Casey Drew O'Sullivan\n\n lllllllllllllllllllllDebtor\n\n ------------------------------\n\n CRP Holdings A-1, LLC\n\n lllllllllllllllllllllAppellant\n\n v.\n\n Casey Drew O'Sullivan\n\n lllllllllllllllllllllAppellee\n ____________\n\n Appeal from the United States Bankruptcy\n Appellate Panel for the Eighth Circuit\n ____________\n\n Submitted: September 26, 2018\n Filed: February 1, 2019\n ____________\n\nBefore SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.\n ____________\n\nSMITH, Chief Judge.\n\f CRP Holdings, A-1, LLC (CRP) appeals the Bankruptcy Appellate Panel’s\n(BAP) decision affirming the bankruptcy court’s order holding that CRP has an\nunenforceable judicial lien against the real property of the debtor, Casey Drew\nO’Sullivan, and avoiding that lien pursuant to 11 U.S.C. § 522(f)(1). We affirm.\n\n I. Background\n O’Sullivan and his wife acquired a residence as tenants by the entirety in\nNovember 1995. The residence is located in Barton County, Missouri (“property”).\nOn January 5, 2015, CRP obtained a $765,151.18 default judgment in the Circuit\nCourt of Platte County, Missouri, against O’Sullivan. The judgment did not include\nSullivan’s wife. CRP then filed a notice of foreign judgment, registering the judgment\non January 26, 2015, in the Circuit Court of Barton County, Missouri, in an attempt\nto obtain a judicial lien on the property owned by the O’Sullivans as tenants by the\nentirety. See Mo. Rev. Stat. § 511.440.\n\n On April 3, 2015, O’Sullivan filed a voluntary Chapter 7 bankruptcy petition,\nwhich his wife did not join. O’Sullivan listed the property in his schedules and\nclaimed a $15,000 homestead exemption under both Mo. Rev. Stat. § 513.475 and 11\nU.S.C. § 522(b)(3)(B). CRP did not object to O’Sullivan’s claimed exemptions.\nO’Sullivan simultaneously moved to avoid CRP’s purported judicial lien under 11\nU.S.C. § 522(f)(1), asserting that the lien impaired his claimed homestead exemption.\nCRP objected to the motion. While acknowledging that it had a judgment lien, CRP\nargued that its judgment lien did not attach to the property. Consequently, CRP\nasserted that its lien did not affix upon the property nor impair O’Sullivan’s\nexemption for lien-avoidance purposes.\n\n The bankruptcy court granted O’Sullivan’s motion to avoid CRP’s lien on the\nproperty. It concluded that “‘CRP’s judgment lien—although perhaps not\nenforceable—certainly affixed upon [O’Sullivan’s] home upon CRP’s recording of\nits judgment in Barton County’ and therefore impaired O’Sullivan’s claimed\n\n -2-\n\fexemption.” CRP Holdings, A–1, LLC v. O’Sullivan (In re O’Sullivan), 841 F.3d 786,\n788 (8th Cir. 2016) (alteration in original).\n\n CRP appealed to the BAP, which affirmed the bankruptcy court’s order. The\nBAP likewise concluded that “an unenforceable judgment lien arose” on the property\nheld by the entireties. CRP Holdings, A–1, LLC v. O’Sullivan (In re O’Sullivan), 544\nB.R. 407, 413 (B.A.P. 8th Cir.), vacated, 841 F.3d 786 (8th Cir. 2016). Therefore, the\nBAP reasoned, it was “possible for [O’Sullivan] to avoid it under § 522(f).” Id. CRP\nappealed the BAP’s affirmance of the bankruptcy court’s order avoiding its purported\njudicial lien.\n\n On appeal to this court, “CRP challenge[d] the BAP’s conclusion that\nO’Sullivan could avoid its purported judicial lien on the property.” In re O’Sullivan,\n841 F.3d at 788. “The only contested issues on appeal [were] whether a judicial lien\nexisted and, if so, whether that lien affixed on O’Sullivan’s interest in the property.”\nId.\n\n We identified a threshold question that neither party had addressed—“whether\nCRP had a judicial lien properly subject to avoidance under § 522(f)(1)(A).” Id. at\n788–89. Ultimately, we “decline[d] to undertake the question of whether there is a\ncognizable lien under § 522(f)(1) in the first instance.” Id. at 790. We opted to vacate\nthe BAP’s decision and remand “to the bankruptcy court for it to determine whether\nCRP has a judicial lien on the property (either enforceable or unenforceable).” Id.\n\n On remand, the bankruptcy court held that CRP possessed an unenforceable\njudicial lien against O’Sullivan’s property and granted O’Sullivan’s motion to avoid\nthe lien. In reaching its conclusion, the bankruptcy court noted that this court\n“direct[ed] the parties to only one of two possible results on remand.” In re\nO’Sullivan, 569 B.R. 163, 165 (Bankr. W.D. Mo. 2017), aff’d, No. 17-6012, 2017\nWL 4844244 (B.A.P. 8th Cir. Sept. 22, 2017). The bankruptcy court could find (1)\n\n -3-\n\fthe debt was dischargeable through the bankruptcy proceedings because CRP’s notice\nof foreign judgment failed to give rise to a lien on O’Sullivan’s exempt homestead\nproperty, or (2) the lien is avoidable under § 522(f)(1) because CRP’s notice of\nforeign judgment secured an either enforceable or unenforceable lien on the exempt\nproperty. The bankruptcy court opted for door number two. First, it found that “CRP’s\njudgment was not an enforceable lien against the Debtor’s [tenancy by the entirety]\nproperty under Missouri law when the Debtor filed bankruptcy.” Id.\n\n Second, it explained its assumption that “CRP had a cognizable and avoidable\nlien under § 522(f)(1)” based on “CRP’s actions . . . in recording the judgment lien\nas a foreign judgment in the county where the Debtor owned his exempt home and\nin challenging the lien avoidance on contradictory grounds.” Id. at 166.\n\n Third, the court concluded that CRP had no “judgment lien against the Debtor\nunder Missouri law when the Debtor filed his Chapter 7 bankruptcy case.” Id.\nSignificantly, the court also noted that the case required further analysis. This was\nbecause “§ 101(36) defines a judicial lien as ‘a lien obtained by judgment, levy,\nsequestration, or other legal or equitable process or proceeding.’” Id. (quoting 11\nU.S.C. § 101(36)). Furthermore, “lien” is defined as a “charge against or interest in\nproperty to secure payment of a debt or performance of an obligation.” Id. (quoting\n11 U.S.C. § 101(37)). The court then looked to Missouri law to determine whether\na “judgment lien” existed under the Bankruptcy Code. Id. The court determined that\nunder Missouri law, a judgment against tenancy-by-the-entirety property is a “‘cloud’\nagainst title” giving rise to an “interest in property” such that it may be avoided under\n§ 522(f)(1). Id. at 166–67 (citing Mahen v. Ruhr, 240 S.W. 164 (Mo. 1922)). The\ncourt concluded that CRP’s judgment could become a lien if O’Sullivan vacated the\nproperty or his spouse died. Thus, “CRP’s notice of foreign judgment ‘fastened an\nexistent, but presently unenforceable lien’ properly avoided under § 522(f)(1).” Id.\nat 168. Alternatively, the court held that CRP’s recording of its “judgment in Barton\nCounty where the Debtor’s exempt real estate was located vested CRP with ‘an\n\n -4-\n\finterest in property’ as a result of the otherwise unenforceable judgment, such that its\nresulting ‘judicial lien’ as defined by the Bankruptcy Code should likewise be\navoided under § 522(f)(1).” Id.\n\n The BAP affirmed. The BAP, like the bankruptcy court, determined that CRP\ndid not have a lien under Missouri law because O’Sullivan’s property was owned\njointly with his spouse as tenants by the entirety. The BAP also concluded that the\nexistence of a lien for purposes of § 522(f)(1) is determined by looking to state law\nin the context of the Bankruptcy Code’s definitions of the terms “judicial lien” and\n“lien” under §§ 101(36) and (37). The BAP construed these terms broadly. Like the\nbankruptcy court, the BAP concluded that CRP’s recording of the notice of foreign\njudgment created a cloud on O’Sullivan’s title on his exempt homestead. Under\nMissouri law, this cloud constituted a “charge against or interest in property” and thus\nqualified as a “judicial lien.” CRP Holdings, A–1, LLC v. O’Sullivan (In re\nO’Sullivan), No. 17-6012, 2017 WL 4844244, at 3 (B.A.P. 8th Cir. Sept. 22, 2017)\n(quoting 11 U.S.C. § 101(36)–(37)). The BAP concluded that a cloud on title may\nwarrant a court in removing it. The BAP also noted the “practical difficulties” that\nexist for an “ordinary searcher of the records or even a title company [in] trying to\ndetermine whether the judgment created a lien.” Id. at 4. This could, the BAP\nexplained, impact the property’s marketability of title and value. Furthermore, the\ncourt found that “CRP’s judgment ‘could become a lien the moment the . . .\n[Debtor’s] spouse dies.’” Id. (alteration and ellipsis in original) (quoting In re\nO’Sullivan, 569 B.R. at 168). The court found that applying § 522(f) would clear the\ncloud on the title caused by CRP’s recording of its judgment, which “‘fastened an\nexisting, but presently unenforceable lien’ on the Property.” Id. (quoting O’Sullivan,\n569 B.R. at 168).\n\n II. Discussion\n On appeal, CRP argues that the bankruptcy court erred in granting O’Sullivan’s\nmotion to avoid CRP’s purported judicial lien. CRP contends that under Missouri\n\n -5-\n\flaw, its notice of foreign judgment does not create an enforceable lien, unenforceable\nlien, or cloud upon title; instead, it represents a contingent future interest that may\nvest upon the happening of a future event.\n\n “When reviewing a decision of the BAP, we act as a second reviewing court\nof the bankruptcy court decision, independently applying the same standard of review\nas the BAP. This appeal turns on the bankruptcy court’s interpretation of law which\nwe review de novo.” In re O’Sullivan, 841 F.3d at 788 (cleaned up).\n\n “To shield exempt property from . . . post bankruptcy collection efforts, 11\nU.S.C. § 522(f)(1) provides a mechanism for bankruptcy courts to avoid, or\nextinguish, secured debts that would otherwise pass through the bankruptcy\nproceeding.” Id. Section 522(f)(1) provides, in relevant part, that “the debtor may\navoid the fixing of a lien on an interest of the debtor in property to the extent that\nsuch lien impairs an exemption to which the debtor would have been entitled under\n[§ 522(b)], if such lien is . . . a judicial lien.” 11 U.S.C. § 522(f)(1)(A). “To avoid the\nfixing of CRP’s purported judicial lien, O’Sullivan therefore had to establish that\nCRP’s notice of foreign judgment had (1) created an avoidable lien under § 522(f)(1),\nthat (2) affixed on O’Sullivan’s interest in property exempted under § 522(b), and (3)\nimpaired O’Sullivan’s claimed exemption in the property.” In re O’Sullivan, 841 F.3d\nat 788.\n\n As in the prior appeal, the only contested issues “are whether a judicial lien\nexisted and, if so, whether that lien affixed on O’Sullivan’s interest in the property.”\nId.\n\n The bankruptcy code defines “judicial liens” as liens “obtained by\n judgment, levy, sequestration, or other legal or equitable process or\n proceeding.” 11 U.S.C. § 101(36). Judicial liens are a subset of “liens,”\n which are defined as “charge[s] against or interest[s] in property to\n secure payment of a debt or performance of an obligation.” 11 U.S.C.\n\n -6-\n\f § 101(37). This definition of “liens” suggests that both unenforceable\n “charge[s] against” property and enforceable “interest[s] in” property\n fall within its scope. That interpretation is bolstered by the legislative\n history of the Bankruptcy Reform Act which itself states that the\n definition of lien is “very broad” and “includes inchoate liens.” S. Rep.\n No. 95–989, at 25 (1978); H.R. Rep. 95–595, at 312 (1977).\n\nId. at 789 (alterations in original).\n\n Given the broad definition of “judicial liens,” “unenforceable liens may be\navoided under § 522(f)(1).” Id. “The distinction between an existent but\nunenforceable lien and a non existent lien is relevant to an avoidance analysis under\n§ 522(f)(1).” Id. We look to state law to determine whether a debtor “possessed an\ninterest to which [a] lien fixed, before it fixed.” Id. (alteration in original) (quoting\nFarrey v. Sanderfoot, 500 U.S. 291, 299 (1991)). “Fixed” means “to ‘fasten a liability\nupon.’” Id. (quoting Farrey, 500 U.S. at 296). “When there is no lien under state law,\nhowever, there is nothing to ‘fasten’ upon the property and give rise to an\nunenforceable lien.” Id. As a result, “§ 522(f) is superfluous and without application.”\nId. (quoting In re Sanders, 39 F.3d 258, 262 (10th Cir. 1994)).\n\n As we recognized in the prior appeal, our sister circuits have distinguished\nbetween “existent but presently unenforceable liens and nonexistent liens.” Id. at\n789–90. Persuaded by our sister circuits’ distinctions, we “conclude[d] that where a\njudgment gives rise to an unenforceable lien, a debtor may move to avoid that lien\nunder § 522(f). When a judgment fails to give rise to any judicial lien (including an\nunenforceable lien), however, § 522(f)(1) is superfluous and without application.” Id.\nat 790.\n\n As we previously framed the issue, the question presented is whether, under\nMissouri law, CRP’s notice of foreign judgment gave rise to a lien on O’Sullivan’s\nexempt homestead property. If it did give rise to a lien, then O’Sullivan appropriately\n\n\n -7-\n\fmoved under § 522(f)(1) to avoid the lien, even if that lien is existent, but presently\nunenforceable. If CRP’s notice of foreign judgment did not give rise to a lien, then\n“the debt would have been dischargeable through the bankruptcy proceedings.” Id.\nTo answer this question, we look to Missouri law.\n\n Entireties property “is owned by a single entity, the marital community.”\n Fed. Nat’l Mortg. Ass’n v. Pace, 415 S.W.3d 697, 703 (Mo. Ct. App.\n 2013). Missouri state court judgments, such as the default judgment\n CRP obtained against O’Sullivan, are “lien[s] upon the real estate of the\n person against whom such judgment . . . is entered” located within the\n same county as the judgment. Mo. Rev. Stat. § 511.440 (emphasis\n added); see also Mo. Rev. Stat. § 511.350. Thus, when CRP filed its\n notice of foreign judgment, it created a judicial lien on any “real estate”\n owned by O’Sullivan in Barton County. “Real estate” itself is narrowly\n defined as an interest in property “liable to be sold upon execution.” Mo.\n Rev. Stat. § 511.010 (emphasis added). Here, because the real estate was\n held as entireties property, neither spouse arguably had “a separate\n interest [in that property] subject to execution,” and a judgment filed\n against only one spouse could not “constitute a lien on the [entireties]\n property.” Baker v. Lamar, 140 S.W.2d 31, 35 (Mo. 1940) (emphasis\n added).\n\nId. at 789 (alterations and ellipsis in original).\n\n In the prior appeal, we expressed our “serious doubts as to whether CRP has\na lien that affixed onto O’Sullivan’s interest in the property.” Id. In fact, based on the\naforementioned Missouri case law, we found “a strong argument that CRP did not\nobtain any lien on the property.” Id. Crucially, however, we declined to “definitively\nrule on the avoidance motion in the absence of such a finding.” Id.\n\n Now, after remand and return to our court, the decision to decline to determine\nthe avoidance motion in the first appeal has proven prudent. With respect to tenancy\nby the entirety, Missouri law recognizes that “[a] judgment against one [spouse]\n\n -8-\n\fwould not constitute a lien on the property since neither [spouse] has a separate\ninterest subject to execution.” Baker, 140 S.W.2d at 35. Despite the absence of a lien,\nMissouri law nonetheless recognizes that courts must act in equity to clear a cloud\nupon a title to real estate that is not apparent on the face of the document. See Mahen,\n240 S.W. at 164. In Mahen, a complex set of transactions occurred resulting in\nconveyance instruments that the court declared void because the property was held\nas tenants by the entirety. These conveyance documents included a sheriff’s deed\nreciting a judgment and execution, where the execution was against only the\nhusband’s interest that was not subject to levy and was based on a nonexistent\njudgment against him. Id. at 166 (“[T]he levy and sale under execution was void\nbecause the interest of [the husband] was not subject to levy.”). After acknowledging\nthe conveyance instruments were “void,” the court considered “whether all these void\ninstruments are a cloud upon the title which would warrant the interposition of a court\nof equity.” Id. The court recognized the rule that “where the record does not show on\nits face to the ordinary searcher of the record . . . the invalidity of the instrument\nattacked[,] the court will interfere to remove the cloud.” Id. Applying this rule, the\ncourt held:\n\n Here the title was held by the entireties. To the ordinary\n abstracter, or to the lay mind, a distinction might not be discovered\n between a deed by the entireties and a joint tenancy or a tenancy in\n common. Certain words might change the entire effect of the instrument.\n Here was a conveyance, regular on its face, made by Mahen, and\n purporting to convey his interest. Here was a deed, regular on its face,\n which purported to convey the interest of Josephine Mahen. Here was\n a sheriff’s deed reciting a judgment and execution in due form. So far as\n the record shows, the casual observer would not penetrate the difference\n and ascertain that all these conveyances were void from the inability of\n the owners to convey. . . . We think the record sufficiently shows a cloud\n upon the title to warrant the interposition by a court of equity.\n\nId.\n\n -9-\n\f In the present case, as in Mahen, there is no “lien” as Missouri law defines it\nbecause CRP’s notice of foreign judgment was against O’Sullivan, not O’Sullivan\nand his wife, who hold the property as tenants by the entirety. Nevertheless, there is\na “lien” as federal law defines it because a “cloud upon the title” to the property exists\nunder Missouri law, just as it did in Mahen, by virtue of CRP’s filing of the notice of\nforeign judgment. That cloud on title constitutes a “charge against or interest in the\nproperty.” 11 U.S.C. § 101(37). As the BAP observed:\n\n The recording of CRP’s foreign judgment in Barton County created a\n cloud on the Debtor’s title on his exempt homestead, which constituted\n a “charge against or interest in property” under Missouri law and\n qualified as a “judicial lien” under the Bankruptcy Code. 11 U.S.C.\n § 101(36). Where the record does not show on its face that recorded\n documents (such as a judgment) are void, a cloud on title may be created\n warranting the imposition of a court of equity to remove it.\n\nIn re O’Sullivan, 2017 WL 4844244, at 3.\n\n Consistent with Mahen, the BAP cited the “practical difficulties [that] may\nexist for an ordinary searcher of the records or even a title company trying to\ndetermine whether the judgment [against O’Sullivan] created a lien and the Property\nis liable for execution.” Id. at 4. The result is that the property’s value and\nmarketability of title would be affected. We agree with the BAP that CRP’s recording\nof the foreign judgment created a cloud on title under Missouri law sufficient to\nconstitute a “charge against or interest in” O’Sullivan’s property under the\nBankruptcy Code. 11 U.S.C. § 101(37).\n\n Therefore, we conclude that the cloud on title created by “CRP's recording of\nits judgment ‘fastened an existing, but presently unenforceable lien’ on the Property.”\nIn re O’Sullivan, 2017 WL 4844244, at *4 (quoting In re O’Sullivan, 569 B.R. at\n168). As a result, we hold that application of § 522(f) will clear the cloud on title to\n\n -10-\n\fO’Sullivan’s property and, as a result, the bankruptcy court properly granted\nO’Sullivan’s motion to avoid the lien.\n\n III. Conclusion\n Accordingly, we affirm the judgment of the BAP.\n ______________________________\n\n\n\n\n -11-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363929/", "author_raw": "SMITH, Chief Judge"}]}	SMITH	MELLOY	STRAS	1	{"SMITH": ", Chief", "MELLOY": ", Circuit", "STRAS": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586676/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,084	Jo LEVITT, Plaintiff - Appellant v. MERCK & COMPANY, INC., Defendant - Appellee	Jo Levitt v. Merck & Company	2019-02-04	17-2630	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Gruender, Grasz", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887957/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887958/", "author_raw": ""}, {"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2630\n ___________________________\n\n Jo Levitt\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Merck & Company, Inc.\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: September 27, 2018\n Filed: February 4, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n Merck & Company, Inc. (“Merck”) manufactured and distributed Vioxx as a\nmedication to relieve pain and inflammation between 1999 and 2004. Plaintiff Jo\nLevitt began taking Vioxx during the summer of 1999. She suffered cardiovascular\ninjuries in March and May of 2000 while taking the medication. Her doctor\ncontinued to prescribe her Vioxx until 2002, around the time Merck changed its label\n\nto disclose a risk of cardiovascular injuries associated with the use of Vioxx. Merck\nremoved Vioxx from the market in 2004.\n\n Levitt filed a personal injury lawsuit against Merck on September 29, 2006.\nMerck filed a motion for judgment on the pleadings, arguing that Levitt’s claims were\nbarred by Missouri’s five-year statute of limitations. The district court granted\nMerck’s motion and determined as a matter of law that, because “Plaintiff’s claims\naccrued prior to September 2001,” her September 29, 2006 suit was time-barred.\nLevitt appealed.\n\n We review a district court’s grant of judgment on the pleadings de novo.\nClemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009). The movant has the\nburden of “clearly establish[ing] that there are no material issues of fact and that it is\nentitled to judgment as a matter of law.” Porous Media Corp. v. Pall Corp., 186 F.3d\n1077, 1079 (8th Cir. 1999). At this stage of the proceedings, we view all facts\npleaded by Levitt as true and grant her all reasonable inferences. See Clemons, 585\nF.3d at 1124.\n\n Judgment on the pleadings may be granted “on the basis that the\ngoverning . . . statute of limitations expired.” Thach v. Tiger Corp., 609 F.3d 955,\n960 (8th Cir. 2010). The parties agree that Missouri’s statute of limitations applies,\nand we review the district court’s determinations of Missouri law de novo. See\nJurrens v. Hartford Life Ins. Co., 190 F.3d 919, 922 (8th Cir. 1999). “The party\nasserting the affirmative defense of the running of the applicable statute of limitations\nhas the burden of not only pleading but proving it.” Lomax v. Sewell, 1 S.W.3d 548,\n552 (Mo. Ct. App. 1999). In Missouri, the statute of limitations for personal injury\nclaims is five years after the cause of action accrues. Mo. Ann. Stat. § 516.120.\n“[T]he cause of action shall not be deemed to accrue when the wrong is done or the\ntechnical breach of contract or duty occurs, but when the damage resulting therefrom\nis sustained and is capable of ascertainment.” Mo. Ann. Stat. § 516.100.\n\n -2-\n\n The Missouri Supreme Court defined “capable of ascertainment” as when “the\nevidence [is] such to place a reasonably prudent person on notice of a potentially\nactionable injury.” Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576,\n582 (Mo. 2006) (emphasis removed). This “objective” test is from the standpoint of\na “reasonable person in [plaintiff’s] situation.” Id. at 584, 586. Both the “character\nof the condition . . . and its cause” must be capable of ascertainment. Elmore v.\nOwens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. 1984). “[W]hen contradictory or\ndifferent conclusions may be drawn from the evidence as to whether the statute of\nlimitations has run, it is a question of fact for the jury to decide.” Powel, 197 S.W.3d\nat 585.\n\n We conclude that there remains such “a question of fact for the jury to decide”\nbecause “contradictory or different conclusions may be drawn” as to whether “the\nevidence was such to place a reasonably prudent person on notice of a potentially\nactionable injury” before September 29, 2001. See id. at 584-85. Between 1999 and\n2004, scientists became increasingly confident that the use of Vioxx entailed a risk\nof cardiovascular injuries. Beginning in early 2000, the media covered reports of a\npossible link between Vioxx and cardiovascular incidents. See, e.g., Edward R.\nSilverman, Merck Shares Fall on Vioxx Study, Star-Ledger (Newark, N.J.), April 29,\n2000, at 17; Rita Rubin, Data: Vioxx Might Raise Heart Risk, USA Today, February\n9, 2001; Could Vioxx and Celebrex Increase Heart Risk?, Wash. Post, March 13,\n2001, at T6. In late 2000, the Vioxx Gastrointenstinal Outcomes Research (VIGOR)\nstudy indicated a potential risk of myocardial infarction associated with the use of\nVioxx. See Claire Bombardier et al., Comparison of Upper Gastrointestinal Toxicity\nof Rofecoxib and Naproxen in Patients with Rheumatoid Arthritis, 343 New Eng. J.\nMed. 1520, 1523 (2000).\n\n But the scientific community’s analysis remained tentative. In August 2001,\na peer-reviewed article in the Journal of the American Medical Association analyzed\n“all published, English-language, randomized, double-blind trials of COX-2\n\n -3-\n\ninhibitors [like Vioxx] from January 1998 to February 2001” and concluded that “the\navailable data raise[d] a cautionary flag about the risk of cardiovascular events with\nCOX-2 inhibitors” such as Vioxx. Debabrata Mukherjee et al., Risk of\nCardiovascular Events Associated with Selective COX-2 Inhibitors, 286 JAMA 954,\n954-955 (2001). But this comprehensive analysis recognized “significant\nlimitations”:\n\n There remains considerable uncertainty in any post hoc analysis. The patient\n populations in these trials . . . with rheumatoid arthritis have a higher risk of\n MI [myocardial infarction]. . . . Currently, no data exist on cardiovascular\n safety for the sporadic, intermittent use of these agents by individuals for\n musculoskeletal pain, which appears to be the most frequent pattern of use. . . .\n [D]efinitive evidence of [a cardiovascular] adverse effect will require a\n prospective randomized clinical trial.\n\nId. at 958. And Merck publicly argued at that time that no sound conclusions relating\nto cardiovascular risks could be drawn from the available studies. See Thomas M.\nBurton & Gardiner Harris, Note of Caution: Study Raises Specter of Cardiovascular\nRisk For Hot Arthritis Pills—Vioxx and Celebrex Marketers Dispute the Research,\nSought to Downplay It—A Spurned Appeal to JAMA, Wall St. J., August 22, 2001, at\nA1.\n\n The Missouri Supreme Court has not addressed how Powel’s “reasonably\nprudent person” test applies where an injury was only beginning to be linked to a\ncertain cause by developing science. Therefore, “we must attempt to predict what the\ncourt would decide if it were to address the issue” based on “relevant state precedent,\nanalogous decisions, considered dicta, . . . and any other reliable data.” Jurrens v.\nHartford Life Ins. Co., 190 F.3d 919, 922 (8th Cir. 1999).\n\n The Missouri Court of Appeals’s recent decision in Giles v. Carmi Flavor &\nFragrance Co., Inc. is most instructive. 475 S.W.3d 184 (Mo. Ct. App. 2015). Giles\ninvolved a worker at a food facility who was exposed to diacetyl, a chemical used in\n\n -4-\n\nbutter flavoring. In 1999 Giles began to experience lung problems, including\ndifficulty breathing, shortness of breath, coughing, and wheezing. Id. at 185. Around\n2001 and 2002, Giles and his primary care physician had actual knowledge about “the\npossible connection between butter flavoring and certain lung diseases,” but his\ndoctor did not make a diagnosis on this basis. Id. at 185. In 2004, Giles switched\nprimary care physicians, and between 2004 and 2011 his new doctor diagnosed Giles\nwith dyspnea (shortness of breath) and asthma. Id. at 186-87. Finally, in 2011, he\nwas referred to a third doctor who diagnosed Giles with bronchiolitis obliterans\ncaused by diacetyl. Id. at 187.\n\n The trial court in Giles granted summary judgment based on Missouri’s five-\nyear statute of limitations. The Missouri Court of Appeals reversed, finding that there\nwas a question of fact as to whether the cause of Giles’s lung condition was capable\nof ascertainment when “the scientific community [was] only beginning to piece\ntogether a connection between the bronchiolitis obliterans and diacetyl.” Id. at 194.\n\n In dismissing Levitt’s claims, the district court relied on two pre-Powel cases.\nIn Ahearn v. Lafayette Pharmacal, Inc., the plaintiff exhibited symptoms of a back\ncondition in 1975 but “did not learn of the causal relationship between the drug and\nthe disease until 1983.” 729 S.W.2d 501, 503 (Mo. Ct. App. 1987). She filed her\nlawsuit in 1984. Id. The Missouri Court of Appeals determined that the statute of\nlimitations barred her lawsuit because “the medical community, as early as the\n1940’s, was aware of the possible causation link” and “[t]here was considerable\nliterature available to the medical community which suggested this causal\nconnection.” Id. Likewise, in Buttice v. G.D. Searle & Co., the plaintiff had an\nintrauterine device (IUD) inserted in 1976 and removed a year later. 938 F. Supp.\n561, 564 (E.D. Mo. 1996). Between 1976 and 1983, she suffered from a pelvic\ninfection, blocked fallopian tubes, and infertility. Id. at 565. In 1995 she filed a\nlawsuit alleging that her IUD had caused these injuries. Id. The court determined\nthat her injuries were “capable of ascertainment more than five years before” in part\n\n -5-\n\nbecause “[b]y the early to mid 1980’s, medical texts regularly referenced the reported\nassociation between IUD use and pelvic inflammatory disease . . . and the resulting\npossibility of infertility.” Id. at 565, 567.\n\n Relying on Buttice and Ahearn, the district court concluded that the “case\nlaw . . . only requires knowledge of ‘a possible link’ between the injury and product.”\nLevitt v. Merck Sharp & Dohme Corp., 250 F. Supp. 3d 383, 387-88 (W.D. Mo. 2017)\n(emphasis added) (quoting Buttice, 938 F. Supp at 567). Such a standard was not\nspecifically discussed in Powel, and it was rejected in Giles. 475 S.W.3d at 193\n(“[W]e reject the argument that summary judgment should be affirmed because the\nmedical community was aware of the potential that diacetyl exposure could cause\nlung disease in 2001 and thus that Giles was on notice of a potentially actionable\nclaim at that time.”). Giles distinguished Ahearn and Buttice as cases where “the\nscience had long provided a causal connection between the diagnosis and the alleged\nwrong” (Ahearn) and where a “causal theory [for plaintiff’s injury] was capable of\nascertainment” about a decade before the cause of action was filed (Buttice).2 Giles,\n475 S.W.3d at 193-94.\n\n But here, as in Giles, the causal theory linking Vioxx to heart problems was\nonly beginning to emerge in the scientific community before September 29, 2001.\nTherefore, we predict that the Missouri Supreme Court would conclude that mere\nknowledge in the medical community of a possible link does not as a matter of law\nplace “a reasonably prudent person in [Levitt’s] position . . . on notice of a potentially\nactionable injury.” See Giles, 475 S.W.3d at 193. Powel focuses on when “the\nevidence was such to place a reasonably prudent person on notice of a potentially\n\n 2\n Giles also cites a federal district court opinion that questioned Ahearn’s\nviability and concluded “that medical community knowledge of possible causation\nis inconclusive” for statute of limitations purposes. Giles, 475 S.W.3d at 194 n.9\n(quoting Miller v. Mobay Corp., 741 F. Supp. 177, 178 (W.D. Mo. 1990)).\n\n\n -6-\n\nactionable injury.”3 Powel, 197 S.W.3d at 582 (emphasis added). As Giles and\nPowel indicate, Missouri law treats this as “a question of fact for the jury to decide”\nwhen “contradictory or different conclusions may be drawn” concerning the\nimplications of the scientific evidence for a reasonable plaintiff. Giles, 475 S.W.3d\nat 194 (quoting Powel, 197 S.W.3d at 585).\n\n Here, the state of the scientific literature connecting Vioxx to cardiovascular\ninjuries before September 29, 2001 was more akin to Giles than to Ahearn and Buttice\nbecause at that time science was only “beginning to piece together” a causal theory.\nSee id. at 194. Most compellingly, only one month before September 29, 2001, the\nAmerican Medical Association’s flagship journal found that “considerable\nuncertainty” remained as to the apparent connection between Vioxx and\ncardiovascular injuries, “no data” existed on whether “the most frequent pattern of\nuse” of Vioxx caused any heart problems at all, and more studies were needed. See\nMukherjee et al., supra, at 958. In addition, in the month prior to September 29,\n2001, Merck’s representatives and scientists were publicly contesting the validity of\nthe scientific claims suggesting a possible heart risk from the use of Vioxx, and\nMerck had yet to add any warnings of cardiovascular risks to Vioxx’s label.\n\n To be sure, the national news media covered reports of potential heart risks\nfrom taking Vioxx starting in 2000, and some plaintiffs filed cases in the months\nbefore September 2001 alleging that Vioxx caused heart problems. See, e.g., J.A.\n931, Reid v. Merck & Co., No. BC254630 (Cal. Super. Ct. July 23, 2001). Such\npublicly available information is relevant to whether “notice of a potentially\n\n\n\n\n 3\n As Giles emphasizes, the “test to determine when a cause of action has accrued\nis to ascertain the time when plaintiff could have first maintained the action to a\nsuccessful result.” 475 S.W.3d at 194 (quoting Ahearn, 729 S.W.2d at 503).\n\n\n -7-\n\nactionable injury” existed, but in this case it is not determinative as a matter of law.4\nSee Giles, 475 S.W.3d at 193-94 (“The record simply does not bear out, as a matter\nof law, that Giles could have maintained the action to a successful result prior to\n2007, unlike in Ahearn . . . .”). Thus, Merck failed to “clearly establish[] that there\nare no material issues of fact,” Porous Media Corp., 186 F.3d at 1079, as to\n“whether the statute of limitations has run,” Powel, 197 S.W.3d at 585.\n\n We do not require definitive proof of causation, a consensus in the scientific\ncommunity, or an admission by the putative defendant for the statue of limitations to\nbegin to run. But with all reasonable inferences given to Levitt, and following the\nmost recent and “relevant state precedent, analogous decisions, considered dicta,\n. . . and any other reliable data” to predict what the Missouri Supreme Court would\ndecide after Powel, we conclude that judgment on the pleadings was improper. See\nJurrens, 190 F.3d at 922. As Giles emphasizes, “[a]lthough it may be the case that\na reasonably prudent person in [plaintiff’s] position would have been on notice of a\npotentially actionable injury . . . , this conclusion does not follow as a matter of law.”\nGiles, 475 S.W.3d at 193. We thus reverse the district court’s dismissal on this basis\nand remand the case for further proceedings consistent with this opinion.\n\n\n\n\n 4\n The dissent argues that this is a question of law because the “the standard ‘is\nan objective one’” and “[t]here is no dispute about the scientific literature, media\nreports, corporate annual reports, and publicly-filed lawsuits that were in the public\ndomain before September 2001.” Post, at 12-13. We agree that the existence of such\nmaterials is undisputed, as it was undisputed Giles. But Giles shows that the import\nof such materials can be reasonably disputed. In such a scenario, Powel and Giles\ncall upon the jury to decide whether a “reasonably prudent person” in plaintiff’s\nposition—as opposed to Levitt herself—was on “notice of a potentially actionable\ninjury.” Giles, 475 S.W.3d at 189 (quoting Powel, 197 S.W.3d at 582).\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364337/", "author_raw": "GRUENDER, Circuit Judge."}, {"author": "COLLOTON, Circuit Judge, dissenting", "type": "dissent", "text": "COLLOTON, Circuit Judge, dissenting.\n\n I conclude that the district court correctly applied Missouri law in ruling that\nJo Levitt’s claim against Merck & Company was barred by the statute of limitations.\nI would therefore affirm the judgment.\n\n Missouri applies an “inquiry notice” standard to begin the running of a statute\nof limitations. Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 583\n(Mo. 2006). There is no requirement that the plaintiff have actual knowledge of her\ninjury and its cause. Wheeler v. Eftink, 507 S.W.3d 598, 604 (Mo. Ct. App. 2016).\nA cause of action accrues when the “evidence was such to place a reasonably prudent\nperson on notice of a potentially actionable injury.” Powel, 197 S.W.3d at 582.\n\n In this case, Levitt suffered cardiovascular injuries in March and May 2000\nwhile taking Vioxx, a medication manufactured by Merck. She underwent double\ncoronary bypass surgery. Around the same time, information in the public domain\nplaced a reasonably prudent person on notice of a causal theory that linked Vioxx to\ncardiovascular injuries. The district court properly took judicial notice of several\npeer-reviewed journal articles, media reports, and public court records, some of which\nwere even cited in Levitt’s complaint. See, e.g., Miller v. Redwood Toxicology Lab.,\nInc., 688 F.3d 928, 931 n.3 (8th Cir. 2012); Levy v. Ohl, 477 F.3d 988, 991 (8th Cir.\n2007); Kushner v. Beverly Enters., 317 F.3d 820, 831 (8th Cir. 2003); Wash. Post v.\nRobinson, 935 F.2d 282, 291-92 (D.C. Cir. 1991).\n\n In 2000, an article in the New England Journal of Medicine reported that in a\nclinical study of 8,076 people taking arthritis drugs, patients using Vioxx suffered\nmore heart attacks than patients using a comparator agent, naproxen. News reports\non this study explained that a clinical trial of Vioxx had “detected statistically\n‘significant’ cardiovascular problems,” (Newark Star-Ledger, April 2000), that\n\n\n\n -9-\n\n“patients on Vioxx were more likely to suffer heart attacks and other cardiovascular\ncomplications than those on naproxen,” (USA Today, Feb. 2001), that “patients\ntaking Vioxx have a higher risk of heart attack,” (CBS The Early Show, May 2001),\nand that takers of Vioxx “had significantly more heart attacks” than users of the\nalternative. (Washington Post, March 2001). See J.A. 639, 898-99, 901, 904.\n\n In August 2001, a review of literature published in the Journal of the American\nMedical Association reiterated that the clinical study showed a “significantly\nincreased risk of cardiovascular event” with use of Vioxx rather than the alternative,\nand opined that “the available data raise a cautionary flag about the risk of\ncardiovascular events” with Vioxx. The authors found “a potential increase in\ncardiovascular event rates” for Vioxx and “urge[d] caution in prescribing” the drug\nto certain patients.\n\n As early as July 2001, other plaintiffs sued Merck alleging that Vioxx caused\nserious cardiovascular events. One complaint from July 23, 2001, alleged that Vioxx\nhad “been linked to several severe and life threatening medical disorders,” including\nheart attack and stroke. J.A. 931, Reid v. Merck & Co., Case No. BC254630 (Cal.\nSup. Ct. July 23, 2001). Levitt herself alleged that Merck’s 2001 Annual Report\ndisclosed that a number of federal and state lawsuits had been filed against Merck\nwith respect to Vioxx, alleging gastrointestinal bleeding and cardiovascular events.\nR. Doc. 1, at 9.\n\n Despite all of this information in the public domain before September 2001, the\ncourt holds that a reasonable jury could find that a reasonably prudent person who\nhad suffered cardiovascular injuries while taking Vioxx was not on inquiry notice of\na potential claim against Merck. The rationale apparently is that the scientific data\nallowed for uncertainty about whether Vioxx caused cardiovascular injuries, and\nMerck was disputing the causal link.\n\n\n\n -10-\n\n In my view, the court’s approach calls for more than the “inquiry notice”\nrequired to start the statute of limitations under Missouri law. The Missouri Court of\nAppeals, Eastern District, long ago ruled that a “possible causation link” based on\nliterature in the medical community that “suggested” a “causal connection” was\nsufficient as a matter of law to start the limitations period running. Ahearn v.\nLafayette Pharmacal, Inc., 729 S.W.2d 501, 503 (Mo. Ct. App. 1987).\n\n The court believes that a recent decision of the Missouri Court of Appeals,\nWestern District, rejected the standard applied in Ahearn, but that case involved a\ndifferent issue. In Giles v. Carmi Flavor & Fragrance Co., 475 S.W.3d 184 (Mo. Ct.\nApp. 2015), the plaintiff was not even diagnosed with his injury outside the\nlimitations period, so the causal link between his injury and the defendant’s product\nwas immaterial to the decision. See id. at 193 (“The first two specialists who treated\nGiles were unable to diagnose bronchiolitis obliterans even though they were made\naware of the potential occupational hazard. Under these facts, we cannot find as a\nmatter of law that Giles’s cause of action accrued prior to 2007.”) (emphases added).\nGiles distinguished Ahearn on this basis, and the court never decided whether\nparticular scientific studies or journal articles suggesting a causal link were sufficient\nto place an injured party on inquiry notice. Id. at 194. Giles hinged on the fact that\n“neither of two specialists was able to diagnose [the plaintiff] with a lung condition\nrelated to [his] exposure” more than five years before his lawsuit. Id. at 193\n(emphasis added).\n\n Dictum in Giles does say that the science in Ahearn “had long provided a\ncausal connection between the diagnosis and the alleged wrong,” while the scientific\ncommunity in Giles was “only beginning to piece together a connection between the\nbronchiolitis obliterans and diacetyl when Giles began showing symptoms of lung\ndisease.” Id. This discussion provides little insight, however, because Giles says that\nthe plaintiff began showing symptoms in 1999, id. at 192, but does not describe what\n\n\n\n -11-\n\nwas known in the scientific community about a causal link at that time. Ahearn\ndescribed only a “possible causation link” based on literature that “suggested” a\ncausal connection, so Giles must have been referring to lesser knowledge than that\nwhen it contrasted Ahearn.\n\n The better view of Missouri law is that studies, articles, and lawsuits in the\npublic domain before September 2001 placed Levitt on notice to inquire further about\nwhether Vioxx caused her cardiovascular injuries. To require definitive proof of\ncausation, a consensus in the scientific community, or an admission by the putative\ndefendant before the claim accrues would swallow the inquiry notice rule. And once\nthe information is available to a reasonably prudent person, it does not matter whether\nthe literature has been published for three weeks or three decades. When a plaintiff\nshould know about an injury and a variety of possible causes, she is on notice to\ninquire further, and the statute of limitations begins to run, even though the exact\ncause is yet unknown. See Ball v. Friese Const. Co., 348 S.W.3d 172, 177 (Mo. Ct.\nApp. 2011). As the Iowa Supreme Court explained in an analogous situation, an\n“inquiry notice” standard does not postpone the beginning of the limitations period\nuntil a successful completion of the plaintiff’s investigation. Ranney v. Parawax Co.,\n582 N.W.2d 152, 156 (Iowa 1998). Once the plaintiff knows of a possible causation\nlink, she is on notice to investigate, and she must complete an investigation and file\nany action within the limitations period. Id.\n\n The court says it is merely holding that the limitations issue cannot be decided\n“as a matter of law,” but the standard “is an objective one,” and “where relevant facts\nare uncontested, the statute of limitations can be decided by the court as a matter of\nlaw.” Powel, 197 S.W.3d at 585. In Giles, there was a factual issue about whether\nthe plaintiff’s condition was capable of ascertainment before he was diagnosed. 475\nS.W.3d at 194. But here, the relevant facts are uncontested. Levitt’s condition of\ncardiovascular injury was diagnosed before September 2001. There is no dispute\n\n\n\n -12-\n\nabout the scientific literature, media reports, corporate annual reports, and publicly-\nfiled lawsuits that were in the public domain before September 2001. The only\nfighting issue is a legal one: whether the publicly-available information placed a\nreasonably prudent person with cardiovascular injury after taking Vioxx on inquiry\nnotice of a potential claim against Merck. By referring this issue to a jury, and\ncharacterizing it as a “question of fact,” the court ironically contemplates a possible\nruling against Levitt based on scientific literature that the court says was “only\nbeginning to piece together” a connection between Vioxx and cardiovascular injury.\nIn my view, the better conclusion under Missouri law is that the relevant scientific\nliterature, reports, and lawsuits described a “possible causation link” and “suggested”\na causal connection, such that the limitations period began to run as a matter of law.\nSee Ahearn, 729 S.W.2d at 503.\n\n Levitt was on inquiry notice that she had a potential claim against Merck\nbefore September 2001, but she did not file this action until September 2006. The\nfive-year statute of limitations had therefore expired. Levitt argues alternatively that\nMerck fraudulently concealed her cause of action, but the district court correctly\nrejected this claim: facts in the public domain placed Levitt on inquiry notice by\nSeptember 2001, and a putative defendant does not fraudulently conceal by disputing\na theory of causation. For these reasons, I would affirm the judgment.\n ______________________________\n\n\n\n\n -13-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364337/", "author_raw": "COLLOTON, Circuit Judge, dissenting"}]}	COLLOTON	GRUENDER	GRASZ	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4587084/	Published	1	1	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,085	Gary D. BRUNCKHORST, Plaintiff - Appellant v. CITY OF OAK PARK HEIGHTS, Defendant - Appellee	Gary D. Brunckhorst v. City of Oak Park Heights	2019-02-04	17-3238	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Colloton, Benton", "parties": "", "opinions": [{"author": "WOLLMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3238\n ___________________________\n\n Gary D. Brunckhorst\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n City of Oak Park Heights\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 16, 2018\n Filed: February 4, 2019\n ____________\n\nBefore WOLLMAN, COLLOTON, and BENTON, Circuit Judges.\n ____________\n\nWOLLMAN, Circuit Judge.\n\n Gary Brunckhorst filed this employment discrimination suit under the\nAmericans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the\nMinnesota Human Rights Act (MHRA), Minn. Stat. § 363A.01 et seq., against his\n\fformer employer, the City of Oak Park Heights (the City). The district court1 granted\nsummary judgment to the City. We affirm.\n\n I.\n\n Brunckhorst worked for the City for more than fifteen years. In April 2014, he\nwas serving as the Senior Accountant/Payroll Technician (Senior Accountant), a\nposition that paid $72,000 per year and required him to perform payroll and\ninformation technology (IT) functions. Because the City is a small organization with\napproximately twenty-one employees, Brunckhorst also carried out back-up duties\nfor accounts payable and utility billing, assisted the front office in answering phones,\nand covered for other employees during their lunch breaks. Although Brunckhorst\nperformed his job at City Hall, he was able to perform certain IT functions from a\ncomputer at his home.\n\n Brunckhorst contracted Fournier’s gangrenous necrotizing fasciitis—a rare,\nlife-threatening disease commonly known as “flesh-eating” bacteria—in mid-April\n2014. He underwent three life-saving surgeries, spent nearly five months in a\nhospital/nursing care facility, and returned to his home in September 2014. The\ndisease left Brunckhorst with long-term injuries.\n\n Brunckhorst requested and was approved for leave under the Family and\nMedical Leave Act (FMLA) on April 16, 2014. Three months later, the City\nAdministrator, Eric Johnson, informed Brunckhorst that his FMLA leave had been\nexhausted and that he was eligible to request unpaid leave for up to ninety days under\n\n\n\n\n 1\n The Honorable Donovan W. Frank, United States District Judge for the\nDistrict of Minnesota.\n\n -2-\n\fa city ordinance.2 Brunckhorst requested unpaid leave under the ordinance, and\nJohnson granted his request for sixty days with the possibility of thirty additional\ndays thereafter.\n\n Johnson sent Brunckhorst an updated job description for the Senior Accountant\nposition on September 15, 2014. The description set forth all of the duties that he had\nbeen performing. Johnson asked Brunckhorst to provide documentation from his\ndoctor regarding whether Brunckhorst was able to perform the essential functions of\nthe position. Brunckhorst responded with a letter from his doctor stating that\nBrunckhorst could not return to work within thirty days and requested extended leave.\nJohnson granted his request. Johnson again wrote to Brunckhorst about his condition\non October 24 and requested that his doctor fill out a Medical Certification form.\nBrunckhorst replied with a doctor’s note stating that Brunckhorst might be able to\nreturn to work on December 1. On November 14, Johnson extended Brunckhorst’s\nleave up to December 1 and requested additional medical documentation.\nBrunckhorst’s doctor returned a form on November 24 stating that Brunckhorst might\nbe able to return to work on January 1.\n\n Earlier, on November 12, Johnson had told the City Council that the Senior\nAccountant position was no longer needed, partly because its duties had been\nabsorbed by other employees. The City Council favored eliminating the position and\noffering Brunckhorst a severance package. Johnson, however, took steps to assign\nBrunckhorst to the position of Utility Billing Clerk/Accounting Technician so that he\nwould have a job when he returned, albeit at a lower salary of $50,000. The new\nposition included the same benefits and was classified for union representation.\n\n\n\n 2\n Brunckhorst claims that he was entitled to one year of unpaid leave. The\nordinance, however, gives the City Administrator discretion to grant up to one year\nof unpaid leave. See Oak Park Heights, Minn. Ordinance § 203.14(B)(2).\n\n -3-\n\f Brunckhorst met with his supervisor, Betty Caruso, and Johnson on December\n22. Johnson informed Brunckhorst that the Senior Accountant position had been\neliminated and allowed him to choose between the new position or a severance\npackage. Brunckhorst replied that he wanted to remain in his original position.\nBrunckhorst testified that he had complained at the meeting that he was being\ndiscriminated against because of his disability. Brunckhorst retained counsel\nfollowing the meeting.\n\n Brunckhorst still had not returned to work by February 25, 2015. Johnson sent\na letter asking Brunckhorst to provide a request by March 23 for any reasonable\naccommodations he might need to perform the essential functions of the new position,\nwhich included, among other duties, answering questions from the public and\nassisting with payroll. Johnson also required that Brunckhorst, were he to accept the\nnew position, return to work by April 1 or his employment with the City would be\nterminated. Brunckhorst’s attorney replied on March 24 requesting: (1) that\nBrunckhorst return to his original position, (2) that he work a graduated return-to-\nwork schedule (e.g., work less than eight hours per day) for 120 days, and (3) that he\nbe allowed to work from home during those 120 days. Counsel further claimed that\n“Mr. Brunckhorst has previously informed the City of his limited mobility due to\nbilateral leg weakness which limits his mobility and renders Mr. Brunckhorst unable\nto negotiate stairs without assistance and/or to drive his motor vehicle.”\n\n A Work Ability Report from Brunckhorst’s physician was also included with\nthe letter, restricting him to four-hour work days with some physical limitations\nbeginning March 18 and ending on May 18. The physician did not limit Brunckhorst\nto working from home. The City replied that it would consider Brunckhorst’s\nrequests at the next City Council meeting on April 6 and that City Hall was ADA\naccessible.3 After the meeting, the City informed Brunckhorst that he could not\n\n 3\n There are no stairs at City Hall.\n\n -4-\n\freturn to his original position, nor could he work from home because he could not\nperform the essential functions of the new position from a remote location. The City\ninstead offered to allow Brunckhorst to work at City Hall four hours per day from\nApril 20 to May 18.\n\n On April 14, Brunckhorst’s attorney sent a letter accusing the City of refusing\nto engage in an interactive dialogue and claiming that the City had violated\nBrunckhorst’s rights as a disabled employee. Around this time, Brunckhorst\nrequested to meet with Johnson, the Mayor, and a City Council member.\nBrunckhorst’s request was declined, but the City offered a meeting with its staff.\nBrunckhorst did not accept the City’s invitation and did not return to work on April\n20. On April 24, the City received a letter from Brunckhorst’s attorney reciting the\nrequest to meet with Johnson, the Mayor, and a City Council member. At no time did\nBrunckhorst or his attorney request additional accommodations other than those\noutlined in the March 24 letter. On April 28, the City Council voted unanimously to\nterminate Brunckhorst’s employment. The City informed Brunckhorst of his\ntermination in a letter dated April 29.\n\n II.\n\n Brunckhorst claims that the City violated the ADA and MHRA because it\nfailed to offer reasonable accommodation and to engage in an interactive dialogue,\nit terminated his employment because of his disability, and it retaliated against him\nfor complaining of disability discrimination. We review de novo the grant of\nsummary judgment. Liljedahl v. Ryder Student Transp. Servs., Inc., 341 F.3d 836,\n840 (8th Cir. 2003). Summary judgment “is proper if the evidence, viewed in the\nlight most favorable to [Brunckhorst] and giving [him] the benefit of all reasonable\ninferences, shows there are no genuine issues of material fact and [the City] is entitled\nto judgment as a matter of law.” Id. at 840-41. Because “[c]laims arising under the\nMHRA are analyzed using the same standard applied to ADA claims,” we review the\n\n -5-\n\fclaims simultaneously. Philip v. Ford Motor Co., 328 F.3d 1020, 1023 n.3 (8th Cir.\n2003).\n\n A.\n\n Brunckhorst argues that the City failed to offer reasonable accommodation.\n“[I]f a party makes a reasonable accommodation claim, then we apply a modified\nburden-shifting analysis.” Fenney v. Dakota, Minn. & E.R.R. Co., 327 F.3d 707, 712\n(8th Cir. 2003). Because Brunckhorst claims that he could not perform the essential\nfunctions of his job without an accommodation, he must “make a facial showing that\nreasonable accommodation is possible.” Fjellestad v. Pizza Hut of Am., Inc., 188\nF.3d 944, 950 (8th Cir. 1999). “At that point, the burden of production shifts to [the\nCity] to show that it is unable to accommodate [Brunckhorst].” Id.\n\n As an initial matter, Brunckhorst was not entitled to return to the Senior\nAccountant position because he did not return to work prior to the expiration of his\nFMLA leave. See 29 U.S.C.A. § 2614(a)(1)(A)-(B) (requiring an employer to restore\nan employee to either his original position or an equivalent position upon return from\nFMLA leave). There was also no medical reason why Brunckhorst needed to be\nreinstated to his former position, as both positions were sedentary desk jobs.\nBrunckhorst points to an Equal Employment Opportunity Commission (EEOC)\n“Enforcement Guidance” document stating that an employer is required to hold open\nthe original position of an employee that has been granted leave as a reasonable\naccommodation unless the employer can demonstrate that holding open the position\nwould impose an undue hardship. The EEOC document, however, is not binding\nauthority. See Ctr. for Special Needs Tr. Admin., Inc. v. Olson, 676 F.3d 688, 701\nn.4 (8th Cir. 2012) (concluding that similar documents hold only persuasive value).\nBrunckhorst fails, then, to show that returning to his original position was a\nreasonable accommodation.\n\n\n\n -6-\n\f Brunckhorst’s request that he be allowed to work from home is not a\nreasonable accommodation in light of his testimony that he could work at City Hall\nbut that it “would have been easier” to work from home. We have held that an\nemployer is not required to accommodate an employee based on the employee’s\npreference. See Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d 1011,\n1019 (8th Cir. 2000) (noting that an accommodation need not be plaintiff’s preferred\nchoice but must only be reasonable). Further, Brunckhorst’s medical restrictions did\nnot state that he must work from home. Though Brunckhorst informed the City that\nhe could not drive on March 24, his doctor’s restrictions did not state that he was\nunable to drive nor did Brunckhorst clarify that he was unable to obtain transportation\nto City Hall. See Liljedahl, 341 F.3d at 842 (noting that an employer is required only\n“to accommodate known limitations so an employee can perform her job, but a\nrequested accommodation must relate to the limitation”). Brunckhorst later testified\nthat he requested to work from home because he would have episodic pain that\nrequired him to lie down and lift his legs. He did not inform the City of this,\nhowever, until after his termination. See id. (concluding that an employer is not\nlegally required to provide accommodation for unknown health problems). Instead,\nthe City’s proposed accommodation was consistent with the doctor’s decision that\nBrunckhorst be allowed to work four hours per day up to May 18, 2015.\n\n Brunckhorst also failed to make a facial showing that he could have performed\nthe essential functions of his job remotely. He admitted that he would be unable to\nperform certain IT functions of his original position remotely. As to his finance\nduties, Brunckhorst admitted that another employee would have to scan certain\ndocuments for him, a task he would have normally done at City Hall. He also\nadmitted that an employee would need to physically bring the payroll checks to his\nhouse. An employer “is not obligated to hire additional employees or reassign\nexisting workers to assist [an employee] in h[is] essential duties.” Fjellestad, 188\nF.3d at 950. Johnson testified that the City is a small organization and that the new\nposition required Brunckhorst’s presence at City Hall to cover for other staff as well\n\n -7-\n\fas to interact with the public. Working remotely was thus not a reasonable\naccommodation for Brunckhorst’s disability.\n\n B.\n\n Brunckhorst claims that the City eliminated his original position and terminated\nhim because of his disability. To establish a prima facie case of disability\ndiscrimination, Brunckhorst must show that “(1) [he] has a disability within the\nmeaning of the MHRA [and ADA], (2) [he] is qualified to perform the essential\nfunctions of h[is] job, with or without reasonable accommodation, and (3) [he]\nsuffered an adverse employment action because of h[is] disability.” Liljedahl, 341\nF.3d at 841. The employer then has to show a legitimate, nondiscriminatory reason\nfor the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S.\n792, 802 (1973). To prevail, the plaintiff must show that the defendant’s proffered\nreason is a pretext for discrimination. Id. at 804.\n\n Brunckhorst has not presented evidence showing that the City eliminated his\nposition because of his disability or that the City terminated him because of his\ndisability. As set forth above, Brunckhorst was not entitled to come back to his\nposition after exhausting his FMLA leave. Moreover, because the evidence indicates\nthat the position was eliminated to increase the City’s efficiency, there is no inference\nof discrimination. With respect to the City’s offer of reassignment to a position with\nlower pay, “[a]n employer may reassign an employee to a lower grade and paid\nposition if the employee cannot be accommodated in the current position and a\ncomparable position is not available.” Cravens, 214 F.3d at 1019 (alteration in\noriginal) (citation omitted). Further, the City terminated Brunckhorst’s employment\nbecause he refused to return to work after the City had been negotiating with him for\nmonths. The evidence does not support an inference of discrimination, and\nBrunckhorst has thus not shown discriminatory termination.\n\n\n\n -8-\n\f C.\n\n Brunckhorst also claims that the City failed to engage in an interactive dialogue\nwith him. To establish such a claim, Brunckhorst must show: (1) that the City knew\nabout the employee’s disability, (2) that Brunckhorst requested accommodation or\nassistance for his disability, (3) that the City did not make a good faith effort to assist\nBrunckhorst in seeking accommodation, and (4) that Brunckhorst could have been\nreasonably accommodated but for the City’s lack of good faith. Id. at 1021.\n\n The district court correctly determined that no reasonable juror could conclude\nthat the City had failed to participate in the interactive process. Brunckhorst attempts\nto narrow the window of the interactive process to the last few days prior to his\ntermination and claims that the City offered him only one, take-it-or-leave-it\naccommodation. To the contrary, the record shows that the City engaged in an\ninteractive dialogue with Brunckhorst for months regarding his return to work.\nDuring that time, the City extended his leave multiple times, made multiple requests\nfor information regarding what accommodations he required, and offered\naccommodations consistent with his doctor’s restrictions. There is no genuine issue\nof material fact that the City engaged in anything but a good-faith interactive\ndialogue.\n\n D.\n\n Brunckhorst argues that the City terminated his employment because he\ncomplained of disability discrimination. “To prove a retaliation claim, a plaintiff\nmust show (1) that he or she engaged in statutorily protected activity; (2) an adverse\nemployment action was taken against him or her; and (3) a causal connection exists\nbetween the two events.” Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d\n903, 914 (8th Cir. 2006).\n\n\n\n -9-\n\f Brunckhorst fails to show any causal connection. He argues that the timing\nbetween his complaint of discrimination and his termination demonstrates temporal\nproximity sufficient to support an inference of causality. Brunckhorst claims that he\nfirst complained of discrimination in his attorney’s April 14, 2015, letter, dated\nfifteen days prior to his termination. Yet Brunckhorst admitted in his deposition that\nhe first complained that he was being discriminated against during the December 22,\n2014, meeting—four months prior to his termination. Throughout those four months,\nthe City continued communicating with Brunckhorst regarding his return to work and\ncontinued offering unpaid leave as a reasonable accommodation. Without more, the\nfour-month period between his first complaint of discrimination and his termination\nis not sufficient to establish causation through temporal proximity. See Noyes v. Am.\nTissue Servs. Found., 310 F. App’x 52, 53 (8th Cir. 2009) (per curiam) (deciding that\nthere was no causation when, without more evidence, “approximately four to five\nmonths separated [plaintiff’s] report and the adverse employment action”). Even if\nBrunckhorst had not complained of discrimination until April 14, 2015, a temporal\nconnection by itself is not sufficient to establish a causal connection. Bainbridge v.\nLoffredo Gardens, Inc., 378 F.3d 756, 761 (8th Cir. 2004). Instead, the City\nproceeded to work with Brunckhorst after that date. It did not terminate his\nemployment until he continuously rejected the City’s proposed accommodations and\ndid not return to work. His retaliation claim thus fails.\n\n The judgment is affirmed.\n _________________________\n\n\n\n\n -10-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364338/", "author_raw": "WOLLMAN, Circuit Judge."}]}	WOLLMAN	COLLOTON	BENTON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587085/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,425	Edward Keith DEMBRY, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee	Edward Dembry v. United States	2019-02-05	17-2849	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Wollman, Shepherd", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2849\n ___________________________\n\n Edward Keith Dembry\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: January 17, 2019\n Filed: February 5, 2019\n ____________\n\nBefore GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n Edward Keith Dembry appeals the district court’s1 order dismissing his petition\nto vacate his sentence under 28 U.S.C. § 2255. Following his conviction for\npossession of ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1), Dembry\n\n 1\n The Honorable John A. Jarvey, Chief Judge, United States District Court for\nthe Southern District of Iowa.\n\fwas sentenced as an armed career criminal to 265 months’ imprisonment. We\naffirmed his conviction and sentence on direct appeal. United States v. Dembry, 535\nF.3d 798 (8th Cir. 2008).\n\n In 2015, the Supreme Court ruled that the residual clause of the Armed Career\nCriminal Act (“ACCA”) was unconstitutionally vague.2 Johnson v. United States,\n135 S. Ct. 2551, 2557, 2563 (2015). Subsequently, the Court held that Johnson\nannounced a “new rule” that is retroactive on collateral review. Welch v. United\nStates, 136 S. Ct. 1257, 1264-65 (2016). As a result, in May 2016, we granted\nDembry authorization to file a successive § 2255 motion, in which he claimed that his\noriginal ACCA sentence relied on the residual clause and that his Illinois robbery\nconvictions do not qualify as violent felonies under the ACCA’s force clause.3 The\ndistrict court nevertheless concluded that Illinois robbery does qualify as a violent\nfelony under the force clause and dismissed the petition. Dembry appealed. We\nreview the denial of a § 2255 motion de novo. Hodge v. United States, 602 F.3d 935,\n937 (8th Cir. 2010).\n\n\n 2\n The ACCA applies to defendants convicted of being a felon in possession of\na firearm or ammunition who have three or more prior convictions for a “violent\nfelony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). When Dembry was\nsentenced in 2007, a violent felony included “any crime punishable by imprisonment\nfor a term exceeding one year” that (1) “has as an element the use, attempted use, or\nthreatened use of physical force against the person of another” (the elements clause\nor force clause); (2) “is burglary, arson, or extortion, [or] involves use of explosives”\n(the enumerated-offenses clause); or (3) “otherwise involves conduct that presents a\nserious potential risk of physical injury to another” (the residual clause). Id.\n§ 924(e)(2)(B) (2007).\n 3\n As the Supreme Court explained in Welch, it is not sufficient for a § 2255\nmovant to show that his original sentence relied on the unconstitutional residual\nclause. He must also show that his prior convictions do not qualify as violent felonies\nunder the ACCA’s force clause or enumerated-offenses clause, which remain\nconstitutional. See Welch, 136 S. Ct. at 1268.\n\n -2-\n\f After the parties submitted their briefs, the Government filed a motion to\nremand the case to the district court pursuant to Walker v. United States, 900 F.3d\n1012 (8th Cir. 2018). As relevant here, 28 U.S.C. § 2255(h) precludes a movant from\nbringing a successive petition unless it contains “a new rule of constitutional law,\nmade retroactive to cases on collateral review by the Supreme Court, that was\npreviously unavailable.” Section 2255(h) requires movants to pass through two gates\nbefore they are entitled to relief. See Bennett v. United States, 119 F.3d 468, 469-70\n(7th Cir. 1997). First, a panel of this court must certify that the movant has made a\nprima facie showing that the proposed claim relies on a retroactive new rule of\nconstitutional law. Menteer v. United States, 806 F.3d 1156, 1156 (8th Cir. 2015).\nSecond, we have emphasized that “the district court must not defer to this court’s\npreliminary determination in granting authorization,” but—“unencumbered by the\nstringent time limit that applies to the court of appeals”—must ensure that the\nmovant’s motion in fact relies on a retroactive new rule. Id. at 1156-57 (internal\nquotation marks omitted).\n\n In Walker, we considered what showing a movant must make under § 2255(h)\nwhen it is unclear whether the sentencing court relied on the residual clause or\nanother provision of the ACCA in designating him an armed career criminal.\nConfronting a circuit split on this question, “[w]e agree[d] with those circuits that\nrequire a movant to show by a preponderance of the evidence that the residual clause\nled the sentencing court to apply the ACCA enhancement.” Walker, 900 F.3d at\n1015. We rejected the contrary view that the “mere possibility that the sentencing\ncourt relied on the residual clause” was sufficient to meet the strict requirements for\na successive petition. Id.\n\n After clarifying the appropriate standard, we remanded the case to the district\ncourt to ascertain whether the sentencing court relied on the residual clause in\nsentencing Walker. Id. We believed the sentencing record, though sparse, might\nshed some light on the basis for Walker’s original ACCA sentence. Id. We also\n\n -3-\n\fthought it unwise to resolve the difficult question presented on the merits—whether\nWalker’s prior burglary convictions qualified as ACCA predicates under the\nenumerated-offenses clause—if Walker was unable to meet the threshold\nrequirements for bringing a successive motion in the first place. See id. at 1013.\n\n But the factors warranting remand in Walker are not present here. First,\nDembry conceded below that the sentencing record does not show that he was\nsentenced on the basis of the residual clause. While “the relevant background legal\nenvironment at the time of . . . sentencing” may nevertheless show that Dembry was\nsentenced pursuant to the residual clause, see Walker, 900 F.3d at 1015, we do not\nread Walker to require remand in cases which turn solely upon the background legal\nenvironment. Unlike a district court’s factual findings about the sentencing record,\nwhich we would review for clear error given the district court’s competence as\nfactfinder, its assessment of the background legal environment would depend upon\nlegal conclusions that would be reviewed de novo. See United States v. Driscoll, 892\nF.3d 1127, 1132-33 & n.3 (10th Cir. 2018) (“When we review a district court’s\nfinding that a sentencing court did not apply the residual clause to enhance a\ndefendant’s sentence, we review the factual determinations about the sentencing\nrecord for clear error and the legal conclusions about the relevant background legal\nenvironment de novo.”); Raines v. United States, 898 F.3d 680, 686 (6th Cir. 2018)\n(per curiam). In other words, Walker does not require that the district court examine\nthe background legal environment in the first instance if it serves no practical\npurpose.\n\n Nor do we need to decide whether Dembry’s original sentence relied on the\nresidual clause here. Because his Illinois robbery convictions qualify as violent\nfelonies under the force clause, Dembry cannot prevail on the merits even if he clears\nthe § 2255 gatekeeping requirements. He argues that, under Illinois law, only\nminimal force, struggle, or resistance is necessary to elevate theft to robbery and that\nthis degree of force is unable to satisfy the standard set forth in Curtis Johnson v.\n\n -4-\n\fUnited States, 559 U.S. 133, 140 (2010) (stating that “‘physical force’ means violent\nforce—that is, force capable of causing physical pain or injury to another person”).\nDembry also contends that the district court relied on an outdated, pre-Curtis Johnson\ncase in concluding otherwise. United States v. Dickerson, 901 F.2d 579, 584 (7th Cir.\n1990). But more recent cases indicate that Illinois robbery does qualify as a violent\nfelony under the force clause. See United States v. Swopes, 886 F.3d 668, 671 (8th\nCir. 2018) (en banc) (involving Missouri second-degree robbery and emphasizing that\n“there must be a realistic probability, not a theoretical possibility, that the statute\nencompasses conduct that does not involve use or threatened use of violent force”\n(internal quotation marks omitted)), petition for cert. filed, --- U.S.L.W. --- (U.S. Aug.\n30, 2018) (No. 18-5838); Shields v. United States, 885 F.3d 1020, 1024 (7th Cir.\n2018) (per curiam) (explaining that Illinois robbery is a violent felony under the force\nclause), petition for cert. filed, --- U.S.L.W. --- (U.S. June 15, 2018) (No. 17-9399).\nAnd if there were any doubt, the Supreme Court recently clarified that the force\nclause requires only “the amount of force necessary to overcome a victim’s\nresistance.” Stokeling v. United States, 139 S. Ct. 544, 555 (2019). Because Dembry\nconcedes that the Illinois Supreme Court requires some force or resistance to\ndistinguish robbery from theft, Stokeling confirms that his prior robbery convictions\nqualify as violent felonies under the force clause.\n\n In sum, because Dembry’s Illinois robbery convictions remain violent felonies\nunder the ACCA’s force clause, he cannot prevail on the merits even if he could show\nthat his original ACCA sentence relied on the residual clause. And we do not read\nWalker to require a remand that serves no practical purpose, either because the parties\nconcede the sentencing record will shed no light on the question, or because the\nmerits make clear that a movant is not entitled to relief. We therefore affirm the\n\n\n\n\n -5-\n\fdistrict court order dismissing Dembry’s petition to vacate his sentence, and we deny\nthe Government’s motion to remand.4\n ______________________________\n\n\n\n\n 4\n We likewise deny Dembry’s motion to proceed on original record and relevant\ndocuments.\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364678/", "author_raw": "GRUENDER, Circuit Judge."}]}	GRUENDER	WOLLMAN	SHEPHERD	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587425/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,798	MEIERHENRY SARGENT LLP, a South Dakota Limited Liability Partnership, Plaintiff-Appellee v. Bradley WILLIAMS; Kerry Williams, Defendants-Appellants	Meierhenry Sargent LLP v. Bradley Williams	2019-02-06	17-3768	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Shepherd, Stras", "parties": "", "opinions": [{"author": "STRAS, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3768\n ___________________________\n\n Meierhenry Sargent LLP, a South Dakota limited liability partnership\n\n Plaintiff - Appellee\n\n v.\n\n Bradley Williams; Kerry Williams\n\n Defendants - Appellants\n\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Sioux Falls\n ____________\n\n Submitted: November 13, 2018\n Filed: February 6, 2019\n ____________\n\nBefore COLLOTON, SHEPHERD, and STRAS, Circuit Judges.\n ____________\n\nSTRAS, Circuit Judge.\n\n This appeal presents a pair of issues arising out of a fee dispute between a law\nfirm, Meierhenry Sargent LLP, and two dissatisfied clients, Bradley and Kerry\nWilliams. After removing the firm’s lawsuit seeking to recover its unpaid fees to\nfederal court, the Williamses stayed the action to allow the unpaid-fees claim to\nproceed in arbitration.\n\f Once in arbitration, the Williamses raised numerous counterclaims and\ndefenses. The firm asked the district court for “relief from [the] stay” and a\n“declar[ation] [addressing] the scope of the arbitration proceedings.” In effect, what\nthe firm sought was a ruling that the Williamses had to pursue most of their\ncounterclaims in court, not in arbitration.\n\n The district court largely agreed with the firm’s request and issued an order\ndividing the counterclaims into two categories: those the Williamses could raise in\narbitration and those they could not. The Williamses ask us to reverse the part of\nthe order denying them the ability to arbitrate some of their counterclaims. We\nvacate one threshold finding that should have been left for the arbitrators to decide\nbut otherwise affirm.\n\n I.\n\n The first question is whether we can hear this appeal at all. The district court\nhas not yet entered a final judgment, see 28 U.S.C. § 1291, so the Williamses urge\nus to conclude that this is an appeal from “an interlocutory order granting . . . an\ninjunction against an arbitration,” which we have jurisdiction to review under 9\nU.S.C. § 16(a)(2). The trouble is that the district court did not say it was granting\nan injunction, nor does its order purport to enjoin the Williamses from arbitrating\ntheir claims. Rather, the order simply declares that certain counterclaims “are not\nbefore the [a]rbitration panel,” while others “remain in arbitration.”\n\n Our jurisdiction rests on the substance of the order, however, not simply what\nthe district court chose to call it. In Conners v. Gusano’s Chicago Style Pizzeria, for\nexample, we accepted an interlocutory appeal from an order that “prevent[ed] [a\nparty] from using its agreement with [other parties] to relocate a dispute to an arbitral\nforum.” 779 F.3d 835, 839 (8th Cir. 2015). We looked past the “label” affixed to\nthe order and emphasized its “injunctive effect,” which was to deny an “arbitral\n\n -2-\n\fforum” with “finality.” Id. (quoting Nordin v. Nutri/Sys., Inc., 897 F.2d 339, 342\n(8th Cir. 1990)); see also Gulfstream Aerospace Corp. v. Mayacamas Corp., 485\nU.S. 271, 287–88 (1988) (explaining that appellate jurisdiction extends to “orders\nthat have the practical effect of granting or denying injunctions and have serious,\nperhaps irreparable, consequence” (internal quotation marks and citation omitted)).\n\n To be sure, Conners relied on a general statutory grant of jurisdiction over\ninterlocutory orders “granting . . . injunctions,” rather than the arbitration-specific\nprovision we rely on here. 779 F.3d at 839 (citing 28 U.S.C. § 1292(a)(1)); cf.\nMcLaughlin Gormley King Co. v. Terminix Int’l Co., 105 F.3d 1192, 1193 (8th Cir.\n1997) (explaining that “appealability [in the arbitration context] is governed by the\nspecific appeal provisions” in 9 U.S.C. § 16). But other than the fact that the\narbitration-specific provision is narrower, the operational language in both statutes\nis the same: they allow appeals from interlocutory orders “granting” an injunction.\nSo labels are no more decisive under one than the other.\n\n We add that we are unsure what else the district court’s order could be, if not\nan injunction against arbitration. The firm asked the court to declare the scope of\nthe arbitration, but federal courts do not have that sort of general supervisory\nauthority over ongoing arbitration proceedings. Cf. 9 U.S.C. § 16 (listing various\norders a district court might issue in connection with an arbitration). To the contrary,\nthe most natural way the district court could have granted the relief the firm sought\nwas by enjoining the Williamses from arbitrating some of their counterclaims.\nAccordingly, we have appellate jurisdiction under 9 U.S.C. § 16(a)(2).\n\n II.\n\n We now turn to the question of whether the counterclaims enjoined by the\ndistrict court were arbitrable. When arbitrability depends on the interpretation of a\ncontract, as it does here, our review is de novo. See Lyster v. Ryan’s Family Steak\n\n\n -3-\n\fHouses, Inc., 239 F.3d 943, 945 (8th Cir. 2001). We review any underlying factual\nfindings, however, for clear error. See id.\n\n The fee dispute arose out of work the firm did in connection with a proposed\noil pipeline across the Williamses’ property in South Dakota. In their view, the firm\nneglected and mishandled their case from the beginning and ignored their\ninstructions regarding negotiations to settle a condemnation action brought by the\ncompany seeking to build the pipeline. They officially ended the representation once\nthey learned that a trial had been scheduled for dates the firm was reportedly\nunavailable, which they took to mean that the firm had effectively withdrawn and\nwas leaving them “on their own to deal with the trial themselves.”\n\n In response to the firm’s efforts to get paid for its work, the Williamses\nattempted to raise the following counterclaims in the arbitration, all under South\nDakota law: breach of contract, anticipatory breach of contract, estoppel, forfeiture,\nnegligence, breach of fiduciary duty, deceit, and defamation. They also sought a\ndeclaration that they did not owe money to the firm.\n\n The district court ruled that the Williamses could not arbitrate part of their\nbreach-of-contract claim; their negligence and breach-of-fiduciary-duty claims to\nthe extent they sought to recover damages; and their anticipatory-breach, deceit, and\ndefamation claims. The Williamses argue that the court should have allowed each\nof these claims to proceed in arbitration.1\n\n\n 1\n We reject the Williamses’ repeated characterization of the district court’s\norder as allowing the arbitrators to rule on all of their counterclaims just to dismiss\nthem. The order simply recognized that arbitrators, like courts, can dismiss claims\nwithout prejudice when they have no power to decide them. Such a dismissal, if it\nhappens, will have no preclusive effect if the Williamses later seek to litigate their\nnon-arbitrable counterclaims—something the district court itself recognized when it\nstated that they could “be tried before [the c]ourt.” Cf. Dakota, Minn. & E. R.R. v.\n\n -4-\n\f The question is whether the Williamses’ counterclaims are within the scope\nof what the parties agreed to arbitrate. This is, at heart, a matter of contract\ninterpretation. See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682\n(2010). The relevant portion of the parties’ fee agreement provides:\n\n FEE ON TERMINATION. If Client terminates Firm’s employment\n before conclusion of the case without good cause, Client shall pay Firm\n a fee and expenses based on the fair and reasonable value of the services\n performed by Firm before termination. If any disagreement arises\n about the termination fee, the client may choose two persons from a\n service profession, and the firm may choose one person. The firm will\n be bound by a majority decision of the three persons as to a fair fee. If\n the Firm terminates the representation, then it shall receive no fee or\n expenses.\n\nThis provision is narrow, so all we need to do is determine whether the agreement,\nreasonably read, “cover[s] the dispute[s] at hand.” Lipton-U. City, LLC v. Shurgard\nStorage Ctrs., Inc., 454 F.3d 934, 937 (8th Cir. 2006); see also 3M Co. v. Amtex\nSec., Inc., 542 F.3d 1193, 1198–99 (8th Cir. 2008) (discussing the treatment of broad\narbitration clauses and how they differ from narrower ones).\n\n Under the contract, the obligation to arbitrate applies to “disagreement[s] . . .\nabout the termination fee.” A disagreement about the termination fee means a\ndispute about what fee, if any, the firm is entitled to receive for its work. The\ncounterclaims the district court enjoined do not fit this definition. Rather than\nseeking to establish that the Williamses should pay a lower fee than the firm\nrequested, or no fee at all, the counterclaims seek an award of damages from the\nfirm. Those counterclaims that remain in the arbitration, by contrast, generally do\n\n\nAcuity, 720 N.W.2d 655, 659–60 (S.D. 2006) (describing the doctrines of collateral\nestoppel and res judicata under South Dakota law).\n\n -5-\n\fnot. Rather, they invoke the firm’s alleged misconduct as a basis to deny a\ntermination fee altogether or to reduce the amount the Williamses owe.2\n\n To allow all the counterclaims to proceed to arbitration, as the Williamses\nurge, would be inconsistent with the parties’ agreement. The Williamses emphasize\nthat their claims are “based on” their fee dispute with the firm and arise out of the\nsame underlying facts. But the language in the agreement is narrow; it requires\narbitration only of disagreements about the termination fee, not disputes arising out\nof or “based on” a fee dispute.\n\n The Williamses also insist that the district court should have ignored the\nremedies they requested in deciding the arbitrability question. According to the\nWilliamses, what remedies are available is a question for the arbitrators, not the\ncourt. Cf. Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 899 (2d Cir.\n2015) (“[W]hen the parties have agreed to submit a dispute to arbitration, a court\nmay [not] enjoin a party from seeking a particular remedy in arbitration [even] if, in\nthe court’s assessment, that remedy would have no basis in the parties’ agreement.”).\nIt is true that arbitrability generally does not depend on the remedy sought, but that\nis because arbitration clauses, especially broad ones, often do not say anything about\nthe available remedies. But here, the fee agreement ties arbitration to a particular\nremedy available to the firm: recovery of the termination fee. So it is logical—\nindeed, necessary—to determine what the counterclaims seek. If what they seek is\nto reduce or eliminate the money the Williamses owe to the firm, the claims are\narbitrable; if they seek something else—like money from the firm—they are not.\n\n\n\n 2\n The only exception is the breach-of-contract claim, which still seeks damages\neven though the district court excised portions of it from the arbitration. The firm\ndid not file a cross-appeal, however, and the Williamses argue the court has allowed\nthe parties to arbitrate too little, not that it has made them arbitrate too much, so we\nneed not decide whether the court erred by allowing the breach-of-contract claim (or\nany of the others) to proceed.\n -6-\n\f We do agree with the Williamses on one point, though. Before reaching the\nquestion of whether the counterclaims were arbitrable, the district court should not\nhave decided that the Williamses terminated the relationship. This finding\nestablished one of the two conditions for the firm to recover a termination fee, the\nother being that the termination was not for good cause. Yet the fee agreement treats\nboth conditions identically. So when the court recognized that the question of good\ncause was for the arbitrators to decide, it should have reached the same conclusion\nabout the termination question.\n\n III.\n\n We affirm the district court, except its finding that the Williamses, not the\nfirm, terminated the representation, and remand for further proceedings.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365051/", "author_raw": "STRAS, Circuit Judge."}]}	COLLOTON	SHEPHERD	STRAS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587798/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,799	Kristin M. JONES, an Individual, Plaintiff - Appellant v. DOUGLAS COUNTY SHERIFF'S DEPARTMENT, of Douglas County, Nebraska, a Political Subdivision of the State of Nebraska, Defendant - Appellee	Kristin Jones v. Douglas County Sheriff's Dept.	2019-02-06	17-3196	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3196\n ___________________________\n\n Kristin M. Jones, an individual\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Douglas County Sheriff’s Department, of Douglas County, Nebraska, a political\n subdivision of the State of Nebraska\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Nebraska - Omaha\n ____________\n\n Submitted: November 14, 2018\n Filed: February 6, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n The sheriff’s department of Douglas County decided not to reinstate Kristin M.\nJones. She sued Douglas County, alleging retaliation and sex, pregnancy, and\ndisability discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42\nU.S.C. §§ 2000e-2 and 2000e-3; the Americans with Disabilities Act, 42 U.S.C. §\n12101-12213; and the Nebraska Fair Employment Practice Act (NFEPA), Neb. Rev.\n\fStat. § 48-1101 to 1126. The district court1 dismissed her claims as time-barred.\nJones appeals the dismissal of her sex-discrimination claims. Having jurisdiction\nunder 28 U.S.C. § 1291, this court affirms.\n\n The complaint alleges the following facts. Jones was a deputy sheriff for\nDouglas County. She used prescription pain medication for migraine headaches and\nchronic neck and back pain. After her health deteriorated, she failed a remedial\nqualification for the Emergency Services Unit. Douglas County tried to remove her\nfrom that unit despite retaining a male with health issues. She later requested\naccommodations to stay in the Fugitive Warrants unit. The head of that unit denied\nher request, transferred her, and disciplined her for objecting to the transfer and\nrequesting accommodations. Midway through pregnancy, she requested light duty\nand Douglas County reassigned her to a desk position.\n\n Her pregnancy exacerbated her health conditions. She struggled to stay awake\nat work. At Douglas County’s request, the Nebraska State Patrol (with the Nebraska\nAttorney General) investigated Jones based on her trouble staying awake. The Patrol\nconcluded she had acquired a controlled substance through fraud. Charged with a\nfelony, she pled not guilty. Douglas County put her on administrative leave and\nterminated her one month later, in July 2014. A state court found her not guilty in\nJuly 2015.\n\n Four months later, Jones learned of an open position for deputy sheriff. Her\ncounsel sent a letter requesting that “Jones be reinstated with both back pay and the\nbenefits she was denied during her leave.” Douglas County denied her request on\nDecember 18, 2015. She filed a charge of discrimination with the Nebraska Equal\nOpportunity Commission (dual-filed with the Equal Employment Opportunity\n\n\n 1\n The Honorable Laurie Smith Camp, United States District Judge for the\nDistrict of Nebraska.\n\n -2-\n\fCommission). She alleged that by denying her reinstatement request, Douglas County\nretaliated and discriminated against her. The NEOC found no reasonable cause; the\nEEOC adopted its findings.\n\n Jones sued Douglas County. The district court dismissed. It found that her\nclaims were based on the facts of her termination, and that she could not “revive her\ntime-barred claims by demanding reinstatement and relying on Douglas County’s\nrefusal as a new, discrete discriminatory act.” Jones v. Douglas Cty. Sheriff’s Dep’t,\n2017 WL 6520690, at 3 (D. Neb. Sept. 13, 2017), citing Kaufman v. Perez, 745 F.3d\n521, 530 (D.C. Cir. 2014). She appeals the dismissal of her sex-discrimination claims,\narguing Douglas County’s failure to reinstate violated Title VII and the NFEPA.\n\n This court reviews de novo the grant of a motion to dismiss, accepting “the\nallegations contained in the complaint as true and mak[ing] all reasonable inferences\nin favor of the nonmoving party.” Martin v. Iowa, 752 F.3d 725, 727 (8th Cir. 2014).\n“[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter,\naccepted as true, to state a claim for relief that is plausible on its face.” Wilson v.\nArkansas Dep’t of Human Servs., 850 F.3d 368, 371 (8th Cir. 2017) (alteration in\noriginal), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).\n\n Jones had to file a charge of discrimination within 300 days after the alleged\ndiscriminatory practice. 42 U.S.C. § 2000e-5(e)(1); Neb. Rev. Stat. § 48-1118(2);\nNational R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110–11 (2002) (a party\nmust file a timely charge “or lose the ability to recover for it”). She filed her charge\non May 26, 2016. Her termination is not within the 300-day window. The\nreinstatement denial is.\n\n Jones’s complaint and charge of discrimination allege Douglas County refused\nto reinstate her due to her sex. A reinstatement denial is a discrete employment action.\n See Parisi v. Boeing Co., 400 F.3d 583, 586 (8th Cir. 2005) (“[R]efusals to hire or\n\n -3-\n\frehire constitute discrete employment actions.”). It may be independently\ndiscriminatory. See Morgan, 536 U.S. at 113 (Past acts of discrimination do “not bar\nemployees from filing charges about related discrete acts so long as the acts are\nindependently discriminatory and charges addressing those acts are themselves timely\nfiled.”); Kirklin v. Joshen Paper & Packaging of Ark. Co., 911 F.3d 530, 535–36\n(8th Cir. 2018) (analyzing failure-to-rehire claim separate from time-barred claims\nrelated to plaintiff’s employment, including discriminatory layoff); Kaufman, 745\nF.3d at 529–30 (noting a terminated employee cannot revive a time-barred claim\n“simply by asking, ‘Am I still fired?’”, but might bring an actionable failure-to-\nreinstate claim as “an independent discriminatory act” where there is “uncertainty\nregarding the initial adverse action” or “disparate treatment or bias in the\nreinstatement process”). See generally Josephs v. Pacific Bell, 443 F.3d 1050, 1060\n(9th Cir. 2006) (joining the First, Third, Fourth, Tenth, and Eleventh circuits in\n“expressly recogniz[ing] discriminatory failure to reinstate as a separately actionable\nclaim”).\n\n Jones bases her Title VII claim solely on disparate treatment. To establish a\nprima facie case, she “must show that she is a member of a protected class who was\nqualified for but was denied reinstatement, while a similarly situated employee outside\nof her protected class . . . was reinstated.” Jones v. Frank, 973 F.2d 673, 676 (8th\nCir. 1992). See Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994)\n(using Jones elements where plaintiff “alleged discriminatory refusal to reinstate\nbased upon a theory of disparate treatment”). She alleges that—on information and\nbelief—“the open position was filled with a male candidate.” Jones did not plead any\nfacts showing that candidate was similarly situated or went through a reinstatement\nprocess. Her threadbare allegation does not survive a motion to dismiss. See Hager\nv. Arkansas Dep’t of Health, 735 F.3d 1009, 1015 (8th Cir. 2013) (holding plaintiff\nfailed to state a § 1983 claim for gender discrimination where she made a “conclusory\nassertion that she was discharged under circumstances similarly situated men were\n\n\n\n -4-\n\fnot” and failed to “allege facts showing that similarly situated employees were treated\ndifferently”). Her claim fails under Title VII.\n\n Her NFEPA claim, mirroring her Title VII claim, likewise fails. See Edwards\nv. Hiland Roberts Dairy Co., 860 F.3d 1121, 1124 n.3 (8th Cir. 2017) (“We analyze\ndiscrimination claims under the NFEPA by applying the same analysis for\ndiscrimination claims under Title VII.”); Al-Zubaidy v. TEK Indus., Inc., 406 F.3d\n1030, 1040 (8th Cir. 2005) (noting plaintiff “would enjoy no greater success” with his\ndiscrimination and harassment claims under the NFEPA where the same claims failed\nunder Title VII); Knapp v. Ruser, 901 N.W.2d 31, 43 (Neb. 2017) (“[T]he NFEPA is\npatterned after federal Title VII,” and Nebraska courts “look to federal court decisions\nconstruing Title VII for guidance with respect to the NFEPA.”).\n\n ******\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365052/", "author_raw": "BENTON, Circuit Judge."}]}	BENTON	BEAM	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587799/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,800	CITIMORTGAGE, INC., Plaintiff-Appellant v. PLATINUM HOME MORTGAGE, CORP., Defendant-Appellee	CitiMortgage, Inc. v. Platinum Home Mortgage, Corp.	2019-02-06	17-3158	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Melloy, Stras", "parties": "", "opinions": [{"author": "MELLOY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3158\n ___________________________\n\n CitiMortgage, Inc.\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Platinum Home Mortgage, Corp.\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: September 26, 2018\n Filed: February 6, 2019\n ____________\n\nBefore SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.\n ____________\n\nMELLOY, Circuit Judge.\n\n Plaintiff CitiMortgage, Inc. (“CitiMortgage” or “CMI”), a purchaser and\nreseller of mortgage loans, sued Defendant Platinum Home Mortgage, Corp.\n(“Platinum”), an originator and seller of mortgage loans. CitiMortgage alleged\nPlatinum breached a contract by failing to repurchase seven allegedly defective loans\nafter CitiMortgage demanded repurchase by sending multiple notices to Platinum for\neach loan. The district court granted summary judgment for Platinum, holding\n\fCitiMortgage failed to satisfy a condition precedent contained in the agreement by\nfailing to prescribe a time within which Platinum could correct or cure the alleged\ndefects. Because we conclude CitiMortgage adequately and substantially complied\nwith the contract (which neither specified a form of notice nor indicated that the\nprescription of a time for cure had to be contained within the notice), we reverse.\n\n I. Background\n\n Platinum originated mortgage loans. CitiMortgage bought approximately 750\nloans from Platinum for more than $140 million. This case involves seven of those\nloans (valued around $1 million). CitiMortgage had resold the loans at issue in this\ncase to Fannie Mae but was forced by Fannie Mae to repurchase the loans due to\nPlatinum’s alleged failures to comply with underwriting standards.\n\n The agreement between Platinum and CitiMortgage was a February 13, 2004\nagreement supplemented with an October 14, 2004 addendum. The addendum\naddressed the delegation of underwriting/loan-origination authority to Platinum and\nwas added years before loan origination for the seven loans at issue in this case.\nRelevant to the present case, the addendum purported to “add” terms to an existing\n“Section 11” of the original agreement. By the time the loans at issue in the present\ncase were originated and sold, the underlying agreement between CitiMortgage and\nPlatinum was one integrated agreement. Although we refer to the agreement and to\nthe addendum when identifying specific sources of contractual terms, there is only\none integrated agreement at issue in this case.\n\n Pursuant to the agreement, CitiMortgage possessed discretion to determine if\na loan under the agreement was defective. This discretion included the right to\ndetermine if Platinum had breached the standards applicable for underwriting the\nloans and to determine if CitiMortgage itself was required to repurchase a loan it had\nresold to a third party (such as Fannie Mae). This discretion was broad in that it was\n\n -2-\n\fsubject to no express limitations and was identified as CitiMortgage’s “sole and\nexclusive discretion.”\n\n The contract provided that Platinum was to be afforded an opportunity to\ncorrect or cure an alleged defect and that, absent correction or cure to CitiMortgage’s\n“complete satisfaction,” Platinum could be required to repurchase the loan.\nMoreover, if CitiMortgage itself was required to repurchase a loan after sale to a third\nparty, CitiMortgage could assert the fact of that third party’s demand for repurchase\nas grounds to demand Platinum, in turn, repurchase that same loan.\n\n The material contract provisions of the original agreement (with emphasis\nadded) are as follows:\n\n 11. CURE OR REPURCHASE\n\n If CMI [CitiMortgage], in its sole and exclusive discretion, determines\n any Loan purchased pursuant to this Agreement:\n\n (i) was underwritten and/or originated in violation of any term,\n condition, requirement or procedure contained in this Agreement\n or the CMI Manual in effect as of the date CMI purchased such\n Loan;\n (ii) was underwritten and/or originated based on any materially\n inaccurate information or material misrepresentation made by the\n Loan borrower(s), Correspondent, Correspondent’s directors,\n officers, employees, agents, independent contractors and/or\n affiliates, or any other party providing information relating to said\n Loan;\n (iii) was or is capable of being rescinded by the applicable\n borrower(s) pursuant to the provisions of any applicable federal\n (including but not limited to the Truth-In-Lending Act) or state\n law or regulation;\n (iv) must be repurchased from any secondary market investor\n (including but not limited to the Fannie Mae, Freddie Mac, FHA,\n\n -3-\n\f VA, HUD or Government National Mortgage Association) due to\n a breach by Correspondent of any representation, warranty or\n covenant contained in this Agreement or the CMI Manual or a\n failure by Correspondent to comply in all material respects with\n the applicable CMI Manual terms, conditions, requirements and\n procedures; and/or\n (v) was subject to an Early Payment Default (as defined in the CMI\n Manual), an Early Payoff (as defined in the CMI Manual) or any\n other payment related defect (as defined in the CMI Manual)\n\n Correspondent will, upon notification by CMI, correct or cure such\n defect within the time prescribed by CMI to the full and complete\n satisfaction of CMI. If, after receiving such notice from CMI,\n Correspondent is unable to correct or cure such defect within the\n prescribed time, Correspondent shall, at CMI’s sole discretion, either (i)\n repurchase such defective Loan from CMI at the price required by CMI\n (“Repurchase Price”) or (ii) agree to such other remedies (including but\n not limited to additional indemnification and/or refund of a portion of\n the Loan purchase price) as CMI may deem appropriate. If CMI\n requests a repurchase of a defective Loan, Correspondent shall, within\n ten (10) business days of Correspondent’s receipt of such repurchase\n request, pay to CMI the Repurchase Price by cashier’s check or wire\n transfer of immediately available federal funds . . . .\n\n Correspondent agrees and acknowledges that the provisions of this Sec.\n 11 do not, in any way, eliminate, diminish or impair Correspondent’s\n indemnification obligations contained in Sec. 10.\n\nAnd, in the addendum, the additional provisions for Section 11 state:\n\n Correspondent expressly agrees that it shall underwrite each Loan in\n conformity with the applicable underwriting criteria of CMI. If an audit\n by CMI on any Loan reveals that it was underwritten in violation of the\n applicable CMI underwriting criteria, Correspondent will, not later\n than thirty (30) days after receipt of written notice from CMI,\n repurchase the Loan at the Repurchase Price or provide CMI with\n written evidence as to why Correspondent believes such underwriting\n\n -4-\n\f criteria was not violated. If, after reviewing Correspondent’s written\n evidence, CMI, in its sole and independent discretion, determines the\n Loan was not originated in accordance with the applicable\n underwriting criteria, Correspondent will, not later than thirty (30) days\n after receiving further written notice from CMI, repurchase the Loan\n at the Repurchase Price specified in the Agreement, Manual and/or\n applicable Bulletin(s).\n\n Here, after Fannie Mae informed CitiMortgage that there were defects in the\nmortgages, CitiMortgage sent three letters to Platinum for each of the seven loans\n(twenty-one letters in total).\n\n As to each separate loan, a first letter: (1) identified a “potential breach” and\ndescribed that breach; (2) invited Platinum to investigate the matter and send a\n“written response along with any supporting documentation” within “thirty days”;\nand (3) notified Platinum that if CitiMortgage did not find the resolution satisfactory,\nrepurchase may be required.\n\n As to each loan, after more than the expressly identified thirty days had passed,\nCitiMortgage sent a second letter describing the breach and stating repurchase was\nrequired. Again, CitiMortgage cited a deadline of thirty days. CitiMortgage’s second\nletter as to each loan expressly stated, “Please contact me upon receipt of this letter\nto confirm the repurchase date on or before thirty (30) days from the date of this\nletter.”\n\n As to each loan, again after more than the expressly identified thirty days had\npassed, CitiMortgage sent a third letter. In the third letter as to each loan,\nCitiMortgage again described the breach and stated repurchase was required and\nneeded to be confirmed “on or before thirty (30) days from the date of this letter.”\nFor several of the loans, CitiMortgage made express reference to having received\ndocumentation or explanation from Platinum in response to earlier letters and having\n\n\n -5-\n\fdetermined such responses were not satisfactory. For other loans, CitiMortgage\nexpressly noted that Platinum had not responded.\n\n More than two years after sending the last letter for the seventh loan,\nCitiMortgage filed the present suit. Platinum moved for summary judgment, arguing\n(1) CitiMortgage could not force repurchase because the agreement had been\nterminated; (2) CitiMortgage could not force repurchase because CitiMortgage had\nalready foreclosed on the underlying mortgage loans; and (3) CitiMortgage failed to\nsatisfy a condition precedent in that CitiMortgage did not prescribe a time for cure\nor correction.\n\n The district court addressed only the third issue. The district court concluded\nCitiMortgage did not provide adequate notice because CitiMortgage did not expressly\n“prescribe” a time for Platinum to correct or cure the alleged defects. In reaching this\nconclusion, the district court determined that the agreement placed a condition\nprecedent upon Platinum’s repurchase duty. According to the district court, the\nphrase “upon notification by CMI, correct or cure such defect within the time\nprescribed by CMI to the full and complete satisfaction of CMI,” meant that unless\nand until CitiMortgage expressly told Platinum a date by which it must correct or cure\na defect, Platinum could not know when the window for cure had closed and,\ntherefore, could not be forced to repurchase a loan.\n\n The district court did not view the letters’ repeated and express references to\nthirty-day response times as satisfying the condition precedent. As to the first set of\nseven letters, the district court concluded they did not satisfy the notice provisions\nbecause each referenced a “possible” breach, indicating CitiMortgage had not yet\nconcluded a defect, in fact, existed. As to this point, the district court also found\nCitiMortgage had effectively conceded that the first set of letters did not give notice\nof the alleged defects because, in briefing to the district court, CitiMortgage stated,\n“It is in the [second set of letters], not the [first set of letters], where [CitiMortgage]\n\n -6-\n\fstates that it has determined the loan is defective and specifies the defect.”\nCitiMortgage contested any such concession.\n\n Regarding the second set of letters, the district court noted the parties’\ndisagreement as to whether CitiMortgage’s failure to use the terms “correct” or “cure”\nwas fatal to CitiMortgage’s argument. The district court concluded it need not\nresolve the issue because the letters failed to expressly prescribe a time for cure or\ncorrection.\n\n Finally, the district court held the addendum’s reference to a thirty-day\nresponse time did not serve as the prescription of a time for cure or correction. The\ndistrict court, instead, concluded (1) the thirty-day period set forth in the addendum\napplied to an appeal process rather than to the opportunity to cure, and (2) the thirty-\nday period referenced in the addendum could only be triggered following a formal\naudit. In this respect, the district court acknowledged that another district court judge\nin the same district had reached the opposite conclusion on indistinguishable facts.\nSee Citimortgage, Inc. v. Chicago Bankcorp, Inc., No. 4:14CV01278, 2016 WL\n3958594 (E.D. Mo. July 22, 2016). In fact, the district court described the court’s\nanalysis in the other case as “conflat[ing]” the procedures in the original agreement\nand in the addendum. The district court in the current case then concluded, “The\nCourt sees no reason why it should excuse CMI from express compliance with the\nnotice and cure requirements set forth in the Agreement which CMI itself drafted.”\n\n CitiMortgage filed a motion to reconsider, arguing that the unexpected\nrejection of the other district judge’s position in the similar case from the same\ndistrict took CitiMortgage by surprise. With the motion to reconsider, CitiMortgage\nsought to supplement the record with a large volume of additional materials.\nPlatinum contested the motion and argued CitiMortgage should not be allowed to\nsupplement the record. The district court summarily denied the motion.\n\n\n\n -7-\n\f II. Discussion\n\n We review the grant of summary judgment de novo. Torgerson v. City of\nRochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Here, the language of the\nagreement is undisputed and the letters, as described above and as quoted in the\ndistrict court’s opinion, are in the record. Missouri law applies, and in Missouri,\n“[t]he interpretation of a written contract is a matter of law for the court.” Union\nElec. Co. v. Sw. Bell Tel. L.P., 378 F.3d 781, 786 (8th Cir. 2004). Our de novo\nreview of contract interpretation as a matter of law includes the determination of\nwhether a written contract imposes a condition precedent. Id. at 788.\n\n As an initial matter, we question whether the prescription of a time for\nPlatinum to correct or cure an alleged breach is a condition precedent. In Missouri,\nconditions precedent are disfavored. See James E. Brady & Co. v. Eno, 992 F.2d 864,\n869 (8th Cir. 1993) (“Courts should not construe contract provisions to be conditions\nprecedent ‘unless required to do so by plain, unambiguous language or by necessary\nimplication.’” (quoting Kansas City S. Ry. v. St. Louis–San Francisco Ry., 509\nS.W.2d 457, 460 (Mo. 1974))). As such, where it is not necessary to interpret a\ncontract provision as establishing a condition precedent, the court should not do so.\nSee id. at 869–70 (finding a contract provision did not create a condition precedent\nwhere “an alternative construction of the repayment language [was] clearly\nreasonable”). Here, the sophisticated parties undeniably were aware of their rights\nand obligations. The right to attempt cure is plain from the face of the agreement, and\nthe notice provisions surrounding that right do not unambiguously set forth the\ndesignation of a temporal limitation as a condition precedent to CitiMortgage’s right\nto force repurchase. Union Elec., 378 F.3d at 788 (“Had the parties wished to require\ncompliance with [a safety code] as a precondition to liability . . . they could have said\nso.”).\n\n\n\n\n -8-\n\f Platinum argues the notice provision may only be interpreted as a protection\nfor Platinum strictly constraining CitiMortgage’s right to force repurchase. The\nnotice provision, however, contains no language suggesting the right to force\nrepurchase is conditional. The notice provision, of course, indicates a time for\nattempting cure—after Platinum is made aware of the defect. The contested provision\nalso empowers CitiMortgage to place a limit upon that time. If CitiMortgage elects\nnot to exercise its right by failing to limit that time period, and instead sends multiple\nletters and delays before instituting suit, CitiMortgage has simply elected not to\nexercise its own right. In effect, the time aspect of the notice provision appears to\ndefine a right for CitiMortgage rather than a condition precedent meant to protect\nPlatinum. As such, even if CitiMortgage had not chosen to include time limits in its\nmany letters, its failure to do so should not be viewed as wholly eliminating\nPlatinum’s obligation to repurchase defective loans.\n\n Regardless, we need not decide the issue of whether the contested provision\nimposes a condition precedent. Even if the prescription of a time for cure were a\ncondition precedent, CitiMortgage’s three letters concerning each individual loan\nsufficed to satisfy CitiMortgage’s notice obligations. Each of the three letters for\neach of the seven loans listed a thirty-day window for action. And, as to each\nindividual loan, the second and third letters did not arrive unannounced and in a\nvacuum. Therefore, as to each loan, the corresponding three letters must be viewed\ncollectively. Collectively, each set of three letters identified a defect, invited written\nresponses with supporting documentation, and identified a deadline.\n\n Critically, nothing in the original agreement states that the time “prescribed”\nfor cure or correction had to be in writing, much less wholly communicated within\none individual writing. In fact, the agreement does not indicate what form\nCitiMortgage’s notice of defect or prescription of time for cure or correction had to\ntake. The agreement also fails to indicate that CitiMortgage must use specific\ntriggering words such as “cure or correct.” In short, the form of notice required by\n\n -9-\n\fan agreement depends upon the agreement, and the clear and repeated notice provided\nin this case satisfied the vague requirements of the agreement. See Gray v. Bicknell,\n86 F.3d 1472, 1479 (8th Cir. 1996) (“Under Missouri law, the nature of notice\nrequired by contract depends upon the provisions of that contract.”). The parties in\nthis case are sophisticated and the right to cure is plain on the face of the agreement.\nPlatinum was put on notice of alleged defects, and given repeated thirty-day periods\nfollowed by an extensive delay prior to suit that provided more than adequate\nopportunity to attempt cure. Id. (“[Missouri law] does not require that notice of\nbreach, to be effective, must be the clearest statement possible.”); Schaefer v. Rivers,\n965 S.W.2d 954, 957 (Mo. Ct. App. 1998) (noting that unless a contract expressly\nspecifies otherwise, “substantial compliance” is sufficient).\n\n The parties present several other arguments, many of which involve vigorous\ndisputes as to whether arguments were timely made below, properly supported, and\nadequately preserved. For example, CitiMortgage asserts arguments addressing: (1)\nactual notice; (2) futility; (3) lack of harm; and (4) use of the addendum’s thirty-day\nperiod as the prescribed period for cure. Given our resolution of the case as set forth\nabove, we need not address these issues.\n\n We reverse the judgment of the district court and remand for further\nproceedings consistent with this opinion.1\n\n ______________________________\n\n\n 1\n We deny the pending motion to unseal the appellant’s addendum. We do not\naddress the grounds for summary judgment raised below and not addressed by the\ndistrict court, namely, Platinum’s arguments that CitiMortgage could not force\nrepurchase because the agreement had been terminated and because CitiMortgage had\nforeclosed on the properties securing the loans. We leave to the district court in the\nfirst instance the resolution of these issues and any related issues concerning the state\nof the record.\n\n -10-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365053/", "author_raw": "MELLOY, Circuit Judge."}]}	SMITH	MELLOY	STRAS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587800/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,279	UNITED STATES of America Plaintiff - Appellee v. Miguel ZARCO Defendant - Appellant	United States v. Miguel Zarco	2019-02-07	17-3434	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3434\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Miguel Zarco\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of North Dakota - Fargo\n ____________\n\n Submitted: October 19, 2018\n Filed: February 7, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n A jury convicted Miguel Zarco of conspiracy to possess with intent to\ndistribute and to distribute a controlled substance. The district court1 sentenced him\n\n\n 1\n The Honorable Ralph R. Erickson, then United States District Judge for the\nDistrict of North Dakota, now Circuit Judge for the United States Court of Appeals\nfor the Eighth Circuit.\n\fto the mandatory minimum sentence of 120 months’ imprisonment and five years of\nsupervised release. Zarco appeals his conviction, claiming for the first time on appeal\nthat it was reversable error for the district court not to prohibit the prosecutor from\nreferring to the charged crime as a “historical conspiracy” during trial. Zarco argues\nthat the prosecutor’s use of that phrase created a structural error that violated his due\nprocess rights. But even if the error was not structural, he maintains that reversal is\nwarranted because the error infected the trial with unfairness. We affirm.\n\n The Government presented evidence at trial that Zarco conspired to distribute\nsubstantial quantities of methamphetamine in California, Utah, and North Dakota.\nDuring opening statements, the prosecutor said that “in North Dakota the majority of\nour drug conspiracies are historical conspiracies. They are conspiracies where we\nlook back in time usually from some triggering event that happens.” He continued\nthat “[t]hese cases are largely based on testimony . . . . the drugs aren’t there anymore\n. . . . [b]ut we always have the testimony. So that’s why they’re so heavy on the\ntestimony stuff.” Zarco’s attorney responded in her opening statement: “The\ngovernment uses the term ‘historical conspiracy’ when they have a case that’s based\non little to no physical evidence. That’s what they call it. Their case is based solely\non the statements . . . of other individuals, individuals that I will submit to you have\nbias.” She added that the jurors would not hear any evidence that Zarco was found\nin possession of any controlled substances or that law enforcement conducted any\nsurveillance or orchestrated any controlled buys from him. The Government then\ncalled twelve witnesses.\n\n During closing arguments, the prosecutor again referenced the historical nature\nof the conspiracy, noting that by the time law enforcement became involved, the\nconspirators “had pretty much stopped dealing with each other a month or so earlier.”\nLaw enforcement “had to try and go back in time and put the case together, and when\nyou do that you gotta look at the testimony of these witnesses.” With regard to the\nelements of a conspiracy, the prosecutor said that the “judge has advised you of those\nalready and these are pretty much straight out of the Court’s instructions.” After a\n\n -2-\n\fdiscussion of how the testimonial evidence fit those elements, he concluded that the\njury would “find beyond a reasonable doubt that the defendant is guilty of this\noffense.” At no point during trial did Zarco’s attorney object to the prosecutor’s use\nof the phrase “historical conspiracy.”\n\n “The failure to object to any error, even a structural one, leaves the appellate\ncourt with the power to notice only plain error.” Rahn v. Hawkins, 464 F.3d 813, 819\n(8th Cir. 2006), abrogated on other grounds by Avichail ex rel. T.A. v. St. John's\nMercy Health Sys., 686 F.3d 548, 552 (8th Cir. 2012); see also United States v.\nJohnson, 520 U.S. 461, 466-67 (1997) (applying plain-error review to an alleged\nstructural error). Plain-error review requires an appellant to demonstrate that “(1)\nthere is an error; (2) the error is clear and obvious, rather than subject to reasonable\ndispute; (3) the error affected the appellant’s substantial rights, which in the ordinary\ncase means it affected the outcome of the district court proceedings; and (4) the error\nseriously affects the fairness, integrity or public reputation of judicial proceedings.”\nUnited States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks\nomitted). Because there was no error, Zarco cannot establish the first prong, and we\nneed not discuss the other three. We also need not determine whether the alleged\nerror was structural. See Charboneau v. United States, 702 F.3d 1132, 1138 n.3 (8th\nCir. 2013) (concluding that appellant’s emphasis on an alleged structural error did not\naffect its plain-error inquiry because “[w]hether an error can be properly\ncharacterized as ‘structural’ has nothing to do with plain error review”).\n\n Zarco claims that the prosecutor improperly used “historical conspiracy” as a\n“term of art,” rather than a “mere descriptor.” He argues that “[t]his is a problem\nbecause terms of art in the law matter—they alter burdens of proof, presumptions,\njurors’ duties and expectations.” He also alleges that the prosecutor “created a crime”\nby advertising “‘historical conspiracy’ to the jury as a different kind of conspiracy\nthat could not be supported by the normal markers of proof that the actual crime of\nconspiracy has.”\n\n\n\n -3-\n\f But Zarco does not explain how the prosecutor’s use of the phrase “historical\nconspiracy” created a new crime or invited the jury to find him guilty under a relaxed\nburden or proof. To the contrary, both parties’ opening statements demonstrate that\nthey understood “historical conspiracy” to be a “mere descriptor” of a conspiracy that\nended before law enforcement began investigating and for which little physical\nevidence was available. The prosecutor said that “historical conspiracies” are\n“conspiracies where we look back in time” and result in “cases . . . largely based on\ntestimony” because “the drugs aren’t there anymore.” Zarco’s attorney reiterated this\ndefinition, telling the jury that “[t]he government uses the term ‘historical conspiracy’\nwhen they have a case that’s based on little to no physical evidence.” Thus, there was\nno confusion about what “historical conspiracy” meant. The prosecutor also relied\non the standard elements of conspiracy found in the district court’s unchallenged jury\ninstructions, undermining Zarco’s argument that he created a new crime. See United\nStates v. Pendleton, 832 F.3d 934, 944 (8th Cir. 2016) (“We presume that juries\nfollow a court’s instructions.”). The prosecutor’s statement during closing arguments\nthat the jury should “find beyond a reasonable doubt that the defendant is guilty of\nthis offense” similarly conflicts with Zarco’s claim that the prosecutor invited the jury\nto find him guilty by a lower burden of proof.\n\n We also note that federal courts, including our own, have used “historical\nconspiracy” or its analogue, “dry conspiracy,” as a descriptive phrase without any\nattendant legal significance. See, e.g., United States v. Pressley, 473 F. Supp. 2d\n1303, 1313-14 (N.D. Ga. 2006) (“[A] dry or historical conspiracy is one in which the\nonly evidence of the illegal drug activity is the testimony of others who recount,\nhistorically, such activities.”); United States v. Becerra, 435 F.3d 931, 937 (8th Cir.\n2006) (noting that a “conspiracy to distribute methamphetamine that is proved beyond\na reasonable doubt through the testimony of co-conspirators without physical\nevidence of controlled substance” is “a so-called ‘dry conspiracy’”); United States v.\nEl Herman, No. CR 04-4042-MWB, 2008 WL 835725, at *10 (N.D. Iowa Mar. 25,\n2008), aff’d, 583 F.3d 576 (8th Cir. 2009) (describing a conspiracy case without any\n\n\n -4-\n\fphysical evidence or exhibits as a “pure historical conspiracy”); Van Nguyen v.\nUnited States, 564 F. App’x 992, 993-94 (11th Cir. 2014) (per curiam) (describing\na narcotics offense as a “‘dry’ conspiracy because no drugs were seized, and the\ngovernment proved the existence of the narcotics through the testimony of . . . co-\nconspirators”).\n\n For all these reasons, the district court did not err by allowing the prosecutor\nto use the phrase “historical conspiracy” during trial. Because the district court did\nnot err, we need not consider whether any error was structural. We affirm Zarco’s\nconviction.\n\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365532/", "author_raw": "GRUENDER, Circuit Judge."}]}	SMITH	LOKEN	GRUENDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588279/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,281	UNITED STATES of America, Plaintiff - Appellee v. Carlos Kalier RODRIGUEZ, Also Known as Carlos Jose Rodriguez-Ortiz, Defendant - Appellant United States of America, Plaintiff - Appellee v. Michael Lee Marcov, Defendant - Appellant	United States v. Carlos Rodriguez	2019-02-07	17-3807; 17-3809	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "BEAM, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3807\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\nCarlos Kalier Rodriguez, also known as Carlos Jose Rodriguez-Ortiz\n\n lllllllllllllllllllllDefendant - Appellant\n ___________________________\n\n No. 17-3809\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Michael Lee Marcov\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeals from United States District Court\n for the Northern District of Iowa - Dubuque\n ____________\n\f Submitted: November 12, 2018\n Filed: February 7, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nBEAM, Circuit Judge.\n\nI. BACKGROUND\n\n Carlos Rodriguez and Michael Marcov appeal the sentences and restitutional\nrequirements imposed by the district court1 following their guilty pleas to wire fraud.\nRodriguez and Marcov, and many others, participated in a scheme to obtain money\nfrom generally elderly victims in the Dubuque, Iowa, area and elsewhere by calling\nand telling them that relatives in the Dominican Republic had been jailed and that the\nrelatives needed to wire money to get them out. Victims wired money to a person at\na location provided by the callers. The criminal organization employed \"crew\nleaders\" and \"runners\" in the United States. The crew leaders communicated with\npeople in the Dominican Republic, while runners picked up money, returned it to\ncrew leaders, who then deposited it in United States bank accounts for subsequent\ntransfer to the Dominican Republic, or directly transferred money to the Dominican\nRepublic.\n\n Starting in 2015, Rodriguez was both a runner and a crew leader and he was\nin direct contact with members of the organization in the Dominican Republic to give\nthem names of possible runners. Rodriguez also recruited runners and crew leaders\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa.\n\n -2-\n\fin the United States and directly supervised at least twenty-three runners at various\ntimes during the conspiracy. In December 2015, one of those recruits, co-defendant\nMarcov, joined the scheme. Marcov quickly immersed himself in the program,\nadvancing from runner to crew leader within a few months. As a crew leader, Marcov\nhad direct contact with Dominican Republic organization members and recruited and\nultimately supervised at least nine runners. In May 2017, Rodriguez and Marcov\neach pleaded guilty to one count of wire fraud.\n\n At Rodriguez's sentencing, the district court found that Rodriguez was jointly\nand severally liable with certain other members of the conspiracy for payment of\nrestitution in the amount of $774,584.97. Rodriguez agreed at sentencing that this\nnumber was the correct amount of loss involved in the total scheme (but challenged\nthat he should be personally liable for that amount of restitution). The court departed\nupward four levels under United States Sentencing Guidelines Manual § 5K2.0(a)(3),\nfinding that the Guidelines did not adequately take into consideration the number of\nvictims. Alternatively, the district court stated that if a four-level U.S.S.G. § 5K2\nupward departure was not legally appropriate, it would have exercised its discretion\nto vary upwards under the factors set forth in 18 U.S.C. § 3553(a). As noted in the\ngovernment's brief, the district court made an additional downward adjustment \"for\nreasons unrelated to this appeal\" and Rodriguez's resulting sentence was 79 months\nin prison.\n\n At Marcov's sentencing, a Dubuque, Iowa, police officer who had investigated\nthe criminal venture testified regarding Marcov's role in the overall scheme. He\ntestified that Marcov was recruited by Rodriguez to be a runner; that Marcov began\nrecruiting other individuals to work with him picking up wire transfers for Rodriguez;\nand stated that eventually Marcov became a crew leader. With regard to the amount\nof loss attributable to Marcov, the officer testified that he interviewed several runners\nworking for both Marcov and Rodriguez, and testified about the financial documents\nhe examined that were attributable to either Marcov or the runners working for\n\n -3-\n\fMarcov during the time frame when Marcov was involved in the crimes. Based upon\nthis testimony and extensive documentation, the district court found that the loss\nattributable to Marcov was roughly $298,000, which equaled the total amount of loss\nfrom the wire fraud portion of the conspiracy. The district court also correctly found\nthat Marcov was a manager or supervisor in the scheme. As with Rodriguez's\nsentencing, the district court departed upward in Marcov's case based upon the\nnumber of victims not adequately taken into account by the Guidelines. The court set\nrestitution for Marcov at $298,314.42, to be shared jointly and severally with\nRodriguez. The district court's final sentence was 120 months, the bottom of the 120-\n150 month Guidelines range.\n\nII. DISCUSSION\n\n On appeal, Rodriguez first challenges the district court's upward departure\nbased upon the number of victims. But, as previously noted, the district court stated\nalternatively that it would vary upwards to the sentence it arrived at under its\ndiscretion authorized by 18 U.S.C. § 3553(a). Thus, it is unnecessary to review the\nGuidelines challenge if the upward variance \"is sufficient to justify the sentence\nimposed.\" United States v. Hentges, 817 F.3d 1067, 1068 (8th Cir. 2016). We give\n\"due deference to the district court's decision that the § 3553(a) factors, on a whole,\njustify the extent of the variance.\" United States v. Espinoza, 831 F.3d 1096, 1098\n(8th Cir. 2016) (quoting United States v. Moralez, 808 F.3d 362, 368 (8th Cir. 2015)).\nWe find the district court did not abuse its discretion in sentencing Rodriguez to 79\nmonths in prison.\n\n Rodriguez and Marcov both challenge the amount of restitution ordered. The\nMandatory Victims Restitution Act (MVRA) states that a district court must order\nrestitution in a case, such as this, prosecuted under Title 18 of the United States Code\nif the offense involved fraud or deceit. 18 U.S.C. § 3663A(c)(1)(A)(ii). The\ngovernment must prove the amount of restitution by a preponderance of the evidence\n\n -4-\n\fand we review the resulting restitution order for an abuse of discretion. United States\nv. Hoskins, 876 F.3d 942, 945 (8th Cir. 2017), cert. denied, 138 S. Ct. 2589 (2018).\nWhen multiple defendants are involved in the loss, the district court has discretion to\norder restitution for the full amount of loss, to be shared jointly and severally by\ndefendants. 18 U.S.C. § 3664(h). Restitution includes amounts that were reasonably\nforeseeable as losses to the victims. United States v. Alexander, 679 F.3d 721, 731\n(8th Cir. 2012).\n\n Rodriguez argues that because there were periods of time when he was not\nactive in the criminal enterprise, he should not be jointly liable for the full\n$774,584.97 amount of restitution. Specifically, Rodriguez argues he was inactive\nfrom February to April 2016, that the amount lost during that time was not reasonably\nforeseeable to him, and the restitution order should be reduced accordingly. The\ndistrict court found that Rodriguez should be held responsible for the entire amount\nof the loss, even the amount that accrued during his alleged \"inactive\" time, because\nduring that time, Marcov and his crew were active and Marcov was recruited by\nRodriguez. Accordingly, the district court did not err in finding that this loss, caused\nby a crew leader (Marcov) who had been recruited by Rodriguez, was reasonably\nforeseeable to Rodriguez because he knew the crew was active during the time frame\nhe challenges. Id. Thus, the government met its burden of proving that the correct\namount of restitution was awarded, and the district court did not abuse its discretion\nin electing to make the entire amount jointly and severally attributable to Rodriguez.\n\n Marcov's challenge to the restitution awarded is equally unavailing. As we\nunderstand Marcov's argument, he argues that he did not cause the entire loss\nattributed to him, and because he did not personally gain much from the scheme, the\namount should be much less. Since he gained so little, Marcov argues, it was not\nreasonably foreseeable to him that the loss to victims would be nearly $300,000. Like\nRodriguez, Marcov does not challenge that $298,314.42 was lost, he simply argues\nthis total amount is not \"attributable\" to him, and instead the amount of restitution\n\n -5-\n\fshould be less than $6,500. At sentencing, the officer's testimony indicated that\nMarcov was intimately involved in each transaction that occurred during the time\nframe he was involved in the conspiracy–Marcov knew the dollar amounts involved\nwith each transaction and where the wire transfers should be picked up.\n\n Marcov's citation to Honeycutt v. United States 137 S. Ct. 1626 (2017) does\nnot advance his cause. In Honeycutt the Court held that the forfeiture statute, 21\nU.S.C. § 853, limited forfeiture to property the defendant himself actually acquired\nas a result of the crime, and further held that joint and several liability was not\nappropriate in the forfeiture context. 137 S. Ct. at 1632-33. While we can appreciate\nMarcov's attempts to extend the reasoning behind Honeycutt's joint and severability\nruling to the restitution statute, the rationales behind the forfeiture statute and the\nrestitution statute are quite distinct. The forfeiture statute is meant to prevent a\ndefendant from keeping his \"ill-gotten gains,\" to return property to those deprived of\nit, and to serve as a deterrent to the economic power of criminal activity. Id. at 1631\n(quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629-30\n(1989)). While some aspects of mandatory restitution statutes are punitive, the\nprimary purpose of such statutes is \"remedial or compensatory.\" Paroline v. United\nStates, 572 U.S. 434, 456 (2014). Most importantly, unlike the forfeiture statute, the\nexpress language of the MVRA allows joint and severable liability. Nothing in\nHoneycutt undercuts the language of 18 U.S.C. § 3664(h) (\"If the court finds that\nmore than 1 defendant has contributed to the loss of a victim, the court may make\neach defendant liable for payment of the full amount of restitution . . . .\" ). In fact, a\nprimary reason behind the Honeycutt Court's decision was the lack of statutory text\nauthorizing forfeiture to be allotted jointly and severally. 137 S. Ct. at 1632.\nAccordingly, the government met its burden to prove the amount of restitution by a\npreponderance of the evidence and the district court did not abuse its discretion in\nordering Marcov liable for the full amount of the loss during the time he was active\nin the criminal enterprise.\n\n\n\n -6-\n\f Marcov further challenges the district court's factual assessment that he had a\nsupervisory role resulting in the upward departure, and argues instead that the court\nshould have granted him a minor-role downward departure. We review the district\ncourt's factual findings regarding a minor role reduction for clear error. United States\nv. Price, 542 F.3d 617, 622 (8th Cir. 2008). We find no clear error in the district\ncourt's factual findings. The police officer testifying at the hearing indicated that\nMarcov was not only a recruited participant in the scheme, but rather quickly rose\nthrough the ranks and began recruiting others himself and became a crew leader.\nMarcov admitted that he recruited at least nine people to become runners and then\nsupervised them as a crew leader. The fact that the scheme involved a large number\nof other participants does not make Marcov's supervision over a relatively small\npercentage of them any less supervisory. Perhaps he was a \"minor supervisor.\"\nHowever, neither our cases nor the Guidelines make such a distinction. See id.\n(upholding district court's refusal to grant a minor role adjustment where defendant\nsupervised and directed at least one other person to commit fraud). The district\ncourt's finding that Marcov was a supervisor, not a minor participant, was not clearly\nerroneous.\n\n Finally, Marcov challenges his sentence as substantively unreasonable, which\nclaim we review for an abuse of discretion. United States v. Feemster, 572 F.3d 455,\n461 (8th Cir. 2009) (en banc). The district court abuses its discretion if it fails to\nconsider a relevant factor that should have instead received significant weight, gives\nsignificant weight to an improper factor, or considers appropriate factors but commits\na clear error of judgment in weighing those factors. United States v. Long, 906 F.3d\n720, 727 (8th Cir. 2018). We have reviewed the record, including the sentencing\ntranscript and presentence investigation report, and find no abuse of discretion. Here,\nthe district court considered all of the relevant factors, did not give weight to any\nimproper factor, and did not commit a clear error in judgment.\n\n\n\n\n -7-\n\fIII. CONCLUSION\n\n We affirm both sentences and restitution orders.\n ______________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365534/", "author_raw": "BEAM, Circuit Judge."}]}	BENTON	BEAM	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588281/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,283	Sylvia PERKINS, as a Personal Representative of the Estate of Bobby Moore, III, Deceased, Plaintiff - Appellant v. Joshua HASTINGS, in His Individual and Official Capacities; Stuart Thomas, in His Individual and Official Capacities; Little Rock, City Of, a Municipality, Defendants - Appellees	Sylvia Perkins v. Joshua Hastings	2019-02-07	17-2079	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Wollman, Loken", "parties": "", "opinions": [{"type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2079\n ___________________________\n\nSylvia Perkins, as a Personal Representative of the Estate of Bobby Moore, III, deceased\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Joshua Hastings, in his individual and official capacities; Stuart Thomas, in his\n individual and official capacities; Little Rock, City of, a municipality\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Little Rock\n ____________\n\n Submitted: April 12, 2018\n Filed: February 7, 2019\n ____________\n\nBefore SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.\n ____________\n\nWOLLMAN, Circuit Judge.\n\n Little Rock, Arkansas, Police Officer Joshua Hastings shot and killed fifteen-\nyear-old Bobby Moore III, on August 12, 2012. Moore’s mother, Sylvia Perkins,\nacting as a personal representative of his estate, filed suit against Officer Hastings,\nPolice Chief Stuart Thomas, and the City of Little Rock, alleging claims under 42\n\fU.S.C. § 1983 and state law. The district court1 granted summary judgment in favor\nof Thomas and the City, and the case against Hastings proceeded to trial. A jury\nfound that Hastings had violated Moore’s Fourth Amendment right to be free from\nexcessive force and returned a verdict in favor of Perkins. After final judgment was\nentered, Perkins appealed, challenging the summary judgment order. We affirm.\n\n I. Background\n\n Hastings applied for a position with the Little Rock Police Department in May\n2006. Before being hired, Hastings submitted to a polygraph examination, during\nwhich he admitted that he had attended a Ku Klux Klan meeting when he was a junior\nin high school. In a statement, Hastings explained that he snuck into the meeting with\ntwo friends to “see what [his friend’s] grandpa does.”\n\n A hiring committee approved Hastings for hire by a vote of three-to-one. The\ncommittee was composed of Chief Thomas, a white male who had served twenty-nine\nyears with the Little Rock Police Department, and three other high-ranking officers,\nall of whom had served more than twenty years on the police force. The lieutenant\nwho cast the negative vote stated that Hastings’s attendance at a Ku Klux Klan\nmeeting disqualified him from serving with the Little Rock Police Department. In a\nmemo to his captain, the lieutenant wrote that he had “serious reservations regarding\n[Hastings’s] judgment and maturity” and that Hastings was “an unfavorable candidate\nand a potential liability for the Little Rock Police Department.”\n\n Hastings was hired in March 2007 and attended twenty weeks of police\ntraining. After graduation, Hastings underwent twelve weeks of field training, during\n\n\n\n 1\n The Honorable Brian S. Miller, Chief Judge, United States District Court for\nthe Eastern District of Arkansas.\n\n -2-\n\fwhich he rode along with more experienced officers. Hastings thereafter received\nforty hours of training per year, including refresher courses on the use of force.\n\n Hastings was the subject of multiple disciplinary actions over the course of his\nfive-year career with the Little Rock Police Department. He repeatedly failed to\nactivate his motor vehicle recording device; failed to properly store property or\nproperly complete paperwork; failed to properly investigate; failed to honor\nsubpoenas; failed to notify supervisors; and failed to follow orders or left his district\nwithout permission. Hastings also used inappropriate language or engaged in\nunbecoming conduct; engaged in improper driving or damaged department\nequipment; slept on duty; and was untruthful. Hastings’s discipline for these\nviolations ranged from counseling and reprimands to suspensions from one to fifteen\ndays.\n\n The Little Rock Police Department maintains an Early Intervention System\n(EIS) that monitors officers to identify patterns of misconduct. Supervisors have\naccess to the system, and the office of professional standards receives an alert\nwhenever an officer meets “an established threshold [of incidents] . . . pertaining to\nuse of force, on-duty motor vehicle accidents, police pursuits and complaints\ninvolving misconduct and inadequate service.” Until the software was upgraded in\n2012, the system did not distinguish between officers who had used force during an\nincident and those officers who had not used force but were otherwise involved.\n\n Hastings triggered three EIS alerts during his career. In April 2009, the EIS\nsystem identified Hastings as having been involved in six use-of-force incidents\nduring the preceding year. The department had previously investigated the incidents\nand exonerated Hastings of any wrongdoing. According to the facts gathered by the\ninternal affairs division and set forth in the EIS report, three incidents involved\nsuspects attempting to punch Hastings, to which Hastings responded with a “brachial\nstun,” a punch, and “several straight punches,” respectively. The remaining incidents\n\n -3-\n\finvolved force related to taking down noncompliant or fleeing suspects. Hastings’s\nimmediate supervisor reviewed the EIS report and concluded that Hastings had\nemployed “the minimum use of force necessary to carry out his assigned duties as a\npatrolman.” The sergeant determined that the report was a “false alarm” and\nrecommended no disciplinary action. Two lieutenants, a captain, and Chief Thomas", "author": "WOLLMAN, Circuit Judge."}, {"type": "concurrence", "author": "all", "text": "all concurred in the sergeant’s recommendation.\n\n The next EIS alert occurred in February 2010, after Hastings was involved in\nten use-of-force incidents in the preceding year. The department previously had\ninvestigated those incidents and exonerated Hastings of any wrongdoing. According\nto the EIS report, Hastings used force when confronted with suspects who were\nnoncompliant, fleeing, resisting arrest, or attempting to punch or kick the officers.\nHastings used force similar to that which was reported in the April 2009 EIS report,\nincluding takedowns and punches. He also used a “straight arm bar,” a “shoulder pin\nmaneuver,” “straight arm strikes,” and baton strikes.\n\n After reviewing the file, his sergeant wrote that Hastings’s use-of-force\nincidents were “not that high,” in light of his “patrol area consist[ing] of the highest\nviolent crime area and . . . the heaviest call-load.” She did not recommend discipline\nbut indicated that she would monitor Hastings’s performance. The lieutenant agreed,\nand the captain advised that he had asked Hastings’s supervisors to work with\nHastings “very close[ly] to ensure he is professional and works to avoid uses of\nforce.” The assistant chief of police recommended additional monitoring and\nsupervision, however, in light of the number of incidents involving the use of force\nand vehicle pursuits, as well as an on-duty motor vehicle accident and other\ndisciplinary issues. Based on the assistant chief’s recommendations, Chief Thomas\nordered Hastings to have bi-weekly counseling sessions and required bi-weekly\nprogress reports for six months.\n\n\n\n\n -4-\n\f While the investigation into the second EIS alert was pending, Cedric McSwain\nfiled a citizen complaint against Hastings. McSwain reported that he was standing\nin an alley on March 15, 2010, when he saw officers approaching. McSwain reported\nthat he offered his identification, put his arms in the air, and told the officers his name\nand address. According to McSwain, officers grabbed him by the arms and legs,\nthrew him to the ground, put a foot on his back, and punched him in the eye. The\npolice report indicated that McSwain was intoxicated, belligerent, and resisted arrest.\nThe report further indicated that because the officers believed McSwain to be a\nsuspect who had fled on foot, they took him to the ground. According to the officers\ninvolved in the incident, Hastings held McSwain’s left arm during the takedown and\nthereafter handcuffed him. Hastings did not submit any documentation about the\nincident or his use of force.\n\n Following an internal affairs investigation, Chief Thomas found that Hastings\nhad violated the department’s general orders requiring police-incident reports and\nuse-of-force reports. Hastings was exonerated from the allegations that he had used\nexcessive force and failed to properly operate his motor vehicle recording device. An\nallegation of untruthfulness was deemed “not sustained.” Chief Thomas ordered\ncounseling and remedial training on documenting the use of force. McSwain later\nfiled a lawsuit against Hastings, Chief Thomas, and other officers. The lawsuit was\ndismissed after McSwain failed to respond to the merits of the defendants’ motion for\nsummary judgment. See McSwain v. Hastings, No. 4:13-cv-122-DPM, 2015 WL\n731286 (E.D. Ark. Feb. 17, 2015).\n\n Hastings triggered a third EIS alert in April 2010 after being involved in six\nuse-of-force incidents between January 24, 2010, and April 18, 2010. The\ndepartment investigated those incidents and exonerated Hastings. Like the previous\nreports, this report indicated that Hastings had used force against individuals who\nwere noncompliant, fleeing, actively resisting arrest, or attempting to punch or kick\nofficers. Hastings’s use of force included takedowns, the use of pepper spray, and the\n\n -5-\n\fuse of “his bodyweight to maintain control” of a suspect. Hastings was ordered to\ncontinue with his bi-weekly counseling.\n\n Hastings did not trigger any further EIS reports during his time on the police\nforce, nor were any further citizen complaints or lawsuits filed against him.\nAccording to his concise officer history report, Hastings was involved in a total of\nforty-one incidents involving the use of force. His only use of deadly force during\nhis five-year career occurred when he shot Moore.\n\n Chief Thomas authorized an investigation on June 27, 2012, into allegations\nthat Hastings had been untruthful and was guilty of dereliction of duty. According\nto the internal affairs report, Hastings had been dispatched to a store at 4:13 a.m. on\nJune 25, 2012, after an alarm company called and reported glass breakage. The alarm\ncompany called again at 4:37 a.m. to report an alarm indicating that the front door\nwas opened, at which time Hastings reported to dispatch that he had shaken the front\ndoor. Hastings’s incident report stated that the offense was a false alarm and that all\ndoors and windows were locked and secured.\n\n The incident was recorded on the store’s security camera and directly\ncontradicted Hastings’s version of the incident. The recording showed a rock being\nthrown through a window in the front door. A suspect had entered the business and\nlater exited with a large white bag containing the loot. A police car then drove by\nwithout stopping, and the store manager later can be seen entering and exiting the\nstore, presumably while waiting for the officers. The manager called dispatch at 4:46\na.m. to report that no officers had responded to the calls. During an interview,\nHastings said that he exited his car, walked up to the doors, and pulled them to make\nsure that they were secure. According to the investigation report, the video evidence\n“clearly display[ed] the front doors of the business and never showed Officer\nHastings approach the doors.” Chief Thomas determined that Hastings had neglected\nhis duty and been untruthful, in violation of the rules and regulations of the police\n\n -6-\n\fdepartment. Hastings remained on duty during the investigation into the store\nincident.\n\n We turn, then, to the incident that gave rise to the present action. In the early\nmorning hours of August 12, 2012, Hastings responded to a report of suspicious\nactivity near an apartment building. According to the caller, two individuals were\nwalking through the parking lot and looking into vehicles with flashlights. Hastings\narrived on the scene and advised over the radio that he had heard glass breaking and\nhad observed three black males. The three suspects soon entered a vehicle, and\nMoore drove the vehicle forward toward Hastings. When Hastings stepped out in\nfront of the car, Moore either stopped the car or placed it in reverse. Hastings fired\ntwo rounds into the driver’s side compartment, killing Moore. Homicide detectives\nand members of the Crime Scene Search Unit were called to the scene, and the Little\nRock Police Department began its criminal investigation.\n\n Several hours after the shooting and in the presence of his attorney, Hastings\nwas advised of his Miranda rights and interviewed by law enforcement officials.\nHastings stated that he was positioned near the top of a hill when he observed two\nblack males in a vehicle and one black male standing nearby holding a flashlight.\nHastings repositioned himself and then observed the three suspects enter a different\nvehicle. Hastings stated that when the vehicle drove forward, he stepped out in front\nof it, turned on his flashlight, and yelled, “Police, stop the car!” According to\nHastings, the driver did not slow down and instead drove “straight at [him].”\nHastings stated that he backpedaled and realized that he had no place to go, with\nrocks behind him and a wall next to him. Hastings claimed that he then shot into the\nvehicle to prevent the driver from running him over.\n\n Hastings stated that after he fired the two shots, the vehicle passed by him so\nclosely, he could have touched it. According to Hastings, the vehicle “crashed into\nthe rocks” as it proceeded forward, traveled just over an embankment, stopped\n\n -7-\n\fmomentarily, and then rolled backwards until its rear end struck a parked car. The\ntwo passengers fled from the scene. Hastings maintained that he did not shoot at the\nvehicle while it was traveling in reverse.\n\n Police officers located the two teenage boys who had been with Moore that\nAugust morning. One of the boys explained that as the vehicle approached the\ndumpster, he saw a light and told Moore to stop, which he did. The teenager\nrecounted that Moore put the gear in reverse and started backing down the hill. The\nofficer then opened fire. The other boy said that they were unaware that a police\nofficer was present until the officer stepped in front of the car. He said that Moore\nwas stopping the car when the officer fired shots, whereupon the vehicle traveled\nbackwards.\n\n Hastings’s version of the incident was inconsistent with the passengers’\naccounts and the evidence gathered at the crime scene. The rocky embankment that\nHastings claimed the vehicle traveled over was undisturbed. The vehicle’s\nundercarriage was not damaged, and its gear shift was in neutral. A reconstruction\nof the event determined that the victim’s vehicle was traveling “in reverse under\npower” before it hit the parked car. Chief Thomas ultimately concluded that the\nvehicle had stopped several feet from Hastings and that the driver was in the process\nof reversing when Hastings discharged his weapon.\n\n In September 2012, a state district judge issued a warrant for Hastings’s arrest\non a charge of manslaughter in violation of Arkansas Code § 5-10-104. The\nsupporting affidavit stated that “[w]hile it appears that the vehicle was driving toward\nHastings at some point, all of the physical evidence is consistent with statements\nmade by the occupants of the car, indicating that the car was stopped, or in reverse\nat the time Hastings fired, and not traveling toward him at a high rate of speed, as\nHastings indicated in his statement.”\n\n\n\n -8-\n\f Following the internal affairs investigation, Chief Thomas terminated Hastings\nfor violating the general orders and the rules and regulations of the Little Rock Police\nDepartment. The termination was based on Hastings’s shooting of Moore and his\ndereliction of duty and untruthfulness regarding the store break-in. With respect to\nthe shooting, Hastings had violated General Order 303, Section II.D., which states,\n“Officers may only use Deadly Force to protect themselves or others from what they\nreasonably believe to be an immediate threat of death or serious injury.” Hastings\nhad also violated General Order 303, Section II.E.1-2, which provides:\n\n Discharging firearms at a moving or fleeing vehicle is prohibited, unless\n it is necessary to prevent imminent death or serious physical injury to\n the officer or another person.\n\n Officers will not voluntarily place themselves in a position in front of an\n oncoming vehicle where Deadly Force is the probable outcome. When\n confronted by an oncoming vehicle, officers will move out of its path,\n if possible, rather than fire at the vehicle.\n\n Following the criminal and internal investigations, a Deadly Force Review\nBoard was convened to evaluate both investigations. The Board determined that the\nincident was avoidable and that Hastings “did not adhere to his training when he\nexited his position of cover and concealment and placed himself in the path of the\nmoving vehicle.”\n\n Perkins filed this action against Hastings, Chief Thomas, and the City of Little\nRock in June 2015. As relevant to this appeal, she alleged that the City “maintained\na widespread custom of excessive force and untruthfulness,” that Thomas and the\nCity failed to train or supervise police officers, and that Thomas was individually\nliable for hiring and retaining Hastings.\n\n\n\n\n -9-\n\f In opposition to defendants’ motion for summary judgment, Perkins submitted\nan affidavit and a report by Roger Clark, an expert in police procedures, who opined\nthat the City failed to investigate or discipline its officers. Clark compared the\nnumber of incidents of force sustained as excessive (33) to the total number of use-of-\nforce incidents that generated internal affairs reports (577) by Little Rock police\nofficers from 1985 to 2016. Clark found that the percentage of incidents deemed\nexcessive (6 percent) was “inordinately low” and was “a per se indicator of a pattern\nand practice by the Little Rock Police Department to ignore clear indicators of\nexcessive force by officers.” According to Clark, the numbers indicated that the City\nallowed officers “to repeatedly inflict excessive force and ignore the written policies\nand procedures of the Little Rock Police Department.” Clark did not review the\nindividual incidents involving the use of force and did not identify incidents in which\na finding of excessive force should have been sustained but was not. When asked to\nidentify an instance in which excessive deadly force was used between 2004 and\n2011, Clark replied, “I did not review the uses of deadly force case by case.”\n\n Similarly, Clark did not examine each incident in which Hastings had applied\nforce, concluding instead that Hastings must have used excessive force because he\nhad been involved in forty incidents involving the use of force during his five-year\ncareer. Later in his deposition, Clark identified three incidents in which he believed\nHastings had used excessive force. When asked which incidents indicated that\nHastings would use deadly force against Moore, Clark replied, “[W]hen you have an\nofficer that’s non-compliant in any area, it’s reflective of being non-compliant in the\ncritical area . . . [, and] sooner or later, their departure from the standard will result\nin a catastrophic outcome.”\n\n As recounted above, the district court granted summary judgment to Thomas\nand the City. On the claim alleging a municipal custom of permitting or encouraging\nexcessive force, the court determined that Perkins had not established an underlying\npattern of excessive force and that “a pattern of untruthfulness, even if proven, is not\n\n -10-\n\fsimilar enough to be the proximate cause of an officer’s use of excessive force.” D.\nCt. Order of Jan. 27, 2017, at 14. With respect to Perkins’s claim alleging failure to\ntrain or supervise the City’s police officers, the district court concluded that “the\nundisputed facts do not demonstrate that either Thomas or the city of Little Rock was\naware of and deliberately indifferent to a pattern of unconstitutional conduct by the\nLRPD that was similar to the shooting of Bobby Moore.” Id. at 4. The district court\nalso concluded that “the single act of hiring Hastings did not proximately cause a\nviolation of Bobby Moore’s constitutional rights.” Id. at 15.\n\n Perkins moved for reconsideration, arguing that the court had committed\n“serious misapplications of the law” and had “arbitrar[il]y pars[ed]” the evidence. D.\nCt. Order of Mar. 24, 2017, at 1. Perkins also claimed that the district court had\ndisregarded Clark’s expert opinion. The district court denied the motion, reiterating\nthat Perkins had failed to establish a pattern of prior similar misconduct. The court\nfurther explained that Clark’s statistical analysis alone could not substantiate his\nopinion that the City maintained a custom of allowing officers to use excessive force.\n\n II. Discussion\n\n We review de novo the district court’s grant of summary judgment, viewing the\nevidence in the light most favorable to the nonmoving party and drawing all\nreasonable inferences in that party’s favor. Andrews v. Fowler, 98 F.3d 1069, 1074\n(8th Cir. 1996). Summary judgment is appropriate if the moving party shows that\nthere is no genuine dispute as to any material fact and the moving party is entitled to\njudgment as a matter of law. Fed. R. Civ. P. 56(a). “Summary judgment is also\nappropriate when the plaintiff has failed to make a sufficient showing of the existence\nof an essential element of her case.” Andrews, 98 F.3d at 1074.\n\n\n\n\n -11-\n\f A. Municipal Liability\n\n A municipality may be held liable under § 1983 if it, “under color of any\nstatute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes\nto be subjected, any citizen of the United States . . . to the deprivation of any rights,\nprivileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983;\nsee Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Municipal liability\nexists “only where the municipality itself causes the constitutional violation.” City\nof Canton v. Harris, 489 U.S. 378, 385 (1989). A plaintiff thus must “identify a\nmunicipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of Cty.\nComm’rs v. Brown, 520 U.S. 397, 403 (1997).\n\n “[A]n act performed pursuant to a ‘custom’ that has not been formally approved\nby an appropriate decisionmaker may fairly subject a municipality to liability on the\ntheory that the relevant practice is so widespread as to have the force of law.” Id. at\n404. The plaintiff also must show a direct causal link between the custom and the\ndeprivation of rights, i.e., that “the municipality was the ‘moving force’ behind the\ninjury alleged.” Id. (quoting Monell, 436 U.S. at 694). “Where a plaintiff claims that\nthe municipality has not directly inflicted an injury, but nonetheless has caused an\nemployee to do so, rigorous standards of culpability and causation must be applied\nto ensure that the municipality is not held liable solely for the actions of its\nemployee.” Id. at 405.\n\n Perkins first contends that the violation of her son’s Fourth Amendment rights\nwas caused by the City’s failure to adequately investigate police misconduct. To\nestablish a municipal custom based on a failure to prevent police misconduct, a\nplaintiff must show that the municipality acted with deliberate indifference to the\nrights of persons with whom the officers come into contact. See Harris v. City of\nPagedale, 821 F.2d 499, 504 (8th Cir. 1987) (applying a deliberate indifference\nstandard to a claim of “a municipal custom of failing to receive, investigate or act on\n\n -12-\n\fcitizen complaints of physical and sexual misconduct by police officers”). To\nestablish deliberate indifference, a plaintiff ordinarily must show a pattern of\nconstitutional violations.2 See Brown, 520 U.S. at 409 (explaining that a “pattern of\ninjuries [is] ordinarily necessary to establish municipal culpability and causation”);\nParrish v. Luckie, 963 F.2d 201, 204 (8th Cir. 1992) (“To establish a city’s liability\nbased on its failure to prevent misconduct by employees, the plaintiff must show that\ncity officials had knowledge of prior incidents of police misconduct and deliberately\nfailed to take remedial action.”); Harris, 821 F.2d at 504 (“The claimant must\ndemonstrate ‘deliberate indifference or tacit authorization [by municipal officials] of\nthe offensive acts by [failure] to take remedial steps following notice of a pattern of\nsuch acts by . . . subordinates.’” (alterations in original) (quoting Wilson v. City of\nN. Little Rock, 801 F.2d 316, 322 (8th Cir. 1986))). The district court determined\nthat Perkins’s failure to show a pattern of constitutional violations foreclosed her\ninadequate-investigation claim.\n\n The district court did not err when it required Perkins to establish a pattern of\nconstitutional violations to prove her claim. See Mettler v. Whitledge, 165 F.3d\n1197, 1205 (8th Cir. 1999) (“Evidence that a police department has failed to\ninvestigate previous incidents similar to the incident in question may support a\nfinding that a municipal custom exists, and that such a custom encourages or allows\nofficers to use excessive force without concern for punishment.”); Rogers v. City of\nLittle Rock, 152 F.3d 790, 798 (8th Cir. 1998) (“In order to subject the city to § 1983\nliability Rogers must show that the city had a ‘“policy or custom” of failing to act\nupon prior similar complaints of unconstitutional conduct, which caused the\n\n\n\n\n 2\n Perkins has not argued that this case is one where Hastings’s use of excessive\nforce was “the plainly obvious consequence” of the City’s alleged failure to\ninvestigate police misconduct. See Brown, 520 U.S. at 409.\n\n\n -13-\n\fconstitutional injury at issue.’” (quoting Andrews, 98 F.3d at 1075)).3 Nor did the\ndistrict court misinterpret Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), in\nwhich the court held that the plaintiff had presented sufficient evidence to allow a\njury to conclude that the municipality permitted or encouraged a pattern of excessive\nforce through its inadequate investigations of civilian complaints. Although Perkins\nmaintains that the City’s investigations into misconduct were “nothing more than a\nfacade, designed to exonerate officers,” Appellant’s Br. 16, she has not addressed the\nsubstance of the district court’s decision to grant summary judgment to the City—that\nshe had not presented sufficient evidence to show a pattern of constitutional\nviolations.\n\n At summary judgment, Perkins argued that the evidence established a “pattern\nof shooting at moving cars that do not pose an objectively reasonable fear of\nimminent death or great bodily harm.” She presented some evidence regarding six\nincidents in which officers had used deadly force against individuals driving vehicles.\nThe district court concluded that only one of the shootings was arguably unjustified\nand that the remaining incidents involved drivers attempting to run over police\nofficers. D. Ct. Order of Jan. 27, 2017, at 13. The court concluded that Perkins thus\nhad not shown a pattern of constitutional violations, even assuming that some officers\nhad “acted imprudently because they could have stayed inside their vehicles, waited\n\n\n 3\n Perkins argues that the district court relied on a “non-existent quotation” from\nRogers, Appellant’s Br. 8, and thus erroneously concluded that “deliberate\nindifference will not be found if the alleged misconduct was investigated and\nexonerated or if the officer was disciplined,” see D. Ct. Order of Jan. 27, 2017, at 9.\nThe district court corrected this error in its order denying Perkins’s motion to\nreconsider. See D. Ct. Order of Mar. 24, 2017, at 10-12. Perkins also criticizes the\ndistrict court for relying on evidence included in the record but not cited by the\nparties. The Federal Rules of Civil Procedure clearly allow the district court to\nconsider the materials in the record. Fed. R. Civ. P. 56(c)(3) (“The court need\nconsider only the cited materials, but it may consider other materials in the record.”).\n\n\n -14-\n\ffor backup, or gotten out of the way.” Id. at 14. Perkins has not explained whether\nor how the district court erred in its analysis of those incidents, but rather argues that\nshe has established “that several officers fired at several vehicles despite them not\nbeing in the path of said vehicles.” Appellant’s Br. 48-49; see id. at 22. Even\nassuming that the evidence can support her assertion, Perkins still has not shown that\nexcessive force was used in those shootings, for constitutionally permissible reasons\ncould exist for an officer to shoot at a moving vehicle even when not in the vehicle’s\npath.\n\n Perkins also argued at summary judgment that certain other police shootings\ndemonstrated a pattern of excessive force. The district court considered evidence of\nthose shootings, but found “Perkins’s accounts of these events [to be] largely\nspeculative.” D. Ct. Order of Jan. 27, 2017, at 11. On appeal, Perkins cites failures\nin the investigation of a police shooting that occurred in December 2010. The\npersonal representative of that victim’s estate brought suit, and the case settled after\nthe officer was denied qualified immunity. While that lawsuit put the City on notice\nof a possible constitutional violation, one unjustified shooting does not establish a\npattern of constitutional violations, and Perkins has not shown that the district court\nerred in its analysis of the other shootings it considered.\n\n Perkins contends that her expert established “instances of ‘facade’\ninvestigations and inadequate supervision” and that the district court’s “failure to\naddress—or even to mention—this competent, admissible and unopposed expert\nevidence is wholly inexplicable, and constitutes error.” Appellant’s Br. 27. The\nrecord reveals, however, that the district court addressed this expert evidence in its\norder denying reconsideration, concluding that Clark’s report and testimony could not\nestablish a pattern because his opinion was based only on his statistical analysis and\nnot on actual incidents involving excessive force by Little Rock police officers. D.\nCt. Order of Mar. 24, 2017, at 4-5. We find no error in the court’s conclusion that\n\n\n\n -15-\n\fthose statistics alone were insufficient to present a triable issue on Perkins’s failure-\nto-investigate claim. See Strauss v. City of Chicago, 760 F.2d 765, 768-69 (7th Cir.\n1985) (explaining that evidence that the police department sustained only six to seven\npercent of all registered complaints “indicate[d] nothing” without identifying what\nmade the prior conduct illegal and without “show[ing] that a similar illegality was\ninvolved in [the plaintiff’s] case” (internal quotation marks and citation omitted)).\n\n In sum, Perkins claims on appeal that the City maintained a custom of facade\ninvestigations based on alleged shortcomings in the City’s investigations into officer-\ninvolved shootings. The actionable municipal custom here must be one of deliberate\nindifference to a pattern of excessive force, however, which Perkins has not\nestablished in light of the fact that she has not shown a pattern of underlying\nconstitutional violations.\n\n For the same reason, we uphold the grant of summary judgment on Perkins’s\nclaim alleging that the City had failed to train or supervise its police officers.4 For the\nCity to be liable under this theory, the “municipality’s failure to train its employees\nin a relevant respect must amount to ‘deliberate indifference to the rights of persons\n\n\n 4\n Perkins also sued Thomas in his official capacity as police chief. “As we have\nnoted, ‘[a] suit against a public official in his official capacity is actually a suit against\nthe entity for which the official is an agent.’” Parrish v. Ball, 594 F.3d 993, 997 (8th\nCir. 2010) (alteration in original) (quoting Elder-Keep v. Aksamit, 460 F.3d 979, 986\n(8th Cir. 2006)).\n\n We note in passing that Perkins alleged in her complaint that “Hastings was\ntrained in the appropriate use of force for police officers” and “was fully aware that\nan officer may not use deadly force in situations where his life and safety, or those of\nothers, is not in danger.” Compl. ¶ 97. The City presented evidence that Hastings\ncompleted approximately 1,500 hours of training, including police academy, field\ntraining, and annual courses on the use of force.\n\n\n -16-\n\fwith whom the [untrained employees] come into contact.’” Connick v. Thompson,\n563 U.S. 51, 61 (2011) (alteration in original) (quoting Canton, 489 U.S. at 388); see\nTilson v. Forrest City Police Dep’t, 28 F.3d 802, 807 (8th Cir. 1994) (“The standard\nof liability for failure to supervise is ‘demonstrated deliberate indifference or tacit\nauthorization of the offensive acts.’” (quoting Bolin v. Black, 875 F.2d 1343, 1347\n(8th Cir. 1989))). “A pattern of similar constitutional violations by untrained\nemployees is ‘ordinarily necessary’ to demonstrate deliberate indifference for\npurposes of failure to train.” Connick, 563 U.S. at 62 (quoting Brown, 520 U.S. at\n409); see Ball, 594 F.3d at 1002 (requiring “notice of a pattern of unconstitutional\nacts committed by subordinates” to establish a failure-to-supervise claim). As set\nforth above, Perkins has not established a pattern of similar constitutional violations.\n\n B. Individual Capacity Claims Against Chief Thomas\n\n We reject Perkins’s contention that Chief Thomas should be held individually\nliable for Moore’s death based on his decision to hire Hastings. The Supreme Court\nhas set forth an exacting test for imposing liability based on a hiring decision,\nrequiring a court to “carefully test the link between the policymaker’s inadequate\ndecision and the particular injury alleged.” Brown, 520 U.S. at 410; see id. at 415\n(“Cases involving constitutional injuries allegedly traceable to an ill-considered\nhiring decision pose the greatest risk that a municipality will be held liable for an\ninjury that it did not cause.”); Morris v. Crawford Cty,, 299 F.3d 919, 923 (8th Cir.\n2002) (“The prior complaints in an applicant’s background must be nearly identical\nto the type of officer misconduct that caused the constitutional deprivation allegedly\nsuffered by a plaintiff.”). Perkins points to evidence that Thomas was friends with\nHastings’s father, that Hastings attended a Ku Klux Klan meeting in high school, that\nthere were irregularities in Hastings’s polygraph examination, and that a lieutenant\nadvised against hiring Hastings. We conclude that the referred-to evidence cannot\nestablish the essential link between Thomas’s decision to hire Hastings and his use\n\n\n\n -17-\n\fof excessive force against Moore. Stated differently, the evidence presents no\ngenuine issue of material fact that a “plainly obvious consequence of the hiring\ndecision” would be Hastings’s unjustified use of deadly force. See Brown, 520 U.S.\nat 412.\n\n We also reject Perkins’s argument that she has presented sufficient evidence\nto preclude summary judgment on her claim that Thomas failed to adequately train\nor supervise Hastings. A supervisor may be held liable “if a failure to properly\nsupervise and train the offending employee caused a deprivation of constitutional\nrights.” Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001) (quoting Andrews, 98\nF.3d at 1078). The plaintiff must show that the supervisor “(1) had notice of a pattern\nof unconstitutional acts committed by subordinates; (2) was deliberately indifferent\nto or tacitly authorized those acts; and (3) failed to take sufficient remedial action; (4)\nproximately causing injury to [the plaintiff].” Brewington v. Keener, 902 F.3d 796,\n803 (8th Cir. 2018) (internal quotation marks omitted) (quoting Livers v. Schenck,\n700 F.3d 340, 355 (8th Cir. 2012)). To prove deliberate indifference, the plaintiff\nmust show that the supervisor “had notice that the training procedures were\ninadequate and likely to result in a constitutional violation.” Livers, 700 F.3d at 356\n(quoting Andrews, 98 F.3d at 1078).\n\n Perkins has not presented sufficient evidence to show that Thomas had notice\nof a pattern of excessive force by Little Rock officers, nor has she shown that he acted\nwith deliberate indifference. Hastings’s disciplinary record indicates that he was a\nlazy and careless police officer, seemingly unable to complete the paperwork\nrequirements or meet the scheduling demands of police work. He also engaged in\nunbecoming conduct and used inappropriate language. While those violations of the\npolice department’s general orders or rules and regulations speak volumes about\nHastings’s general unfitness for police work, they do not establish a pattern of\nconstitutional violations, nor do they show that Thomas’s failure to train or supervise\n\n\n\n -18-\n\fHastings resulted in Moore’s death. See Livers, 700 F.3d at 356 (“To impose\nsupervisory liability, other misconduct must be very similar to the conduct giving rise\nto liability.”).\n\n With respect to Hastings’s use of force over the course of his career, Thomas\nordered additional supervision and additional training after Hastings triggered three\nEIS alerts and one citizen complaint in 2009 and 2010. Following those remedial\nactions, Hastings had no further EIS alerts or citizen complaints relating to the use of\nforce. Although Perkins argues that Thomas should have disciplined Hastings for\n“body-slam[ming] a mentally-ill, homeless black woman” in July 2010, Appellant’s\nBr. 41, Hastings reported that the woman had struck him and that he was trying to\nprevent her from striking him again. Other than his use of the word “body slam” to\ndescribe the takedown, the record does not support an inference that Hastings’s use\nof force was unconstitutional or that Thomas had notice that the report was false.\nFinally, relying on statistics, Perkins claims that Hastings used force more frequently\nagainst racial minorities, but in the absence of evidence that the force used against\nracial minorities was excessive or otherwise unjustified, those statistics do not\nsupport a supervisory claim against Thomas. Perkins has thus not submitted evidence\nsufficient to show that Thomas had notice that his training and supervision were\ninadequate and likely to result in the use of excessive force against Moore.\n\n The judgment is affirmed.\n _____________________________\n\n\n\n\n -19-"}]}	SMITH	WOLLMAN	LOKEN	1	{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588283/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,284	John CALON, Plaintiff-Appellant v. BANK OF AMERICA, N.A., Et Al., Defendants-Appellees	John Calon v. Bank of America Corporation	2019-02-07	17-3263	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Bowman, Shepherd", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3263\n ___________________________\n\n John Calon\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Bank of America, N.A., et al.\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: November 2, 2018\n Filed: February 7, 2019\n ____________\n\nBefore LOKEN, BOWMAN, and SHEPHERD, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n John Calon obtained a $20,001 home equity loan from Countrywide Home\nLoans in November 2000. Bank of America acquired or took over Countrywide in\nearly 2008. In December 2014, Calon filed a pro se complaint asserting five causes\nof action against Bank of America, N.A. and affiliates (collectively, “Bank of\nAmerica”). At the district court’s direction, Calon filed a forty-two page First\nAmended Complaint in July 2015, asserting twenty causes of action. The district\n\fcourt dismissed five counts for failure to state a claim in May 2016. Under the\ncourt’s Amended Scheduling Order, discovery closed October 24, 2016, and Bank of\nAmerica filed a timely motion for summary judgment on the remaining fifteen claims\non November 21, 2016. Rather than respond, Calon filed various unsupported\nmotions. The district court denied those motions, deemed admitted Bank of\nAmerica’s Statement of Uncontroverted Material Facts, and granted summary\njudgment dismissing all claims. Calon appeals, including in his appeal briefs\nnumerous fact assertions that are not supported in the summary judgment record\nbecause of his inexcusable disregard of the applicable rules of civil procedure. We\ndo not consider those assertions, nor do we take as true the fact assertions in Calon’s\nunverified First Amended Complaint.1 However, in reviewing de novo the grant of\nBank of America’s unopposed motion for summary judgment, we “must still\ndetermine that the moving party is entitled to judgment as a matter of law on [each]\nclaim.” Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 807\n(8th Cir. 1993). Applying that standard, we conclude that summary judgment was\nimproperly granted on three claims and otherwise affirm.\n\n Bank of America’s motion for summary judgment, and the district court’s\nanalysis, divided the fifteen claims into three categories. Most of the claims related\nto Bank of America’s practice of imposing lender preferred insurance (“LPI”) on\nmortgage borrowers who fail to maintain voluntary insurance on the mortgaged\nhomes. This practice was the subject of a class action lawsuit filed in the Southern\nDistrict of Florida in July 2012 in which Bank of America was a named defendant.\nThat Court entered final approval of a global settlement that included a broad release\nof claims by all class members. Hall v. Bank of America, N.A. et al., No. 1:12-cv-\n\n 1\n Calon’s appeal briefs also allege several injuries that, based on our review of\nthe record, were neither pleaded, argued, nor factually supported with evidence that\nwould preclude summary judgment in the district court. Those allegations and\narguments are waived. See, e.g., Menz v. Procter & Gamble Health Care Plan, 520\nF.3d 865, 868 (8th Cir. 2008).\n\n -2-\n\f22700, 2014 WL 7184039 (S.D. FL Dec. 17, 2014). Bank of America’s unopposed\nstatement of material facts established that Calon was a member of the class; he was\nmailed a notice of the settlement by the settlement administrator that included a claim\nform; the settlement notice was not returned as undeliverable; and Calon did not\nobject to or request exclusion from the settlement class. Bank of America also noted\nthat, in his reply to a prior court order, Calon admitted that he used “essentially the\nsame form, format and information” used in the class action. “The only real\ndifference,” he stated, “is that Plaintiff changed the Class nature and identification of\nthe Hall class action [to] an individual’s private action.” Based on these facts, the\ndistrict court concluded that the LPI claims in eleven Counts of the First Amended\nComplaint predated the effective date of the settlement agreement, July 6, 2015, and\nare therefore barred by the doctrine of res judicata.\n\n “[U]nder elementary principles of prior adjudication a judgment in a properly\nentertained class action is binding on class members in any subsequent litigation.”\nCooper v. Fed. Res. Bank of Richmond, 467 U.S. 867, 874 (1984). When a class\naction ends in a settlement with benefits to the class, a class member with actual\nnotice is barred from later asserting individual claims that class members released in\nthe settlement agreement. In re Gen. Am. Life Ins. Sales Prac. Lit., 357 F.3d 800,\n802-03 (8th Cir. 2004). A class member to be bound must receive due process; “[t]he\nmost important element of due process is adequate notice.” Id. at 804. Here, the\nrecord contains ample evidence that Calon received actual notice of the settlement in\nHall. We affirm the dismissal of these eleven claims. We also affirm the dismissal\nof two claims based on Bank of America’s failure to honor Calon’s alleged early\npayoff rights (Counts XIV and XIX) for the reasons stated by the district court.\n\n The most difficult issue is the grant of summary judgment dismissing three\nclaims based on allegations in the First Amended Complaint that Calon’s mortgage\nloan agreement with Countrywide included an “eEasy Rate Reduction Plan” that gave\nCalon as borrower the option to reduce the loan interest rate “from 7.625% to\n\n -3-\n\fapproximately 5.25%” in exchange for a $350 fee. The First Amended Complaint\nalleged that Calon applied to Countrywide in December 2007 to reduce his interest\nrate under this Plan; that Countrywide advised him in early January 2008 that the new\npayment arrangement would begin in February; but that Bank of America took over\nCountrywide later that month, wrongfully “nullified” this contractual right in August,\nrefused to arbitrate the issue, and threatened to accelerate the loan to foreclosure if\nCalon took the issue to court.\n\n In the motion for summary judgment, Bank of America attached a copy of the\nthree-page “eEasy Rate Reduction Plan” document. Relying solely on the face of the\ndocument, and Calon’s deposition testimony that the document was not signed by\nanyone and was not referenced in the Note or Deed of Trust, Bank of America argued\nthat these three claims fail as a matter of law because “the alleged contract was not\na signed writing, as required by the Statute of Frauds,” Mo. Rev. Stat. § 432.010.1.\nThe district court agreed. We do not.\n\n In the district court, Bank of America argued that the “eEasy Rate Reduction\nPlan” is an “alleged contract [that] was not a signed writing.” It is true that the Plan\ndocument itself was not signed by Countrywide, the party to be charged. But\nCalon’s First Amended Complaint, fairly construed, alleged that the Plan was an\nintegral part of a financial arrangement that included one or more documents signed\nby Countrywide. This brings into play a well-established principle of Missouri law\nthe district court did not address: “When separate documents are relied on to\nestablish the existence of an agreement, they must be connected by express reference\nto one another or by clear implication established through their respective contents.”\nMayer v. King Cola Mid-Am., Inc., 660 S.W.2d 746, 748 (Mo. App. 1983) (emphasis\nadded, citation omitted); see Vess Beverages, Inc. v. Paddington Corp., 941 F.2d 651,\n654 (8th Cir. 1991) (“Even if only one of the documents is signed, the requirement\nis satisfied as long as one document refers to the other, or their contents clearly show\nthey are related.”).\n\n -4-\n\f Here, the three-page Plan document -- which counsel for Bank of America\ndismissively refers to as a “Flier” -- looks like a contract document. The header lists\nthe date (the same date as the Note and Deed of Trust), “John C. Calon” as the\nborrower, the loan number, the property address, and contact information for the\nissuing Countrywide branch. The following eight sections explain in detail how\nCalon “can reduce the interest rate quickly and easily,” with “no loan closing, no\nthird-party closing costs or prepaid expenses, no hassle, and no stress.” On their face,\nregardless of the absence of express cross references, we think the financing\ndocuments, “by clear implication established through their respective contents,”\nreflect an agreement including any obligations created by the eEasy Rate Reduction\nPlan that satisfies the statute of frauds. At a minimum, we conclude that Bank of\nAmerica, a successor-in-interest which introduced no evidence supporting its\nassertion that the Countrywide document was a mere “Flier,” failed to establish that\nthe statute of frauds bars these three claims as a matter of law on this record. Of\ncourse, we express no view as to the merits of those claims, which are not before us.\n\n This lawsuit has dragged on far too long, through no fault of the district court.\nThe Amended Scheduling Order deadlines for amending the pleadings, completing\ndiscovery, submitting expert reports, and filing motions for summary judgment are\nlong passed. Without in any way limiting the district court’s case management\ndiscretion on remand, we conclude the court would not abuse its discretion by\npromptly setting the remaining three claims for trial.\n\n The judgment of the district court is reversed in part and the case is remanded\nfor further proceedings not inconsistent with this opinion.\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365537/", "author_raw": "LOKEN, Circuit Judge."}]}	LOKEN	BOWMAN	SHEPHERD	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588284/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,721	UNITED STATES of America, Plaintiff - Appellee v. Alauna Gaye MORRIS, Defendant - Appellant	United States v. Alauna Morris	2019-02-08	18-1810	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1810\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Alauna Gaye Morris\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Sioux City\n ____________\n\n Submitted: November 16, 2018\n Filed: February 8, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Alauna Gaye Morris conditionally pled guilty to conspiracy to distribute\nmethamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The\ndistrict court1 sentenced her to 120 months’ imprisonment. She appeals the denial of\n\n 1\n The Honorable Leonard T. Strand, Chief Judge, United States District Court\nfor the Northern District of Iowa, adopting the report and recommendation of the\n\fher motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, this court\naffirms.\n\n I.\n\n In September 2016, Deputy Taylor of the Clay County Sheriff’s Office\n(“CCSO”) stopped a recreational vehicle driven by Morris to execute an arrest\nwarrant. After the arrest, Deputy Taylor and another deputy impounded the RV.\nDuring an inventory search, they found marijuana, two glass pipes, and a digital scale.\nThey did not complete the inventory, testifying it “didn’t seem reasonable to continue\nsearching” because parts of the RV were “inaccessible.” The next day, with a search\nwarrant, they found 69.5 grams of meth at her residence. The next week, with a\nsearch warrant, they found 138 grams of meth and $9,500 in cash in the RV.\n\n Morris moved to suppress “all evidence and ‘fruits of the poisonous tree’\nobtained as a result of the unlawful seizure and search” of her RV. After a\nsuppression hearing, the magistrate judge recommended denying the motion. The\ndistrict court adopted the magistrate’s findings and recommendation. Morris appeals,\narguing the inventory search was unlawful. Reviewing the denial of a motion to\nsuppress, this court reviews “legal conclusions de novo and factual findings for clear\nerror.” United States v. Woods, 747 F.3d 552, 555 (8th Cir. 2014). “A credibility\ndetermination made by a district court after a hearing on the merits of a motion to\nsuppress is virtually unassailable on appeal.” United States v. Frencher, 503 F.3d\n701, 701 (8th Cir. 2007) (internal quotation marks omitted).\n\n\n\n\nHonorable Kelly K.E. Mahoney, United States Magistrate Judge for the Northern\nDistrict of Iowa.\n\n -2-\n\f II.\n\n Morris argues the government failed to prove the CCSO had a standardized\npolicy for impounding and inventorying vehicles. The record does not contain a copy\nof the written policy because Morris objected to its admission at trial. However,\nDeputy Taylor testified about it. According to him, since August 2015, the CCSO\nhas had a written policy about impounding and inventorying vehicles. It designates\nfour times a deputy may impound a vehicle: (1) abandonment; (2) accident; (3) driver\narrest; or (4) traffic hazard. The policy allows, but does not require, deputies to\nrelease a vehicle to a registered, insured driver. It is CCSO practice to release\nvehicles only to drivers present at the time of the stop.\n\n Once impounded, the policy requires deputies to inventory a vehicle’s contents,\nincluding the trunk, for items valued at $25 or more. Although not written in the\npolicy, it is CCSO practice to inventory containers if deputies believe they may have\nitems valued at $25 or more. The policy requires deputies to complete a full\ninventory unless unreasonable to do so.\n\n The absence of the written policy in the record does not preclude establishing\nits content. “While a written policy may be preferable, testimony can be sufficient\nto establish police impoundment procedures.” United States v. Betterton, 417 F.3d\n826, 830 (8th Cir. 2005). Based on Deputy Taylor’s testimony, the magistrate judge\nfound that Deputy Taylor:\n\n [D]id follow the standardized criteria outlined in the written impound\n policy and the standard practices of the sheriff’s office. Deputy Taylor\n was forthright when he testified. He is familiar with the practices of the\n sheriff’s office, which were the same before and after the impound\n policy was written. I further credit Deputy Taylor’s testimony about the\n policy and practices in light of his years of service with the sheriff’s\n\n\n\n -3-\n\f office, his duties as a routine patrol deputy, and the fact that he\n impounds vehicles several times per week.\n\nAdopting the magistrate’s findings, the district court added, “Regarding his\ndepartment’s policy, Taylor was unwavering that he knew that the arrest of the\nvehicle driver and existence of a roadside hazard were two instances in which the\npolicy allows officers to impound a vehicle.” The district court did not err in finding\nthe CCSO had an impoundment and inventory policy.\n\n III.\n\n Morris next contends that either the deputies did not follow the policy or the\npolicy contained “impermissible, unfettered discretion.” “[A]n impoundment policy\nmay allow some latitude and exercise of judgment by a police officer when those\ndecisions are based on legitimate concerns related to the purposes of an\nimpoundment.” Id. (internal quotation marks omitted). The exercise of police\ndiscretion is not prohibited “so long as that discretion is exercised according to\nstandard criteria and on the basis of something other than suspicion of evidence of\ncriminal activity.” Colorado v. Bertine, 479 U.S. 367, 375 (1987).\n\n The magistrate judge said:\n\n I find that Deputy Taylor followed the sheriff’s office’s policy in\n deciding to impound Defendant’s RV. Two conditions that allow for\n impoundment existed in this case: the driver had been arrested and there\n was no other available driver, and the RV posed a hazard. Each of these\n conditions serve legitimate law enforcement functions of community\n caretaking and providing for public safety.\n\nThis finding was not clear error.\n\n\n\n -4-\n\f Morris argues the deputies should have allowed her husband to pick up the\nvehicle rather than impounding it. However, “[n]othing in the Fourth Amendment\nrequires a police department to allow an arrested person to arrange for another person\nto pick up his car to avoid impoundment and inventory.” United States v. Agofsky,\n20 F.3d 866, 873 (8th Cir. 1994). “Police may take protective custody of a vehicle\nwhen they have arrested its occupants, even if it is lawfully parked and poses no\npublic safety hazard.” United States v. Arrocha, 713 F.3d 1159, 1163 (8th Cir. 2013).\nWhile the deputies could have allowed Morris’s husband to pick up the RV, they\nwere not required to do so. The district court did not err in finding that “[g]iven the\nfact that Morris was arrested alone in a rural area, Taylor’s decision to use his\ndiscretion to impound the vehicle was legitimate and reasonable.”\n\n The district court also did not err in finding the deputies followed the inventory\npolicy without “impermissible, unfettered discretion.” “Inventory searches are one\nof the well-defined exceptions to the warrant requirement of the Fourth Amendment.”\nUnited States v. Frasher, 632 F.3d 450, 454 (8th Cir. 2011). “[I]nventory procedures\nserve to protect an owner’s property while it is in the custody of the police, to insure\nagainst claims of lost, stolen, or vandalized property, and to guard the police from\ndanger.” Bertine, 479 U.S. at 372. “The search must be reasonable in light of the\ntotality of the circumstances.” United States v. Beal, 430 F.3d 950, 954 (8th Cir.\n2005).\n\n Once impounded, the policy requires deputies to inventory the contents of the\nvehicle, including its trunk, for items valued at $25 or more. Consistent with the\npolicy, two deputies inventoried the RV, compiling a list of items. During the\ninventory, they found marijuana and pipes in a closed sunglasses case, and a digital\nscale in a purse. Morris believes the inventory was improper because the policy does\nnot address closed containers. This belief has no merit. Because the policy required\nan inventory of the entire vehicle, it was reasonable for the deputies to open\ncontainers believed to have items valued at $25 or more. See United States v.\n\n -5-\n\fWallace, 102 F.3d 346, 349 (8th Cir. 1996) (holding that a “policy requiring\ninventory of the contents of a vehicle and any containers therein covers inventory of\nlocked trunks”); United States v. Como, 53 F.3d 87, 92 (5th Cir. 1995) (“Allowing\nan officer to exercise his judgment based on concerns related to the objectives of an\ninventory search does not violate the Fourth Amendment.”). As the magistrate judge\nfound, “the deputies acted reasonably in looking inside Defendant’s purse and the\nglasses case as both items could have likely contained items worth more than\n$25.00.” The district court did not err in finding the inventory search complied with\npolicy and was not unlawful.\n\n The decision to terminate the inventory also complied with policy. As Deputy\nTaylor testified, the deputies “completed the inventory to the best of our ability.”\nThey terminated it not because they wanted to “apply for a search warrant,” but\nbecause the back of the RV was a small, confined space, inaccessible due to the\nthorny plants, which Morris had described as “exotic.” Rather than risk damaging the\nplants, they decided not to proceed. The magistrate judge found this testimony\ncredible and “in line with the sheriff’s office’s inventory policy.” This was not clear\nerror.\n\n The district court did not err in finding the deputies followed policy, reasonably\nexercising their discretion, when necessary, in impounding and inventorying the\nvehicle.\n\n IV.\n\n Morris maintains the district court erred in finding that “following a\nstandardized policy excused the improper motive and subsequent search.” “The\npolice are not precluded from conducting inventory searches when they lawfully\nimpound the vehicle of an individual that they also happen to suspect is involved in\nillegal activity.” United States v. Harris, 795 F.3d 820, 822 (8th Cir. 2015). “Rather,\n\n -6-\n\fwhen police are conducting inventory searches according to such standardized\npolicies, they may keep their eyes open for potentially incriminating items that they\nmight discover in the course of an inventory search, as long as their sole purpose is\nnot to investigate a crime.” Id. (internal quotation marks omitted). “The search of\na vehicle to inventory its contents must nevertheless be reasonable under the totality\nof the circumstances, and may not be ‘a ruse for a general rummaging in order to\ndiscover incriminating evidence.’” United States v. Taylor, 636 F.3d 461, 464 (8th\nCir. 2011), quoting Florida v. Wells, 495 U.S. 1, 4 (1990) (internal citation omitted).\n“The reasonableness requirement is met when an inventory search is conducted\naccording to standardized police procedures, which generally remove the inference\nthat the police have used inventory searches as a purposeful and general means of\ndiscovering evidence of a crime.” Id. (internal quotation marks omitted). “Even if\npolice fail to adhere to standardized procedures, the search is nevertheless reasonable\nprovided it is not a pretext for an investigatory search.” Id. at 465.\n\n The policy required the deputies to inventory all items valued at $25 or more.\nDuring the inventory, the deputies found incriminating evidence. Their suspicion\nMorris was engaged in criminal activity does not establish that the sole purpose of the\nsearch was investigative. See United States v. Pappas, 452 F.3d 767, 771 (8th Cir.\n2006) (“A valid traffic stop cannot be challenged, as Pappas alleges here, on the basis\nthat the stop was actually a pretext for an investigation of another crime.”). The\ndistrict court did not err in finding that “Taylor was well within his department’s\npolicy to impound the vehicle for legitimate non-investigatory reasons.”\n\n *******\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365974/", "author_raw": "BENTON, Circuit Judge."}]}	BENTON	BEAM	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588721/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,723	Raul GARDEA, Plaintiff - Appellant v. JBS USA, LLC; Swift Pork Company, Defendants - Appellees ConAgra Foods, Inc., Defendant	Raul Gardea v. JBS USA. LLC	2019-02-08	17-2163	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Erickson, Magnuson", "parties": "", "opinions": [{"author": "MAGNUSON, District Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2163\n ___________________________\n\n Raul Gardea\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n JBS USA, LLC; Swift Pork Company\n\n lllllllllllllllllllllDefendants - Appellees\n\n ConAgra Foods, Inc.\n\n lllllllllllllllllllllDefendant\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: December 13, 2018\n Filed: February 8, 2019\n ____________\n\nBefore LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District\nJudge.\n ____________\n\n\n\n 1\n The Honorable Paul A. Magnuson, United States District Judge for the\nDistrict of Minnesota, sitting by designation.\n\fMAGNUSON, District Judge.\n\n Appellant Raul Gardea appeals the District Court’s2 grant of summary\njudgment in favor of Appellees JBS USA, LLC and Swift Pork Company\n(collectively, “JBS”). For the following reasons, we affirm.\n\nI. Background\n\n Appellant Raul Gardea worked at Appellee Swift Pork Company, a wholly\nowned subsidiary of Appellee JBS USA, as a maintenance mechanic at JBS’s pork\nprocessing facility in Marshalltown, Iowa. In early 2014, Gardea was treated for\ncarpal tunnel syndrome in his right wrist. In February 2014, Gardea’s main treating\nphysician, Dr. Paulson, imposed a temporary work restriction limiting Gardea to\nlifting no more than 40 pounds with his right arm.\n\n Gardea’s temporary work restrictions changed multiple times throughout 2014,\nas his physicians continued to increase and lower the amount of work he could do\nwith his right arm based upon his capacity and level of pain. JBS accommodated\nGardea’s work restrictions during this time by giving him light duty work.\n\n Finally, in October 2014, Gardea underwent a functional capacity evaluation\n(“FCE”). Based on the FCE, the testing physician imposed new work restrictions:\nwaist to floor lifting of 35 pounds; waist to crown lifting of 25 pounds; bilateral\ncarrying of 30 pounds; and right unilateral carrying of 15 pounds. Gardea’s physician\nalso noted that he had significant difficulty holding, grabbing, and releasing tools,\nand doubted his ability to return to work as a mechanic. In November 2014, Dr.\n\n\n\n 2\n The Honorable John A. Jarvey, United States District Judge for the Southern\nDistrict of Iowa.\n\n -2-\n\fPaulson concluded that Gardea had reached maximum medical improvement and\nmade the work restrictions from the FCE permanent.\n\n JBS determined that Gardea could no longer perform the duties of a\nmaintenance mechanic because of his permanent work restrictions. Specifically, JBS\nconcluded that it could not accommodate Gardea’s lifting restrictions because his job\nduties required him to regularly lift objects weighing more than 40 pounds. On\nDecember 1, 2014, JBS told Gardea that he was medically disqualified from the\nmaintenance mechanic position due to his permanent restrictions. JBS offered\nGardea six replacement jobs that would not interfere with his work restrictions.\nGardea had no interest in the jobs for various reasons, including pay, hours, and job\nresponsibilities, and he turned down every offer. JBS placed him on medical leave\nwithout pay, stating that he was free to apply for other jobs as they came open.\nInstead, Gardea found other employment and his employment with JBS ended\nautomatically after 12 months on leave.\n\n Gardea filed suit against JBS pursuant to the Americans with Disabilities Act\n(“ADA”), the Iowa Civil Rights Act (“ICRA”), and the Iowa Wage Payment\nCollection Law (“IWPCL”). Gardea’s complaint contained two counts: first, a\nfailure-to-accommodate claim and a termination claim under the ADA and ICRA, and\nsecond, an IWPCL claim, alleging that JBS intentionally failed to pay Gardea a\nportion of his earned wages. In March 2017, JBS sought summary judgment on all\nissues. In May 2017, the district court granted JBS’s motion for summary judgment.\nGardea appealed.\n\n\n\n\n -3-\n\fII. Discussion\n\nA. Standard of Review\n\n We review a grant of summary judgment de novo. Torgerson v. City of\nRochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is\nproper “if the pleadings, the discovery and disclosure materials on file, and any\naffidavits show that there is no genuine issue as to any material fact and that the\nmovant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).\n\nB. Failure-to-Accommodate Claim\n\n The first count of Gardea’s complaint pleads a failure-to-accommodate claim\nunder the ADA and ICRA. We analyze ADA and ICRA disability discrimination\nclaims under the same standards. Tjernagel v. Gates Corp., 533 F.3d 666, 671 (8th\nCir. 2008).\n\n To prevail on a failure-to-accommodate claim, a plaintiff “must first make a\nfacial showing that he has an ADA disability and that he has suffered [an] adverse\nemployment action. Then he must make a facial showing that he is a ‘qualified\nindividual.’” Fenney v. Dakota, Minn. & E. R. Co., 327 F.3d 707, 712 (8th Cir.\n2003). When the employee has made his facial showing, “[t]he burden then shifts to\nthe employer to show that it is unable to accommodate the employee.” Id. (quotation\nomitted).\n\n 1. Disability\n\n The ADA defines “disability” as “a physical or mental impairment that\nsubstantially limits one or more major life activities of [an] individual.” 42 U.S.C.\n§ 12102(1). The District Court held that Gardea was “arguably disabled” under the\n\n\n -4-\n\fADA, and therefore there was a genuine issue of material fact precluding summary\njudgment on that issue. Gardea v. JBS USA LLC, No. 4:15-cv-00474, 2017 WL\n5904675 at 2, 5 (S.D. Iowa, May 11, 2017).\n\n JBS argues that Gardea is not disabled within the meaning of the ADA because\nlifting restrictions do not substantially limit any major life activities. (Appellees’ Br.\nat 24.) However, lifting restrictions may qualify as a disability under the ADA\nAmendments Act (“ADAAA”), which relaxed the requirements for showing a\ndisability. See Fleishman v. Continental Cas. Co., 698 F.3d 598, 606 n.3 (7th Cir.\n2012) see 42 U.S.C. § 12102(4)(stating “[t]he definition of disability in this chapter\nshall be construed in favor of broad coverage”). In this case, the District Court relied\non Equal Employment Opportunity Commission regulations, which broadened the\ndefinition of disability in the wake of the ADAAA, in determining that Gardea’s\nlifting restrictions arguably qualified as a disability. Gardea, 2017 WL 5904675 at\n3.\n\n While lifting restrictions may qualify as a disability under the ADAAA, we\nneed not make that determination. As discussed further below, even if Gardea is\ndisabled, he is not qualified to perform the essential functions of his job, and his\nclaim fails on that basis.\n\n 2. Qualification\n\n In order to show that he is a qualified individual under the ADA, Gardea must\nprove that he was able “to perform the essential functions of the position, with or\nwithout reasonable accommodation.” Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir.\n2016) (quotation omitted). Essential functions of the position are “the fundamental\njob duties of the employment position the individual with a disability holds or\ndesires.” 29 C.F.R. § 1630.2(n)(1). Accommodations are not reasonable if an\nemployer “can demonstrate that the accommodation would impose undue hardship\n\n -5-\n\fon the operation of the business.” 42 U.S.C. § 12112(5)(A). An employee must show\nthat an accommodation is “reasonable on its face.” U.S. Airways, Inc. v. Barnett, 535\nU.S. 391, 401 (2002).\n\n As the district court found, lifting is an essential function of the maintenance\nmechanic position. The record shows that mechanics must have the ability to lift\nobjects weighing up to 100 pounds, carry ladders and motors in excess of 40 pounds,\nand frequently perform lifting between 10 and 50 pounds. (JA at 27, ¶¶ 25-27, 517-\n518, 560.) Gardea does not directly dispute that lifting is an essential function, but\nrather challenges the frequency with which heavy lifting is required in his position.\nHowever, “a task may be an essential function even if the employee performs it for\nonly a few minutes each week.” Minnihan v. MediaCom Commc’ns Corp., 779 F.3d\n803, 812 (8th Cir. 2015). The record shows that heavy lifting is commonplace in the\nmaintenance mechanic position. Therefore, the lifting of objects heavier than Gardea\ncan lift is an essential function.\n\n Gardea also alleges that his lifting restriction could have been reasonably\naccommodated because (1) assistance from other mechanics was available and (2) the\nuse of lift-assisting devices was available.\n\n First, assistance from other mechanics is not a reasonable accommodation.\n“‘[A]n accommodation that would cause other employees to work harder, longer, or\nbe deprived of opportunities is not mandated’ under the ADA.” Id. at 813 (quotation\nomitted). Because Gardea’s lifting limitations are so restrictive, he would require\nassistance lifting many commonplace objects involved in his job, including all ladders\nand machinery. The record reflects that certain storage areas are too small for two\npeople to perform a lift, and other mechanics are not always available to assist others\nin lifting objects. (JA at 28, ¶¶ 32-33.) Because this accommodation would require\nJBS to extensively change its practices and work environment, it is unreasonable.\n\n\n\n -6-\n\f Second, the accommodation of lift-assisting devices is also unreasonable in this\nsituation. Lift-assisting devices require overhead beams, which are not found in all\nareas of JBS’s plant. (JA at 526, ¶ 29). Additionally, objects are sometimes in tight\nquarters which makes use of assisting devices impractical, and some lift-assisting\ndevices require employees to first lift an object by hand onto the device. (JA at 527,\n¶ 30.) It is utterly impractical to expect that a mechanic can function properly when\nhe needs an assisting device to lift most objects, including ladders. Gardea’s\nproposed accommodation is not reasonable on its face and would impose an undue\nhardship on the operation of JBS’s business.\n\n Finally, Gardea argues that the replacement positions JBS offered did not\nqualify as reasonable accommodations, and therefore JBSs did not engage in the\n“interactive process” as required under the ADA. See Kallail v. Alliant Enegergy\nCorp. Servs., Inc., 691 F.3d 925, 933 (8th Cir. 2012). “If an employer has offered\nreassignment as a reasonable accommodation, then the employee must offer evidence\nshowing both that the position offered was inferior to [the employee’s] former job and\nthat a comparable position for which the employee was qualified was open.” Id. at\n933 (quotation omitted).\n\n The jobs JBS offered Gardea had a lower rate of hourly pay, and therefore may\nbe considered “inferior.” However, Gardea has failed to show that a position\ncomparable to his maintenance mechanic job was available. Gardea claims JBS did\nnot offer him a labeling job that he desired, but the record reflects that the labeling\nposition was already filled and offered an even lower rate of pay than the others JBS\noffered. (JA at 534 ¶ 36.) Because JBS offered Gardea several jobs within his\nrestrictions, and he has failed to show that other, more comparable jobs were\navailable, the district court was correct in holding that JBS fairly engaged in the\ninteractive process and its attempts to accommodate Gardea with other jobs were\nreasonable.\n\n\n\n -7-\n\f Lifting is an essential function of the maintenance mechanic position that could\nnot be reasonably accommodated, and Gardea has failed to show that\naccommodations JBS offered were unreasonable. Therefore, Gardea is not a qualified\nindividual under the ADA and summary judgment in JBS’s favor was proper.\n\nC. Termination Claim\n\n Gardea also argues that JBS violated the ADA and ICRA by placing him on\nmedical leave and then terminating him 12 months later. To prevail on this claim,\nGardea must show “that [he] (1) is disabled within the meaning of the ADA, (2) is a\nqualified individual under the ADA, and (3) has suffered an adverse employment\ndecision because of his disability.” Tramp v. Associated Underwriters, Inc., 768 F.3d\n793, 804 (8th Cir. 2014). As analyzed above, because Gardea was not a qualified\nindividual under the ADA, his termination claim also fails.\n\nD. IWPCL Claim\n\n The IWPCL requires employers in Iowa to pay all wages when due. Iowa Code\n§ 91A.8. If an Iowa employers intentionally violates its wage-payment obligations,\nthen “the employer shall be liable to the employee for any wages . . . that are so\nintentionally failed to be paid . . . plus liquidated damages, court costs and any\nattorney’s fees . . . ” Iowa Code § 91A.8.\n\n Gardea claims that JBS violated the IWPCL by failing to pay all wages he was\ndue from July 25, 2014 through September 12, 2014. However, JBS’s payroll records\nreflect that he was paid correctly and any errors in Gardea’s hours were quickly\nremedied. (JA at 69-71, 539 ¶¶ 43-44.) Gardea submitted charts to support his\nargument but concedes that the information therein is from his own recollection.\n\n\n\n\n -8-\n\f(Appellant’s Reply Br. at 20, n.4.)3 Because mere allegations are insufficient to rebut\na properly supported motion for summary judgment, the district court correctly\ngranted summary judgment on this issue.\n\nIII. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n 3\n The District Court struck handwritten information on the charts, which\nGardea continues to rely on, because it was unreliable. (JA at 608.)\n\n -9-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365976/", "author_raw": "MAGNUSON, District Judge."}]}	LOKEN	ERICKSON	MAGNUSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588723/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,726	HOUSTON CASUALTY COMPANY, Plaintiff - Appellee v. STRATA CORPORATION, Defendant - Appellant Houston Casualty Company, Plaintiff - Appellant v. Strata Corporation, Defendant - Appellee	Houston Casualty Company v. Strata Corporation	2019-02-08	17-3404; 17-3405	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3404\n ___________________________\n\n Houston Casualty Company\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Strata Corporation\n\n lllllllllllllllllllllDefendant - Appellant\n ___________________________\n\n No. 17-3405\n ___________________________\n\n Houston Casualty Company\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Strata Corporation\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeals from United States District Court\n for the District of North Dakota - Fargo\n ____________\n\f Submitted: October 17, 2018\n Filed: February 6, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n Strata Corporation appeals the district court’s1 order granting summary\njudgment to its excess insurer Houston Casualty Company and denying its cross-\nmotion for summary judgment. We affirm.\n\n In July 2012, Strata employee Peter Faust fell to his death at a Montana mine.\nWhile Montana’s Workers’ Compensation Act generally provides the exclusive\nremedy for workplace injuries, Mont. Code Ann. § 39-71-411, Faust’s estate brought\nsuit alleging that Strata’s intentional failure to maintain a safe workplace triggered\nan exception and gave it a cause of action against Strata, see id. § 39-71-413.\n\n Strata had a Workers Compensation and Employers Liability Insurance Policy\nfrom Liberty Mutual Insurance Company that included a coverage limit of $500,000\nfor each accident. The policy excluded coverage for certain acts, including “[b]odily\ninjury intentionally caused or aggravated” by Strata. The policy also included a\nMontana Intentional Injury Exclusion Endorsement excluding coverage for “[b]odily\ninjury caused by [Strata’s] intentional, malicious or deliberate act, whether or not the\nact was intended to cause injury to the employee injured, or whether or not [Strata]\nhad actual knowledge that an injury was certain to occur.” Strata also had a\n\n 1\n The Honorable Ralph R. Erickson, then United States District Judge for the\nDistrict of North Dakota, now Circuit Judge for the United States Court of Appeals\nfor the Eighth Circuit.\n\n -2-\n\fCommercial Excess Liability Policy from Houston Casualty Company that provided\nup to $5 million in excess coverage over and above the underlying Liberty Mutual\npolicy limits. This excess policy “followed form” with the underlying Liberty Mutual\npolicy. In particular, the Houston Casualty excess policy provided that “[u]nder no\ncircumstances will this coverage be broader than” the Liberty Mutual policy, and it\nstated that it was “subject to the same terms, conditions, agreements, exclusions and\ndefinitions” as the Liberty Mutual policy.\n\n As the primary insurer, Liberty Mutual defended Strata against the Faust\nestate’s lawsuit, subject to a reservation of rights. Strata eventually settled the lawsuit\nwith Faust’s estate, and Liberty Mutual contributed a portion of the settlement in\nexchange for a release from Strata. Houston Casualty refused to contribute anything\ntoward the settlement, forcing Strata to pay the remaining balance from its own funds.\n\n Houston Casualty brought suit seeking a declaratory judgment that it had no\nduty to defend or indemnify Strata and that it did not breach its duty of good faith.\nStrata counterclaimed. On cross-motions for summary judgment, the district court\nconcluded that North Dakota law applied, granted summary judgment to Houston\nCasualty, and denied summary judgment for Strata. Strata appealed the district\ncourt’s order, and Houston Casualty cross-appealed, maintaining that the district court\nerred in finding that the settlement exhausted the underlying policy limits.\n\n We review a district court’s grant of summary judgment de novo and may\naffirm on any ground supported by the record. Moyle v. Anderson, 571 F.3d 814, 817\n(8th Cir. 2009). Summary judgment is proper if “the movant shows that there is no\ngenuine dispute as to any material fact and the movant is entitled to judgment as a\nmatter of law.” Fed. R. Civ. P. 56(a). Applying this standard, we conclude that the\ndistrict court properly granted summary judgment to Houston Casualty because the\nexcess insurance policy did not cover the Faust estate’s claims against Strata in the\n\n\n\n -3-\n\funderlying lawsuit. Thus, Houston Casualty had no duty to indemnify Strata, and it\ndid not breach its duty of good faith.\n\n On appeal, Strata points out that Houston Casualty’s excess policy does not\nexpressly state that it is subject to endorsements to Liberty Mutual’s underlying\npolicy. Arguing that the policy must be construed strictly against the insurer, Strata\nmaintains that this omission means that the Montana Intentional Acts Exclusion\nEndorsement cannot limit the scope of coverage. Strata further contends that this\nendorsement is ambiguous, even if it does apply, and thus should not preclude\ncoverage here. These arguments are unavailing. The excess policy expressly states\nthat it is subject to exclusions in the underlying coverage. An exclusion is no less an\nexclusion because it is incorporated into the underlying policy through an\nendorsement. Under the policy’s plain language, in other words, coverage is subject\nto the Montana Intentional Acts Exclusion Endorsement.\n\n Nor is that provision ambiguous. To evade the exclusivity provision of\nMontana’s Workers’ Compensation Act, Faust’s estate alleged that Strata’s deliberate\nand intentional acts caused his death. Those allegations necessarily brought Faust’s\nlawsuit within the Montana Intentional Acts Exclusion Endorsement, which excludes\ncoverage for “[b]odily injury caused by [Strata’s] intentional, malicious or deliberate\nact, whether or not the act was intended to cause injury to the employee injured, or\nwhether or not [Strata] had actual knowledge that an injury was certain to occur.”\nIndeed, this language is more sweeping than the language in Section 413, which it\ntracks and amplifies. See Mont. Code Ann. § 39-71-413(3) (“‘[I]ntentional injury’\nmeans an injury caused by an intentional and deliberate act that is specifically and\nactually intended to cause injury to the employee injured and there is actual\nknowledge that an injury is certain to occur.”). As a result, Houston Casualty has no\nduty to indemnify Strata under the excess policy.\n\n\n\n\n -4-\n\f Furthermore, because the excess policy does not provide coverage for Faust’s\nclaims, Houston Casualty did not breach its duty of good faith. Under North Dakota\nlaw, an “insurer has a duty to act fairly and in good faith in dealing with its insured,\nincluding a duty of fair dealing in paying claims, providing defenses to claims,\nnegotiating settlements, and fulfilling all other contractual obligations.” Hartman v.\nEstate of Miller, 656 N.W.2d 676, 680 (N.D. 2003). An insurer acts in bad faith\nwhen it “acts unreasonably in handling an insured’s claim . . . by failing to\ncompensate an insured for a loss covered by a policy, unless the insurer has a proper\ncause for refusing payment.” Id. at 681. For the reasons explained above, Houston\nCasualty had a proper cause for refusing payment because Strata’s loss was not\ncovered by its excess insurance policy. Citing Montana and Ninth Circuit cases,\nStrata argues that the reasonableness of Houston Casualty’s actions must be measured\nat the time its claim first arose rather than with hindsight. But given the policy\nlanguage, it was clear from the time of the Faust estate’s original complaint that the\nexcess policy did not provide coverage.\n\n Finally, we may easily dispose of the remaining issues. First, Strata argues that\nHouston Casualty breached its duty to defend in the underlying lawsuit. But the duty\nto defend is not at issue in this case because Strata’s primary insurer, Liberty Mutual,\ndefended it during the litigation. Second, Houston Casualty acknowledged at oral\nargument that its cross-appeal would be moot if we affirmed the district court’s grant\nof summary judgment. Thus, we need not consider it here.\n\n For all these reasons, we affirm the district court order granting summary\njudgment to Houston Casualty and denying summary judgment to Strata, and we\ndismiss the cross-appeal as moot.\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365979/", "author_raw": "GRUENDER, Circuit Judge."}]}	SMITH	LOKEN	GRUENDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588726/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,727	Cheri Marie HANSON, AS TRUSTEE FOR the Next of Kin of Andrew Derek LAYTON, Plaintiff - Appellee v. Daniel BEST ; Audrey Burgess; Craig Frericks; Kyley Groby; Matthew Huettl; Kenneth Baker, Individually and Acting in Their Official Capacities as City of Mankato Department of Public Safety Police Officers, Defendants - Appellants Gold Cross Ambulance; Michael Jason Burt; Thomas John Drews, Defendants	Cheri Marie Hanson v. Daniel Best	2019-02-08	17-3821	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Shepherd, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3821\n ___________________________\n\n Cheri Marie Hanson, as trustee for the next of kin of Andrew Derek Layton\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Daniel Best; Audrey Burgess; Craig Frericks; Kyley Groby; Matthew Huettl;\n Kenneth Baker, individually and acting in their official capacities as City of\n Mankato Department of Public Safety Police Officers\n\n lllllllllllllllllllllDefendants - Appellants\n\n Gold Cross Ambulance; Michael Jason Burt; Thomas John Drews\n\n lllllllllllllllllllllDefendants\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: November 14, 2018\n Filed: February 8, 2019\n ____________\n\nBefore COLLOTON, SHEPHERD, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\f Appellee brought an action under 42 U.S.C. § 1983 against Appellants, police\nofficers with the Mankato Department of Public Safety, in their individual capacities,\nalleging the officers used excessive force and exhibited deliberate indifference to\nmedical needs in an incident that led to the death of her son. Appellants appeal the\ndistrict court’s denial of their motion for summary judgment based on qualified\nimmunity. We find that the officers’ use of force did not violate clearly established\nlaw nor did their actions on the scene exhibit deliberate indifference to medical needs.\nHaving jurisdiction under the collateral order doctrine,1 we reverse.\n\n I.\n\n Early in the morning of January 1, 2013, dispatch summoned Mankato police\nofficer Daniel Best to a Hy-Vee grocery store to check on a man sleeping in the foyer.\nAt 4:45 a.m., Best found Andrew Layton sleeping on the floor in the fetal position\nwith a jacket pulled over his head. Best assumed Layton was intoxicated and\nattempted to wake him by tapping him with his hand. Layton awoke and responded\naggressively. Best forced Layton to the ground using a foot sweep and held him down\non his stomach as Layton began making loud groaning and growling noises. Best\ncalled for assistance. As Best ordered Layton to put his hands behind his back, Layton\ncontinued to yell incoherently, thrash his arms, kick his legs, and twist away. Private\n\n\n\n\n 1\n Hanson contends that we lack jurisdiction to hear this appeal, arguing\nAppellants contest primarily factual matters. We disagree. We have jurisdiction to\nthe extent that we may resolve “abstract questions of law related to the qualified-\nimmunity determination—typically, whether the allegedly infringed federal right was\nclearly established.” Thompson v. Murray, 800 F.3d 979, 982-83 (8th Cir. 2015).\nTherefore, while we may not determine “whether or not the pretrial record sets forth\na ‘genuine’ issue of fact for trial,” Johnson v. Jones, 515 U.S. 304, 320 (1995), we\nmay address whether the district court’s facts, “as a ‘purely legal issue,’ involve a\nclearly established violation of federal law.” Walton v. Dawson, 752 F.3d 1109, 1116\n(8th Cir. 2014) (quoting Johnson, 515 U.S. at 313).\n\n -2-\n\fcitizens at the Hy-Vee helped Best hold Layton down until other Mankato officers\narrived at 4:47 a.m.\n\n Seeing Best’s struggle, Officer Kenneth Baker used knee strikes on Layton’s\nshoulder and knelt on Layton’s back. Officer Matthew Huettl grabbed one of\nLayton’s arms to prevent him from pushing himself up. Baker struck Layton’s right\narm up to six times with a closed fist. Officer Kyley Groby held down Layton’s legs\nand lower back as the other officers tried to handcuff Layton. Groby held Layton’s\nhead down in an unsuccessful attempt to make Layton stop resisting.\n\n Officer Audrey Burgess arrived to see four officers struggling with Layton. She\ndeployed her taser twice in drive-stun mode against Layton’s thigh. Finally, officers\nhandcuffed Layton with two sets of cuffs. He continued to kick, injuring Best and\nBurgess. Officers applied a hobble restraint, connecting leg restraints to Layton’s\nhandcuffs, and Layton began rolling side-to-side while restrained in a prone position.\nWhen Layton began spitting at the officers, they used a spit mask. Best commented\nthat he believed Layton was “methed out.” Commander Craig Frericks, who arrived\nduring the struggle, thought similarly and requested that Layton be transported to the\njail by ambulance because using the squad car would require removal of Layton’s\nrestraints. Frericks also feared that Layton could asphyxiate.\n\n To prevent Layton from harming himself before the ambulance arrived, Baker\nand Huettl remained beside him as he continued to intermittently struggle against his\nrestraints and make loud noises. Layton would have brief moments of calm followed\nby continued resistance that Huettl described as “tensing his muscle[s], yelling and\ngroaning, pushing his body to the point of exhaustion, rocking his head back and\nforth, and violently flexing and shaking.” Officers determined that keeping Layton\nin a prone position was best given his continued resistance, and Baker pressed\nLayton’s shoulders to the ground while Groby held Layton’s thighs.\n\n\n\n -3-\n\f Paramedics Michael Burt and Thomas Drews arrived with an ambulance at 5:05\na.m. Having recognized Layton’s name after checking his identification, Baker told\nthe paramedics that Layton was known to abuse methamphetamine and alcohol; other\nofficers stated Layton’s reaction was consistent with his behavior in prior police\ninteractions. Burt and Drews assessed Layton’s breathing, airway circulation, and\nheart rate. Concluding that Layton did not require emergency medical treatment, Burt\nand Drews determined he could be safely transported to jail. Baker, Huettl, Groby,\nand Frericks lifted Layton onto a cot and unhooked his leg restraints from his\nhandcuffs. Burt and Drews attempted to place Layton on his side, but because he\nrolled back to his stomach, they placed a pillow under his shoulder and turned his\nhead to prevent him from lying flat. Baker knelt on Layton’s shoulder to apply a wrist\nrestraint then let the paramedics position the other straps over Layton.\n\n Best and Baker rode in the ambulance with Layton, who continued to struggle\non the cot. To prevent Layton from falling off, Baker held Layton’s shoulder to the\ncot while Burt monitored Layton’s pulse and breathing. Layton did not stop moving\nuntil he entered the jail’s sally port. When they moved Layton into the booking area\nof the jail, officers discovered Layton was in cardiac arrest. They removed his\nrestraints, initiated CPR, and applied a defibrillator. While they restored a cardiac\nrhythm and brought Layton to a hospital, Layton never regained consciousness. He\ndied on January 5, 2013. His autopsy determined Layton suffered from pneumonia\ndue to probable excited delirium, atherosclerotic heart disease, and liver disease. His\nbody had multiple abrasions and contusions; there was bleeding between his skull and\nscalp and in his neck. He tested positive for amphetamine and alcohol.\n\n\n\n\n -4-\n\f Appellee Cheri Marie Hanson, Layton’s mother,2 sued Best, Burgess, Frericks,\nGroby, Huettl, and Baker in their individual capacities under 42 U.S.C. § 1983 for\nusing excessive force after restraining Layton in violation of the Fourth Amendment\nand for exhibiting deliberate indifference to his serious medical needs in violation of\nthe Fourteenth Amendment. The officers sought summary judgment, invoking\nqualified immunity. The district court denied the motion as to both claims.\n\n II.\n\n “We review a district court’s qualified immunity determination on summary\njudgment de novo, viewing the record in the light most favorable to [the nonmoving\nparty] and drawing all reasonable inferences in her favor.” Krout v. Goemmer, 583\nF.3d 557, 564 (8th Cir. 2009).\n\n “Qualified immunity involves the following two-step inquiry: (1) whether the\nfacts shown by the plaintiff make out a violation of a constitutional or statutory right,\nand (2) whether that right was clearly established at the time of the defendant’s\nalleged misconduct.” Mitchell v. Shearrer, 729 F.3d 1070, 1074 (8th Cir. 2013). The\ncourt may exercise its discretion “in deciding which of the two prongs of the qualified\nimmunity analysis should be addressed first in light of the circumstances in the\nparticular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).\n\n With respect to her excessive force claim, Hanson alleges the officers violated\nthe Fourth Amendment by keeping Layton restrained in a prone position for an\nexcessive length of time, causing his death. We first examine the clearly-established\nprong because it is dispositive. See Smith v. City of Minneapolis, 754 F.3d 541, 546\n\n 2\n According to her complaint, Hanson “was duly appointed trustee by Order of\nthe District Court of Nicollet County, State of Minnesota, to prosecute a civil action\nfor the benefit of the next of kin of her son, pursuant to the provisions of the\nMinnesota Wrongful Death Statute, Minn. Stat. § 573.02(3).” Dist. Ct. Dkt. 1.\n\n -5-\n\f(8th Cir. 2014). “To be clearly established, a legal principle . . . must be ‘settled law’\n. . . [that is] clear enough that every reasonable official would interpret it to establish\nthe particular rule the plaintiff seeks to apply.” District of Columbia v. Wesby, 138\nS. Ct. 577, 589-90 (2018) (citations and internal quotation marks omitted). Because\nthe plaintiff has the burden of demonstrating that the law confirming her constitutional\nright was clearly established, Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir.\n2007), Hanson must identify “controlling authority” from the Supreme Court or our\nprior case law or “a ‘robust consensus of cases of persuasive authority’” that places\nthe constitutional question “beyond debate.” De La Rosa v. White, 852 F.3d 740, 746\n(8th Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)), cert. denied,\n138 S. Ct. 737 (2018). In this case, she can do neither. This court has not deemed\nprone restraint unconstitutional in and of itself the few times we have addressed the\nissue. See Ryan v. Armstrong, 850 F.3d 419, 427-28 (8th Cir. 2017) (affirming\nqualified immunity where officers held arrestee down in prone position and tased\nhim); Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th Cir. 1997) (affirming the\nreasonableness of force used in placing a resisting, hobbled suspect in a prone position\nto transport her to the jail). In Henderson v. Munn, we denied qualified immunity\nwhen, in addition to using prone restraint, a police officer pepper-sprayed an injured\nsuspect. 439 F.3d 497, 502-03 (8th Cir. 2006). Under these cases, there is no clearly\nestablished right against the use of prone restraints for a suspect that has been\nresisting. The decisions of our sister circuits are similarly factually distinct. Mindful\nof the Supreme Court’s repeated admonition against defining clearly established law\n“at a high level of generality,” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)\n(quoting al-Kidd, 563 U.S. at 742), we find that the fact-intensive qualified immunity\nanalyses in comparable appellate cases have yet to produce a sufficiently\nparticularized “robust consensus,” De La Rosa, 852 F.3d at 746, about prolonged\nprone restraint. See Wesby, 138 S. Ct. at 590 (noting that the clearly established\nstandard requires a right to be defined with “a high degree of specificity”). Therefore,\nthe right at issue is not clearly established, and the officers are entitled to qualified\nimmunity on Hanson’s excessive force claim.\n\n -6-\n\f III.\n\n As to Hanson’s second claim alleging denial of Layton’s right to medical\ntreatment, we first examine whether a constitutional violation occurred. Although her\nclaim arises under the Fourteenth Amendment, we analyze such allegations under the\nEighth Amendment deliberate indifference standard. See Carpenter v. Gage, 686 F.3d\n644, 650 (8th Cir. 2012). This standard has both an objective and subjective prong:\nLayton must have “demonstrate[d] that he suffered an objectively serious medical\nneed” while, subjectively, the officers must have “had actual knowledge of those\nneeds but deliberately disregarded them.” Id. “Where the medical professionals [at\nthe scene] . . . never even suggest[] that treatment was warranted, there is insufficient\nevidence that a need for medical treatment was so obvious that [law enforcement]\nexhibited deliberate indifference by taking [a suspect] to jail.” Id. at 651.\n\n Hanson alleges that Layton was clearly suffering from excited delirium\nsyndrome such that transporting him directly to jail was inappropriate. However, this\nallegation is undercut by the paramedics’ presence at the scene, and the undisputed\nfact that the paramedics performed a medical assessment of Layton. Because medical\nprofessionals never suggested Layton had emergency medical needs, the urgent nature\nof Layton’s condition could not have been “obvious” to a layperson. Id. at 651.\nFurthermore, because the officers called paramedics in the hopes of safely\ntransporting Layton and then stayed beside Layton as he was transported, they did not\n“deliberately disregard[]” his medical needs. Id. Because neither prong of the\ndeliberate indifference standard is met, the officers did not violate Layton’s\nconstitutional right to medical care and therefore are entitled to qualified immunity.\n\n\n\n\n -7-\n\f IV.\n\n We reverse the denial of qualified immunity to the officers and remand for\nfurther proceedings consistent with this opinion.\n ______________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365980/", "author_raw": "SHEPHERD, Circuit Judge."}]}	COLLOTON	SHEPHERD	STRAS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588727/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,290	UNITED STATES of America, Plaintiff-Appellee, v. Lashone GATES, Defendant-Appellant.	United States v. Lashone Gates	2019-02-11	17-2494	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2494\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Lashone Gates\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: November 14, 2018\n Filed: February 11, 2019\n [Published]\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Lashone Gates claims for the first time on appeal that a provision in his plea\nagreement waiving his right to request or receive records pursuant to the Freedom of\nInformation Act (“FOIA”), 5 U.S.C. § 552, violates public policy and is, therefore,\ninvalid. Lacking jurisdiction, we dismiss his appeal.\n\f Gates pleaded guilty to violating 18 U.S.C. § 2423(d) and (e) for attempting to\narrange, for the purpose of private financial gain, the travel of a person in interstate\ncommerce in order to engage in a commercial sex act with a person under 18 years\nof age. As part of his written plea agreement, Gates waived his appellate and post-\nconviction rights. That waiver excluded from its scope collateral attacks on the\ngrounds of ineffective assistance of counsel and prosecutorial misconduct. Gates also\nwaived his right “to request or receive from any department or agency of the United\nStates any records pertaining to the investigation or prosecution of this case\nincluding, without limitation, any records that may be sought under the Freedom of\nInformation Act, 5 U.S.C. § 552.” Gates did not challenge the validity of this FOIA\nwaiver before the district court.\n\n On appeal, Gates challenges the FOIA waiver “in connection with a collateral\nattack on grounds permitted by his appeal waiver: ineffective assistance of counsel\nor prosecutorial misconduct.” He claims that “[n]o legitimate criminal justice interest\njustifies Gates’ FOIA waiver as it relates to claims of ineffective assistance of counsel\nand prosecutorial misconduct.” The waiver, he adds, “harms FOIA’s primary policy\nobjective, namely, to promote public oversight of government processes, here, the\ncriminal justice process.” Notably, Gates does not actually bring claims for\nineffective assistance of counsel or prosecutorial misconduct. He also does not allege\nthat he requested or was denied any records on the basis of his FOIA waiver.\n\n We lack jurisdiction because Gates’s FOIA waiver claim is not ripe. “The\nripeness doctrine is grounded in both the jurisdictional limits of Article III of the\nConstitution and policy considerations of effective court administration.” KCCP Tr.\nv. City of N. Kansas City, 432 F.3d 897, 899 (8th Cir. 2005). “Ripeness requir[es] us\nto evaluate both the fitness of the issues for judicial decision and the hardship to the\nparties of withholding court consideration.” Texas v. United States, 523 U.S. 296,\n300-01 (1998) (internal quotation marks omitted). “The fitness prong safeguards\nagainst judicial review of hypothetical or speculative disagreements.” Parrish v.\nDayton, 761 F.3d 873, 875 (8th Cir. 2014) (internal quotation marks omitted). The\n\n -2-\n\fhardship prong considers whether delayed review “inflicts significant practical harm”\non the petitioner. Id.\n\n The validity of Gates’s FOIA waiver is not fit for judicial review because Gates\nhas not requested any records from the government pursuant to FOIA. Despite the\nFOIA waiver, Gates is not precluded from requesting records from the government,\nand the government is not obligated to deny his request. Also, if the government\nwere to deny his request, Gates could challenge that denial in a separate action. For\nexample, in Price v. U.S. Dep’t of Justice Attorney Office, a criminal defendant\nentered into a plea agreement containing a FOIA waiver identical to the FOIA waiver\nin Gates’s plea agreement. 865 F.3d 676, 678, 686 n.2 (D.C. Cir. 2017).\nNevertheless, the defendant submitted a FOIA request to the Federal Bureau of\nInvestigation. Id. at 678. The FBI denied his request, reasoning that the defendant\nhad waived his right to receive such records related to his case. Id. The defendant\nchallenged that denial in federal district court. Id. The district court addressed his\nwaiver arguments, and the D.C. Circuit reviewed on appeal the question of whether\nthe FBI lawfully withheld the records. Id.\n\n Gates also will not suffer harm if we do not address his claim. He does not\nallege that he currently needs records “pertaining to the investigation or prosecution\nof this case,” much less that he has any reason to believe that such records will enable\nhim to bring a colorable claim for either ineffective assistance of counsel or\nprosecutorial misconduct, the two types of appeals permitted by his plea agreement.\n\n For these reasons, Gates’s FOIA waiver claim is not ripe. Deciding it now\nwould amount to the issuance of an advisory opinion in violation of Article III. See\nKCCP Tr., 432 F.3d at 899 (“Article III limits the federal courts to deciding ‘Cases’\nand ‘Controversies’ and thus prohibits us from issuing advisory opinions.”). We are\nwithout jurisdiction and dismiss the appeal.\n ______________________________\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366543/", "author_raw": "PER CURIAM"}]}	GRUENDER	KELLY	GRASZ	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589290/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,291	UNITED STATES of America, EX REL. Stephanie STRUBBE; Carmen Trader; Richard Christie, Relators, Plaintiffs-Appellants v. CRAWFORD COUNTY MEMORIAL HOSPITAL; Bill Bruce, Individually, Defendants-Appellees	United States Ex Rel. Strubbe v. Crawford Cnty. Mem'l Hosp.	2019-02-11	18-1022	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1022\n ___________________________\n\n United States of America, ex rel. Stephanie Strubbe; Carmen Trader; Richard\n Christie, relators\n\n lllllllllllllllllllllPlaintiffs - Appellants\n\n v.\n\n Crawford County Memorial Hospital; Bill Bruce, Individually\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Sioux City\n ____________\n\n Submitted: November 13, 2018\n Filed: February 11, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Stephanie A. Strubbe, Carmen Trader, and Richard Christie sued Crawford\nCounty Memorial Hospital (CCMH) as relators in a qui tam action for violations of\nthe False Claims Act. 31 U.S.C. § 3729(a). They also sued CCMH and its Chief\nExecutive Officer, Bill Bruce, for violating the FCA’s anti-retaliation provision.\n\n§ 3730(h). The district court1 granted CCMH’s motion to dismiss all counts of the\ncomplaint, except Strubbe’s retaliation claim. As for it, the district court granted\nCCMH’s motion for summary judgment. Strubbe v. Crawford Cty. Mem’l Hosp.,\n2017 WL 8792692 (N.D. Iowa Dec. 6, 2017). Having jurisdiction under 28 U.S.C.\n§ 1291, this court affirms.\n\n I.\n\n Crawford County Memorial Hospital is a county-owned nonprofit hospital in\nIowa. In April 2012, Bruce became its Chief Executive Officer.\n\n At CCMH, Strubbe was an Emergency Medical Technician (EMT), and Christie\nand Trader were paramedics. They filed a sealed qui tam complaint as relators in\nApril 2015. The United States declined to intervene. The relators filed an amended\ncomplaint. It alleges that CCMH submitted false claims for Medicare reimbursement\nand made false statements or reports to get fraudulent claims paid. Specifically, Count\nI alleges that CCMH violated the FCA by submitting (1) claims for breathing\ntreatments administered by paramedics; (2) claims for laboratory services done by\nparamedics and EMTs; (3) claims with false credentials of service providers; (4)\nclaims for EMT and paramedic services at Eventide, L.L.C. and Denison Care Center;\nand (5) cost reports with improper reimbursements and payments to vendors for non-\nCCMH expenses. Count II alleges CCMH knowingly made or used false statements\nto get false claims paid, including (1) records documenting breathing treatments at 30\nminutes; (2) records listing paramedics as “specialized ancillary staff” for breathing\ntreatments; (3) reimbursement requests and invoices for improper payments for non-\nCCMH expenses; (4) documents with false credentials for emergency medical staff;\n\n\n\n\n 1\n The Honorable Leonard T. Strand, Chief Judge, United States District Court\nfor the Northern District of Iowa.\n\n -2-\n\nand (5) cost reports with false costs. Count III alleges that CCMH conspired with\nEventide to violate the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b.\n\n Strubbe, Trader, and Christie also sued CCMH and Bruce for violating the\nFCA’s anti-retaliation provision. According to the complaint, Strubbe began\nreviewing hospital financial documents in July 2014. Soon after, she “spoke to all\nBoard members about the financial situation of CCMH [and] her belief that the\nfinances were not adding up.” In November, Strubbe tore her rotator cuff at work.\nInitially, CCMH put her on “light duty.” In July 2015, however, CCMH told Strubbe\nher light-duty assignments were a financial hardship for the hospital and moved her\nto part-time status. CCMH removed Strubbe from part-time status in March 2016\n(effectively a termination).\n\n Christie and Trader also began investigating CCMH’s finances in 2014. They\ncomplained to other hospital staff that “there was something wrong with the changes\nin the breathing treatments.” Christie also complained there was “potentially\nsomething wrong with the financial statements provided by CCMH to the Board.” In\nJanuary 2015, Christie reported to her supervisor that Jonathan Richard was “not\nproperly licensed” as a paramedic. Both Christie and Trader then reported the license\nviolation to the Iowa Department of Public Health. Four months later, CCMH\ntransitioned Christie from night shifts to day shifts. It terminated Christie later that\nmonth for speeding while driving an ambulance. Trader still works at CCMH as a\nparamedic, but claims that it subjects him to harrassment and other discriminatory\ntreatment.\n\n CCMH moved to dismiss the complaint. The district court dismissed the\nsubstantive FCA claims for failure to plead with particularity because the complaint\ndid not set forth facts showing any false claims were submitted, or plead how the\nrelators acquired this information. It also dismissed Christie and Trader’s retaliation\nclaims as not stating a plausible claim for relief. However, the court denied CCMH’s\n\n -3-\n\nmotion to dismiss Strubbe’s retaliation claim. CCMH then moved for summary\njudgment on it. Concluding that Strubbe could not prove a prima facie case of\nretaliation, the district court granted summary judgment to CCMH.\n\n II.\n\n This court reviews de novo the district court’s dismissal of a claim under Rule\n9(b), “accepting the allegations contained in the complaint as true and drawing all\nreasonable inferences in favor of the nonmoving party.” United States ex rel. Joshi\nv. St. Luke’s Hosp., Inc., 441 F.3d 552, 555 (8th Cir. 2006). The False Claims Act\n(FCA) imposes liability on anyone who “knowingly presents, or causes to be\npresented, a false or fraudulent claim for payment or approval” or who “knowingly\nmakes, uses, or causes to be made or used, a false record or statement material to a\nfalse or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A)-(B). “The FCA attaches\nliability, not to the underlying fraudulent activity, but to the claim for payment.”\nOlson v. Fairview Health Servs. of Minn., 831 F.3d 1063, 1070 (8th Cir. 2016). Qui\ntam provisions permit private persons, relators, to sue for violations in the name of the\nUnited States and to recover part of the proceeds if successful. § 3730(b), (d).\n\n “Because the FCA is an anti-fraud statute, complaints alleging violations of the\nFCA must comply with Rule 9(b).” Joshi, 441 F.3d at 556. Under Rule 9(b), “a party\nmust state with particularity the circumstances constituting fraud or mistake.” This\ngives defendants notice and protects them from baseless claims. United States ex rel.\nThayer v. Planned Parenthood of the Heartland, 765 F.3d 914, 918 (8th Cir. 2014).\nWhile Rule 9(b) is “context specific and flexible,” id., a plaintiff cannot meet this\nburden with conclusory and generalized allegations. Joshi, 441 F.3d at 557. Where\n“the facts constituting the fraud are peculiarly within the opposing party’s\nknowledge,” the “allegations may be pleaded on information and belief” if\n“accompanied by a statement of facts on which the belief is founded.” Drobnak v.\nAndersen Corp., 561 F.3d 778, 783-84 (8th Cir. 2009).\n\n -4-\n\n To satisfy the particularity requirement for FCA claims, “the complaint must\nplead such facts as the time, place, and content of the defendant’s false\nrepresentations, as well as the details of the defendant’s fraudulent acts, including\nwhen the acts occurred, who engaged in them, and what was obtained as a result.”\nJoshi, 441 F.3d at 556. A relator can meet the Rule 9(b) requirements by pleading (1)\n“representative examples of the false claims,” or (2) the “particular details of a scheme\nto submit false claims paired with reliable indicia that lead to a strong inference that\nclaims were actually submitted.” Thayer, 765 F.3d at 918. To satisfy the particular\ndetails requirement, the complaint must “provide sufficient details to enable the\ndefendant to respond specifically and quickly to the potentially damaging allegations.”\nId. at 918-19.\n\n A.\n\n In Count I, the relators contend that CCMH submitted false claims through a\nwide-ranging fraudulent scheme. First, the complaint alleges that shortly after Bruce\nbecame CEO, CCMH required paramedics to perform breathing treatments previously\nprovided by nursing staff. Hospital management told employees this change was for\n“billing” and “cost reimbursement purposes” and required them to document each\ntreatment at 30 minutes, regardless of its length. The complaint alleges—upon\ninformation and belief—that these changes allowed CCMH to bill these treatments\nseparately to get a higher reimbursement from Medicare. Further, the complaint\nalleges that CCMH treats paramedics as “specialized staff,” making the treatments\nseparately billable. Relators also contend—upon information and belief—that patients\nare receiving breathing treatments who do not need them.\n\n Second, the complaint alleges that CCMH ordered paramedics and EMTs to\nperform laboratory services, like blood draws. The relators claim—upon information\nand belief—that this change, like the breathing treatments, was intended to increase\nMedicare reimbursement by allowing CCMH to bill these services separately. Third,\n\n -5-\n\nthe complaint identifies three employees with misclassified titles. For example, the\ncomplaint alleges—upon information and belief—that CCMH billed Medicare for\nRichard’s services as a paramedic, though he was “not properly licensed.” Fourth, the\nrelators claim paramedics and EMTs provided services at two other health care\nfacilities—Eventide and Denison. Based on information and belief, CCMH instituted\nthis change to increase Medicare reimbursement. Finally, the complaint alleges that\nCCMH reported improper expenses to Medicare. Relators contend—upon\ninformation and belief—that CCMH submitted cost reports to Medicare with\npayments to Bruce’s relatives above the market value and with duplicate payments\nto the credit card companies and the sellers.\n\n Relators did not plead representative samples of false claims. In Joshi, a\nhospital anesthesiologist brought a qui tam claim alleging that the hospital sought\nMedicare reimbursements at higher rates and submitted claims for services and\nsupplies not provided. Joshi, 441 F.3d at 554. Joshi did not provide representative\nsamples, but alleged that every claim over a sixteen-year period was fraudulent. Id.\nat 556-57. Though Rule 9(b) does not require alleging the “specific details of every\nalleged fraudulent claim,” this court dismissed Joshi’s claim because a relator “must\nprovide some representative examples of [the] alleged fraudulent conduct, specifying\nthe time, place, and content of [the] acts and the identity of the actors.” Id. at 557.\n\n The relators here pleaded more than the relator in Joshi. However, like Joshi,\nthe complaint here alleges a fraudulent scheme without representative examples with\nthe required specificity. For instance, the complaint alleges CCMH submitted false\nclaims for unnecessary breathing treatments. It gives one example of a patient who\nreceived an unnecessary breathing treatment, but fails to include the date, the provider\nperforming the treatment, any specific information about the patient, what money was\nobtained, and most importantly, whether a claim was actually submitted for that\nparticular patient.\n\n\n\n -6-\n\n Under Thayer, a relator can also satisfy Rule 9(b) by pleading the “particular\ndetails of a scheme to submit false claims paired with reliable indicia that lead to a\nstrong inference that claims were actually submitted.” Thayer, 765 F.3d at 918. The\nallegations in Count I are close to meeting this standard. The complaint includes some\ndetails of the fraudulent scheme. It pleads the names of the individuals that instructed\nthem to carry out the breathing treatments and blood draws, the two-year period when\nthese services were provided, and statements by their supervisor that the changes to\nthe breathing treatments were for billing and cost reimbursement purposes. The\ncomplaint also pleads how hospital management told them to document each\nbreathing treatment at 30 minutes, regardless of its length. It includes the names of\nthree individuals who relators believed were misclassified, and how Christie and\nTrader learned of Richard’s licensure violation. The relators also give some details\nabout one receipt for gas and moving expenses that was allegedly altered.\n\n However, the complaint lacks the sufficient indicia of reliability leading to a\nstrong inference that claims were actually submitted. In Thayer, the relator—a center\nmanager for several Planned Parenthood clinics—alleged a fraudulent scheme. Id. at\n919. This court emphasized that the relator’s position as center manager gave her\npersonal knowledge that false claims were submitted and allowed her to plead specific\ndetails about the billing system and practices, providing sufficient indicia of reliability\nfor two of Thayer’s claims. Id. This court dismissed another claim where Thayer did\nnot have “access to the billing systems . . . [or] knowledge of their billing practices,”\nleaving her “only able to speculate that false claims were submitted . . . .” Id. at 919-\n20.\n\n The relators here—paramedics and EMTs—did not have access to the billing\ndepartment. The complaint did not include any details about CCMH’s billing\npractices. See United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190-91 (5th\nCir. 2009) (“Confronting False Claims Act defendants with both an alleged scheme\nto submit false claims and details leading to a strong inference that those claims were\n\n -7-\n\nsubmitted—such as dates and descriptions of recorded, but unprovided, services and\na description of the billing system that the records were likely entered into—gives\ndefendants adequate notice of the claims.”). Nor did the complaint allege that the\nrelators had personal knowledge of the billing system or the submission of false\nclaims. See United States ex rel. Prather v. Brookdale Senior Living Cmtys., 838\nF.3d 750, 769-70 (6th Cir. 2016) (relator’s allegations gave reliable indicia because\nshe had knowledge of billing documentation and pleaded specific details like the\ntreatment of four patients, the dates of care, the dates the false certification occurred,\nand the amount requested for final payment). Some of the facts pleaded—such as\ntheir supervisor’s statements that the changes to breathing treatments were for billing\nand cost reimbursement purposes—shows the possibility that CCMH submitted\nclaims. However, the facts pleaded do not “lead to a strong inference that claims were\nactually submitted.” Thayer, 765 F.3d at 918 (emphasis added). See Chesbrough v.\nVPA, P.C., 655 F.3d 461, 472 (6th Cir. 2011) (“[T]his is not a situation in which the\nalleged facts support a strong inference—rather than simply a possibility—that a false\nclaim was presented to the government.”); Corsello v. Lincare, Inc., 428 F.3d 1008,\n1013 (11th Cir. 2005) (declining to “make inferences about the submission of\nfraudulent claims because such an assumption would ‘strip[ ] all meaning from Rule\n9(b)’s requirements of specificity’”) (alteration in original).\n\n The relators pleaded many key facts upon information and belief, without\nproviding a “statement of facts on which the belief is founded.” Drobnak, 561 F.3d\nat 784. See, e.g., Compl. ¶ 59 (“Upon information and belief, Richard’s services were\nbilled, in part, to Medicare. Richard was not, however, licensed in the State of Iowa\nas a paramedic.”). They allege, “Certain vendors paid by the hospital are personally\nrelated to Bruce and their services are paid well above market value. For example,\nthousands of dollars have been paid to Bruce’s brother, who, upon information and\nbelief, owns an out-of-state moving company . . . [which] is paid from CCMH funds\nto move doctors . . . when it would be more economical to use a local moving\ncompany.” Id. ¶ 74. Relators then claim, upon information and belief, that these\n\n -8-\n\nexpenses were included in cost reports to Medicare. They do not explain how they\nknow Bruce’s brother owns a moving company or that CCMH is using it. A\ngeneralized allegation that the hospital paid vendors above market value and\nsubmitted a false cost report—without a statement of facts on which the belief is\nfounded—does not sufficiently demonstrate that these were improper expenses or\nwere included on cost reports. See Drobnak, 561 F.3d at 784 (when pleading on\ninformation and belief, allegations must be “accompanied by a statement of facts on\nwhich the belief is founded”).\n\n Other allegations, which are not pleaded upon information and belief, similarly\ndo not identify the underlying basis for the assertions. See Thayer, 765 F.3d at 919\n(“Thayer’s claims thus have sufficient indicia of reliability because she provided the\nunderlying factual bases for her allegations.”). For instance, the relators plead, “The\nparamedics were told by their managers, in writing, that no matter how long the\nbreathing treatments took, to document on the timesheets that the treatments took at\nleast 30 minutes. These timesheets are used in billing to Medicare.” Compl. ¶ 30.\nThe relators—who do not allege personal knowledge of the hospital’s billing\npractices—do not explain how they knew the timesheets were used to bill Medicare.\nThey also do not plead a single example where they performed a breathing treatment\nin less than 30 minutes.\n\n Because the relators failed to plead fraud with particularity, the district court\nproperly dismissed Count I under Rule 9(b).\n\n B.\n\n In Count II, relators sued under 31 U.S.C. § 3729(a)(1)(B), which imposes\nliability on anyone who “knowingly makes, uses, or causes to be made or used, a false\nrecord or statement material to a false or fraudulent claim.” The false statements\nalleged include: records for 30-minute breathing treatments, records for breathing\n\n -9-\n\ntreatments listing paramedics as “specialized ancillary staff,” improper payment\nrequests for non-CCMH expenses, documents misclassifying employees like Richard,\nand cost reports listing false costs. Though claims under § 3729(a)(1)(B) do not\nrequire proof that CCMH submitted a false claim, relators must still “plead a\nconnection between the alleged fraud and an actual claim made to the government.”\nUnited States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 916 (6th Cir.\n2017). See United States ex rel. Grant v. United Airlines, Inc., 912 F.3d 190, 200\n(4th Cir. 2018) (reasoning that a relator asserting a claim under § 3729(a)(1)(B) “is\nstill required to show that a false claim was submitted to the government”). Cf.\nGrubbs, 565 F.3d at 193 (“[T]he recording of a false record, when it is made with the\nrequisite intent” to get a false claim paid “is enough to satisfy the statute . . . .”). The\ncomplaint here, as discussed above, fails to connect the false records or statements to\nany claim made to the government. Further, like Count I, many of the allegations are\nfounded upon information and belief without a statement of facts on which the belief\nis founded. Drobnak, 561 F.3d at 784. Count II was properly dismissed.\n\n C.\n\n Count III alleges that CCMH conspired with Eventide to violate the Anti-\nKickback Statute. To satisfy Rule 9(b)’s particularity requirements, this claim must\nplead the details of a conspiracy, including an agreement between CCMH and\nEventide, and an overt act in furtherance of the conspiracy. Grubbs, 565 F.3d at 193.\nBecause the complaint does not include any details about an agreement, the relators\nfail to plead the conspiracy with particularity. The district court properly dismissed\nthe conspiracy claim.\n\n III.\n\n The FCA protects employees who are “discharged, demoted, . . . harassed, or\nin any other manner discriminated against in the terms and conditions of employment\n\n -10-\n\nbecause of lawful acts done by the employee . . . in furtherance of” a civil action under\nthe FCA “or other efforts to stop 1 or more violations” of the FCA. 31 U.S.C. §\n3730(h). To prove retaliation in violation of the FCA, a plaintiff must prove that “(1)\nthe plaintiff was engaged in conduct protected by the FCA; (2) the plaintiff’s\nemployer knew that the plaintiff engaged in the protected activity; (3) the employer\nretaliated against the plaintiff; and (4) the retaliation was motivated solely by the\nplaintiff’s protected activity.” Schuhardt v. Washington Univ., 390 F.3d 563, 566\n(8th Cir. 2004).\n\n The relators allege that Bruce can be held individually liable for his acts in their\nFCA retaliation claims. CCMH—not Bruce—is the relators’ employer. They appear\nto argue that a 2009 amendment to the FCA—which removed an explicit reference to\nretaliatory acts by an “employer”—expands liability. Before the 2009 amendment,\nfederal courts—including this court—uniformly held that the FCA did not impose\nindividual liability for retaliation claims. See United States ex rel. Golden v.\nArkansas Game & Fish Comm’n, 333 F.3d 867, 870-71 (8th Cir. 2003). After the\n2009 amendment, numerous courts still hold that the FCA does not create individual\nliability because Congress deleted the word “employer” so contractors and agents\ncould bring FCA retaliation claims. E.g., Howell v. Town of Ball, 827 F.3d 515, 529-\n30 (5th Cir. 2016). “Congress acts with knowledge of existing law, and [ ] absent a\nclear manifestation of contrary intent, a . . . revised statute is presumed to be\nharmonious with existing law and its judicial construction.” Estate of Wood v. C.I.R.,\n909 F.2d 1155, 1160 (8th Cir. 1990). Because Congress did not amend the FCA to\nimpose individual liability, the FCA does not impose individual liability for retaliation\nclaims. The district court correctly dismissed the claims against Bruce.\n\n A.\n\n To survive a motion to dismiss, the complaint must “state a claim to relief that\nis plausible on its face,” meaning that the “plaintiff pleads factual content that allows\n\n -11-\n\nthe court to draw the reasonable inference that the defendant is liable for the\nmisconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell\nAtlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). This court reviews de novo the\ndismissal for failure to state a claim. Drobnak, 561 F.3d at 783.\n\n The district court found that Christie and Trader did not engage in protected\nactivity and dismissed their claims. Christie and Trader claim they engaged in two\ndifferent types of protected activity: (1) complaining to hospital staff about the\nbreathing treatments, and (2) reporting Richard’s license violation to the State.\nAdditionally, Christie claims his investigations into CCMH’s financial matters are\nprotected activity. An employee’s conduct must satisfy two conditions to constitute\nprotected activity. Schuhardt, 390 F.3d at 567. First, it “must have been in\nfurtherance of an FCA action” or an effort to stop one or more FCA violations.\n§ 3730(h); Schuhardt, 390 F.3d at 567. Second, the conduct “must be aimed at\nmatters which are calculated, or reasonably could lead, to a viable FCA action,”\nmeaning the employee “in good faith believes, and . . . a reasonable employee in the\nsame or similar circumstances might believe, that the employer is possibly committing\nfraud against the government.” Schuhardt, 390 F.3d at 567.\n\n Even assuming Christie and Trader engaged in protected activity, their\nretaliation claims fail to state a plausible claim because they did not adequately plead\nthat CCMH knew they were engaging in protected activity. They must show CCMH\nknew they were “either taking action in furtherance of a private qui tam action . . . [,]\nassisting in an FCA action brought by the government,” or taking some other action\nto stop an FCA violation. Id. at 568; § 3730(h). Christie and Trader both complained\nto hospital staff about the breathing treatments and the financial situation at CCMH.\nChristie also emailed the compliance manager to inform CCMH he made a report\nabout Richard’s license “as required by Iowa law.” However, to provide actual or\nconstructive knowledge, employees must connect the alleged misconduct to fraudulent\nor illegal activity or the FCA. See Schuhardt, 390 F.3d at 568-69 (plaintiff gave her\n\n -12-\n\nemployer notice of protected activity after she advised her supervisor that the\norganization’s conduct could be “fraudulent and illegal” and that “if the OIG would\ncome in they would frown upon us and they’d pretty much wipe us out”). The\ncomplaint here does not allege that Christie and Trader told CCMH or the State that\nCCMH’s behavior was fraudulent or potentially subjected it to FCA liability.\nReporting a license violation to the State does not tell CCMH that these employees\nbelieve it is acting fraudulently, especially where Christie pleaded he was “required\nto tell” state officials about Richard’s license because “otherwise he himself could\nlose his licensure” under state law. Likewise, complaining to hospital staff about\nCCMH’s financial situation and the changes to breathing treatments does not give\nCCMH notice that Christie and Trader were taking action in furtherance of a qui tam\naction or to stop an FCA violation. Id. at 568.\n\n Because the relators did not sufficiently plead that CCMH knew they were\nengaging in protected activity, the district court properly dismissed their retaliation\nclaims.\n\n B.\n\n This court reviews de novo the grant of summary judgment, viewing all\nevidence most favorably to the nonmoving party. Id. at 566. Summary judgment is\nappropriate if there is no genuine issue of material fact and the moving party is\nentitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). CCMH is entitled to\nsummary judgment if Strubbe “has failed to make a sufficient showing on an essential\nelement of her case with respect to which she has the burden of proof.” See Celotex\nCorp. v. Catrett, 477 U.S. 317, 323 (1986).\n\n In the absence of direct evidence of retaliation, courts apply the McDonnell\nDouglas framework to retaliation claims. McDonnell Douglas Corp. v. Green, 411\nU.S. 792 (1973). While this court has not explicitly adopted this framework for FCA\n\n -13-\n\nretaliation claims, it applies it to other whistleblower statutes. See, e.g., Elkharwily\nv. Mayo Holding Co., 823 F.3d 462, 470 (8th Cir. 2016) (assuming without deciding\nthat the framework applies to the Emergency Medical Treatment Active Labor Act).\nMost of the other circuits use the framework for FCA retaliation claims. See Diaz v.\nKaplan Higher Educ., L.L.C., 820 F.3d 172, 175 & n.3 (5th Cir. 2016) (collecting\ncases and adopting the framework for FCA retaliation claims). This court will apply\nthe McDonnell Douglas framework to FCA retaliation claims.\n\n Under McDonnell Douglas, Strubbe bears the initial burden of establishing a\nprima facie case of FCA retaliation. Elkharwily, 823 F.3d at 470. To establish a\nprima facie case, Strubbe must show that (1) she engaged in protected conduct, (2)\nCCMH knew she engaged in protected conduct, (3) CCMH retaliated against her, and\n(4) “the retaliation was motivated solely by [Strubbe’s] protected activity.”\nSchuhardt, 390 F.3d at 566. If Strubbe establishes a prima facie case, the burden\nshifts to CCMH to “articulate a legitimate reason for the adverse action.” Elkharwily,\n823 F.3d at 470. The burden then shifts back to Strubbe to demonstrate that “the\nproffered reason is merely a pretext and that retaliatory animus motivated the adverse\naction.” Id.\n\n Like Christie and Trader, Strubbe’s complaints to the CCMH Board and sheriff\nabout “financial wrongdoing” and her investigations into CCMH’s finances are not\nprotected activity. There is no indication they were made in furtherance of an FCA\naction or were an effort to stop an FCA violation. She did not connect her concerns\nabout CCMH’s finances to fraud, the FCA, or any unlawful activity. See Green v. City\nof St. Louis, 507 F.3d 662, 667-68 (8th Cir. 2007) (reasoning the plaintiff did not\nengage in protected activity because he admitted he did not know whether the city\nsubmitted any document with false information when he complained about the city’s\npolicy). See also Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th\nCir. 1994) (recognizing that to engage in protected activity, an employee should\n\n\n\n -14-\n\n“express concerns about possible fraud to their employers”). However, Strubbe’s\nfiling of an FCA claim is protected conduct. § 3730(h).\n\n The complaint was unsealed in November 2015, alerting CCMH that Strubbe\nengaged in protected activity. Strubbe claims that CCMH had notice before this\nbecause the federal government sent informal interrogatories to CCMH in August\n2015 that mimicked the open records request her attorney sent in March. Strubbe\npresented no evidence, however, that CCMH knew her attorney sent that records\nrequest. Strubbe has shown only that CCMH had knowledge of her protected activity\nbeginning in November 2015.\n\n Retaliatory acts under the FCA include discharging, demoting, suspending,\nthreatening, harrassing, or otherwise discriminating against an employee.\n§ 3730(h)(1). Strubbe’s removal from part-time status—effectively a termination—in\nMarch 2016 is a retaliatory act.\n\n Strubbe cannot prove that her termination was solely motivated by protected\nactivity. She contends causation can be inferred because CCMH assigned her light-\nduty work after she was injured, but stopped once it learned of her FCA claim.\nMeanwhile, Stacey Kruse, another employee with a shoulder injury, continued to get\nlight-duty work. Strubbe claims that an email from CCMH to Kruse, describing Kruse\nas a “low key injured employee,” provides further proof CCMH removed her from\npart-time status because of her protected conduct. However, these events all occurred\nbefore CCMH knew Strubbe brought the FCA claim. They do not demonstrate\nCCMH terminated Strubbe solely because of her protected conduct.\n\n CCMH did not terminate Strubbe until four months after learning of her\ninvolvement in the FCA claim. By then, she had not performed work at CCMH for\nsix months. A temporal connection between the protected conduct and adverse action\nmay be sufficient to establish a prima facie case where the proximity is “very close.”\n\n -15-\n\nClark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam); Smith v.\nAllen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (two weeks between\nprotected conduct and adverse action sufficient to establish prima facie case).\nGenerally, however, “more than a temporal connection between the protected conduct\nand the adverse employment action is required to present a genuine factual issue on\nretaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en\nbanc). Here, the four months between the unsealing of the complaint and her removal\nfrom part-time status is too attenuated to establish a prima facie case. See Kipp v.\nMissouri Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (two\nmonths between complaint and termination “dilutes any inference of causation”).\n\n Even if the facts suggested Strubbe’s removal was solely motivated by her\nprotected conduct, CCMH has provided a legitimate, non-discriminatory reason.\nCCMH claims it removed Strubbe from part-time status under its policy requiring\nemployees to have worked in the previous six months. Strubbe can prove this reason\nis pretextual by showing CCMH “(1) failed to follow its own policies, (2) treated\nsimilarly-situated employees in a disparate manner, or (3) shifted its explanation of\nthe employment decision.” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899,\n904 (8th Cir. 2015). CCMH’s policy states, “The minimum requirement to remain a\nper diem employee is to have worked in the past six months . . . .” CCMH followed\nthis policy when it terminated Strubbe. By the time it removed her from part-time\nstatus, Strubbe had not worked as an EMT for over a year and had not performed any\nwork for CCMH for six months. CCMH has not changed its explanation for Strubbe’s\ntermination.\n\n Strubbe claims that CCMH treated Kruse, a similarly situated employee,\ndifferently by giving her light-duty work. Strubbe has not demonstrated that Kruse\nis similarly situated. She did not provide sufficient information detailing the\nsignificance of Kruse’s injury, her physical limitations, her position at CCMH, or\nwhether she had worked in the last six months. Further, CCMH sent Kruse the email\n\n -16-\n\ndescribing her as a “low key injured employee” before CCMH learned of Strubbe’s\nFCA claim. Strubbe cannot show that CCMH’s reason for her termination was\npretextual.\n\n The district court properly granted summary judgment for CCMH.\n\n *******\n\n The judgment is affirmed.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366544/", "author_raw": "BENTON, Circuit Judge."}, {"author": "BEAM, Circuit Judge, dissenting", "type": "dissent", "text": "BEAM, Circuit Judge, dissenting in part and concurring in part.\n\n I acknowledge that fraud cases receive more scrutiny at the pleadings stage than\nthe average civil case. In a fraud case, rather than simply providing notice in the\npleadings under Federal Rule of Civil Procedure 8, a plaintiff must \"state with\nparticularity the circumstances constituting fraud.\" Fed. R. Civ. P. 9(b). Originally,\nRule 8 required something akin to, \"I'm hurt, you did it, pay me.\" See Conley v.\nGibson, 355 U.S. 41, 45-46 (1957) (holding that \"a complaint should not be dismissed\nfor failure to state a claim unless it appears beyond doubt that the plaintiff can prove\nno set of facts in support of his claim which would entitle him to relief\"). But see Bell\nAtl. Corp. v. Twombly, 550 U.S. 544 (2007) & Ashcroft v. Iqbal, 556 U.S. 662 (2009)\n(effecting a landslide erosion of Conley's liberal construction of Rule 8's pleading\nstandard). Because the FCA is an anti-fraud statute, the complaint's false-claim\nallegations must comply with Rule 9(b). However because Rule 9 does not eliminate\nRule 8's notice pleading standard, Zayed v. Associated Bank, N.A., 779 F.3d 727, 733\n(8th Cir. 2015), and the relators' pleadings in Counts I and II of their complaint more\nthan adequately give notice, with particularity, of the fraud they are alleging, I dissent\nin part.\n\n\n\n\n -17-\n\n \"To satisfy the particularity requirement of Rule 9(b), the complaint must plead\nsuch facts as the time, place, and content of the defendant's false representations, as\nwell as the details of the defendant's fraudulent acts, including when the acts occurred,\nwho engaged in them, and what was obtained as a result.\" United States ex rel. Joshi\nv. St. Luke's Hosp., Inc., 441 F.3d 552, 556 (8th Cir. 2006). As the majority opinion\nacknowledges, \"[t]he relators here pleaded more than the relator in Joshi\" and that\n\"[t]he allegations in Count I are close to meeting this standard.\" Ante at 6-7 (emphasis\nadded). And yet, the court still requires more of a relator than is necessary at this\nstage of the proceedings.\n\n I would find that the relators have met Rule 8 and 9 (and Joshi's) requirement\nfor pleading fraud with particularity. 441 F.3d at 556. Indeed, the majority opinion\nand the district court essentially require that the relators here witness the Medicare\nforms being submitted in order to get past the pleading stage in this case. If that were\nthe case, only someone with access to the hospital's internal accounting records could\nsuccessfully bring a qui tam action in this situation. Indeed, as relators point out, the\naccounting records became unaccessible to employees and the public once Bill Bruce\nbecame CEO (and incidentally, the HR manager) of the hospital. Bruce and the\nhospital can thus effectively eliminate any civil liability for false claims by\neliminating access to financial information.\n\n The complaint contained 198 paragraphs, including 55 paragraphs in the\n\"Specific and Detailed Allegations\" section, and spelled out the impropriety of EMTs\nand paramedics being asked to perform work differently, and to perform work–(i.e.,\nbreathing treatments on inpatients)–that EMTs and paramedics were not the most\nqualified and certainly not the most conveniently situated to perform. The complaint\nalleges the relators were told the reason for this abrupt change in procedure and policy\nwas for \"billing\" purposes. Comp. ¶¶ 26-28. The complaint detailed the exponential\nincrease in separately billed \"breathing\" treatments even while the number of hospital\npatients declined. ¶¶ 33-35. The complaint detailed how relators were required to\n\n -18-\n\nmake false entries into the computer system that was used for Medicare\nbilling–averring that the treatments lasted at least thirty minutes regardless of how\nlong the treatment lasted. ¶¶ 30, 98. Requiring the relators to plead an exact day in\nwhich any one of them performed a breathing treatment in less than 30 minutes, see\nante at 9, is more than is necessary. United States ex. rel Thayer v. Planned\nParenthood of the Heartland, 765 F.3d 914, 917-18 (8th Cir. 2014) (holding that a\nrelator does not have to plead specific examples in every case, and instead a \"relator\ncan satisfy Rule 9(b) by 'alleging particular details of a scheme to submit false claims\npaired with reliable indicia that lead to a strong inference that claims were actually\nsubmitted'\") (quoting United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190\n(5th Cir. 2009)).\n\n Further, the relators did provide a concrete example of a terminal patient who\nclearly did not need a breathing treatment but was required to get one. ¶ 37. Relators\npleaded with particularity that \"Patient A, known to Relator Trader, was ordered to\nreceive breathing treatments despite having been in a traumatic, clearly terminal,\naccident.\" Id. Two of the relators questioned the hospital's nurses about giving\nbreathing treatments to other patients who clearly did \"not need the treatments, but\nthey were told to give the treatments anyway.\" ¶ 38. The complaint goes on to\nexplain that breathing treatments given by paramedics, as opposed to nurses, are billed\ndifferently and generate more revenue for the hospital. ¶¶ 39-53. There are links to\ngovernmental and industry documents explaining this process.2 The complaint details\nspecific accounts of staff who were held out to be, and required to perform, acts of\nparamedics and phlebotomists despite their lack of certification. ¶¶ 59-63.\n\n Although relators were not in a position to see the bills generated after such\ncomputer entries, the pleadings gave adequate notice of the natural inference that the\n\n\n 2\n Some of the government website links no longer work or have been moved, but\nmany of the links do indeed provide the documentation described in the complaint.\n\n -19-\n\nbreathing treatments were fraudulently and inflatedly billed the way they were\nentered. Further, evidence of fraud–Bruce's purported misuse of a hospital credit\ncard–is documented with particularity in the complaint including: the day of payment\nto \"Money Gram,\" the amount of payment, and the outcome of an open records\nrequest which resulted in the production of an altered receipt. ¶ 70.\n\n In short, the district court, and a majority of this court, essentially hold that\nshort of the relators committing criminal activity by illegally accessing the hospital's\nbilling records, they cannot successfully plead a false claims act case of Medicare\nbilling fraud. This should not be the state of the law, especially as here \"when the\nopposing party is the only practical source for discovering the specific facts\nsupporting a pleader's conclusion.\" Bos. & Maine Corp. v. Town of Hampton, 987\nF.2d 855, 866 (1st Cir. 1993), overruled on other grounds by Educadores\nPuertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66-67 (1st Cir. 2004). In such\ncases, \"less specificity of pleading may be required pending discovery.\" 987 F.2d at\n866. See also United States ex rel. Nargol v. DePuy Orthopaedics, Inc., 865 F.3d 29,\n37-41 (1st Cir. 2017) (noting that inferences can be used at the pleading stage of a\nfraud case, especially where the relators have little access to documentation, but clear\nknowledge of the scheme), cert. denied, 18 S. Ct. 1551 (2018). Accordingly, I dissent\nfrom Part IIA and IIB of the opinion affirming the dismissal of Counts I and II of the\ncomplaint. I concur in the remainder of the court's opinion.\n ______________________________\n\n\n\n\n -20-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366544/", "author_raw": "BEAM, Circuit Judge, dissenting"}]}	BENTON	BEAM	ERICKSON	1	{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589291/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,293	Pamela GOLINVEAUX, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee	Pamela Golinveaux v. United States	2019-02-11	17-3099	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Colloton, Benton", "parties": "", "opinions": [{"type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3099\n ___________________________\n\n Pamela Golinveaux\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Waterloo\n ____________\n\n Submitted: October 16, 2018\n Filed: February 11, 2019\n ____________\n\nBefore WOLLMAN, COLLOTON, and BENTON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Pamela Jo Golinveaux was sentenced as an armed career criminal. She moved\nto vacate her sentence under 28 U.S.C. § 2255, invoking Johnson v. United States,\n135 S. Ct. 2551 (2015). The district court1 denied her motion. She appeals. Having\njurisdiction under 28 U.S.C. §§ 1291 and 2253, this court affirms.\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa.\n\n In 2008, Pamela Golinveaux pleaded guilty to being a felon in possession of\nammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The plea\nagreement stipulated she is an Armed Career Criminal under§ 924(e)(1) because she\nhad at least three prior qualifying felony convictions. The Presentence Investigation\nReport (PSR), adopted by the district court, identified six qualifying convictions for\nviolent felonies, but did not specify whether ACCA’s residual clause or another\nACCA provision (such as the force clause) supported the enhancement.\n\n The Supreme Court in Johnson invalidated the ACCA’s residual clause, later\nholding Johnson’s new rule retroactive on collateral review. Welch v. United States,\n136 S. Ct. 1257, 1264–65 (2016). In April 2016, less than a year after Johnson,\nGolinveaux filed her first 2255 motion to vacate her sentence, claiming she no longer\nqualified as an armed career criminal due to Johnson. The Government conceded that\ntwo of the six prior offenses no longer qualify as violent felonies under ACCA. The\ndistrict court denied relief.\n\n A federal prisoner may collaterally attack a sentence “upon the ground that the\nsentence was imposed in violation of the Constitution or laws of the United States,\nor that the court was without jurisdiction to impose such sentence, or that the sentence\nwas in excess of the maximum authorized by law, or is otherwise subject to collateral\nattack.” 28 U.S.C. § 2255(a). The movant bears the burden to prove each ground\nentitling relief. E.g., Kress v. United States, 411 F.2d 16, 20 (8th Cir. 1969) (per\ncuriam).\n\n I.\n\n While this appeal was pending, this court decided Walker v. United States, 900\nF.3d 1012 (8th Cir. 2018). A 2255 movant bringing a Johnson claim must “show by\na preponderance of the evidence that the residual clause led the sentencing court to\napply the ACCA enhancement.” Walker, 900 F.3d at 1015 (agreeing with the First,\nTenth, and Eleventh circuits). A “more likely than not” burden reflects the\n\n\n -2-\n\n“importance of the finality of convictions, one of Congress’s motivations in passing\nthe Antiterrorism and Effective Death Penalty Act.” Id. at 1014. This court rejected\nthe Fourth and Ninth circuits’ approaches that require showing only that a sentencing\ncourt “may have” relied on the residual clause. Id. See also United States v.\nPeppers, 899 F.3d 211, 226, 235 n.21 (3d Cir. 2018) (applying the Fourth and Ninth\ncircuits’ “may have” standard at the gatekeeping stage, but adopting “preponderance”\nat the merits stage). Though Walker addressed a successive 2255 motion, two of the\nthree cases it followed involved initial 2255 motions. Compare Dimott v. United\nStates, 881 F.3d 232, 235 (1st Cir. 2018) (initial), and United States v. Beeman, 871\nF.3d 1215, 1220 (11th Cir. 2017) (initial), with United States v. Washington, 890\nF.3d 891, 893 (10th Cir. 2018) (successive). See also United States v. Driscoll, 892\nF.3d 1127, 1135 & n.5 (10th Cir. 2018) (initial motion subject to “more likely than\nnot” standard).\n\n At the merits stage of an initial 2255 motion, Golinveaux must “show by a\npreponderance of the evidence that the residual clause led the sentencing court to\napply the ACCA enhancement.” Walker, 900 F.3d at 1015. If she was sentenced\nbased on the residual clause, then her “sentence was both in excess of the statutory\nmaximum and imposed in violation of the Constitution.” Cravens v. United States,\n894 F.3d 891, 893 (8th Cir. 2018). A Johnson error entitles Golinveaux to relief\nunder 2255 “unless the error was harmless.” Id., applying Brecht v. Abrahamson,\n507 U.S. 619, 637 (1993), to Johnson error in 2255 proceeding.\n\n “Whether the residual clause provided the basis for an ACCA enhancement is\na factual question for the district court.” Walker, 900 F.3d at 1015, citing Beeman,\n871 F.3d at 1224 n.5 (stating that the basis for an enhancement is “a historical fact”).\nThe district court should first review the sentencing record. For example, “comments\nor findings by the sentencing judge,” unobjected-to statements in the PSR, or\n“concessions by the prosecutor” may show which ACCA clause was the basis of an\nenhancement. Beeman, 871 F.3d at 1224 n.4. Reviewing these possible sources, the\ndistrict court here made detailed findings of historical facts. The district\n\n\n -3-\n\ncourt—without the benefit of the Walker opinion—did not find a precise historical\nfact about which clause was the basis of the enhancement. The court’s detailed\nfindings show that the record is inconclusive. At oral argument, Golinveaux’s\ncounsel agreed that the record does not state which ACCA clause was the basis of her\nsentencing enhancement.\n\n II.\n\n When the record is inconclusive, the second step is to determine the relevant\nlegal environment at the time of sentencing. Driscoll, 892 F.3d at 1133. “[T]he\ndistrict court may consider ‘the relevant background legal environment at the time of\n. . . sentencing’ to ascertain whether the movant was sentenced under the residual\nclause.” Walker, 900 F.3d at 1015, quoting Washington, 890 F.3d at 896, and citing\nUnited States v. Snyder, 871 F.3d 1122, 1129 (10th Cir. 2017) (explaining that the\n“relevant background legal environment is a ‘snapshot’ of what the controlling law\nwas at the time of sentencing and does not take into account post-sentencing\ndecisions that may have clarified or corrected pre-sentencing decisions”). See also\nUnited States v. Taylor, 873 F.3d 476, 482 (5th Cir. 2017) (legal environment at time\nof sentencing established that the ACCA enhancement was necessarily based on the\nresidual clause). Walker does not “require remand in cases which turn solely upon\nthe background legal environment.” Dembry v. United States, 2019 WL 436580, at\n2No. 17-2849 (8th Cir. Feb. 5, 2019) (explaining that this court remanded Walker\nto the district court to review the sentencing record). Here, the district court\nsufficiently developed the record, which is inconclusive. This court now considers\nthe second step.\n\n Determining the legal environment requires a “legal conclusion” about the\ncontrolling law at the time of sentencing. Driscoll, 892 F.3d at 1133 n.3, quoting\nSnyder, 871 F.3d at 1128–29. This court reviews these legal conclusions de novo.\nDembry, 2019 WL 436580, at 2. See generally U.S. Bank N.A. v. Village at\nLakeridge, LLC, 138 S. Ct. 960, 967 (2018) (“[T]he standard of review for a mixed\n\n\n -4-\n\nquestion all depends—on whether answering it entails primarily legal or factual\nwork.”). “Walker does not require that the district court examine the background\nlegal environment in the first instance.” Dembry, 2019 WL 436580, at 2. As in the\nFirst, Fifth, Tenth, and Eleventh circuit cases that Walker favorably and repeatedly\ncites, this court may determine the legal environment at the time of sentencing.2 See\nWalker, 900 F.3d at 1015, citing Dimott, 881 F.3d at 242; Taylor, 873 F.3d at 482;\nWashington, 890 F.3d at 899; Beeman, 871 F.3d at 1224. In those circuits, courts\nof appeals reviewing the basis of an ACCA enhancement determine the legal\nenvironment at the time of sentencing. See cases listed in the appendix to this\nopinion.\n\n Based on the legal environment at the time of Golinveaux’s sentencing, she\ncannot carry her 2255 burden. Golinveaux concedes two of her prior convictions\nqualify as ACCA predicates. A third, her Iowa robbery conviction under Iowa Code\n§ 711.1(1), also qualified. Section 711.1(1) has two elements: “(1) intent to commit\na theft, and (2) an assault in carrying out the intent to commit a theft.” State v.\nWilson, 523 N.W.2d 440, 441 (Iowa 1994). The Iowa Supreme Court “follow[s] the\ndefinition of assault in Iowa Code section 708.1 when applying the assault alternative\nof robbery under Iowa Code section 711.1(1).” State v. Heard, 636 N.W.2d 227, 230\n(Iowa 2001). At the time of Golinveaux’s sentencing, a person committed an assault\nunder Iowa Code § 708.1(1) by committing an act intended to cause pain, injury, or\noffensive or insulting physical contact; § 708.1(2) by placing one in fear of such\ncontact; or § 708.1(3) by displaying in a threatening manner any dangerous weapon\ntoward another. Iowa Code § 708.1 (2002). Consulting unobjected-to statements in\nthe PSR, the district court found Golinveaux committed assault under either §\n\n\n\n\n 2", "author": "BENTON, Circuit Judge."}, {"type": "concurrence", "author": "The", "text": "The concurring opinion quotes from the petition for rehearing (and response)\nin the Walker case, apparently drawing inferences from the parties’ views. To the\ncontrary, because summary denial of rehearing is not a decision on the merits, the\nonly inference from a summary denial of rehearing is that the decision stands. See\nUnited States v. Replogle, 678 F.3d 940, 942 (8th Cir. 2012).\n -5-\n\n708.1(1) or § 708.1(3). Cf. United States v. Garcia-Longoria, 819 F.3d 1063, 1067\n(8th Cir. 2016).\n\n The legal environment at the time of Golinveaux’s sentencing establishes that\nassault under either § 708.1(1) or § 708.1(3) qualified as an ACCA predicate under\nthe force clause. See United States v. Smith, 171 F.3d 617, 621 (8th Cir. 1999)\n(offense charged under Iowa Code § 708.1(1) has an element of physical force within\nthe meaning of similar force provision in 18 U.S.C. § 921(a)(33)(A)(ii)); United\nStates v. McDile, 914 F.2d 1059, 1061–62 (8th Cir. 1990) (violation of Missouri\nstatute similar to § 708.1(3) is a violent felony under ACCA force clause because it\n“involv[es] the use, attempted use, or threatened use of physical force against the\nperson of another”). Cf. Snyder, 871 F.3d at 1129–30 (Wyoming burglary qualifies\nas predicate under ACCA enumerated offenses clause because pre-sentencing case\nfound similar Missouri burglary qualifies as predicate under ACCA enumerated\noffenses clause). “[G]iven the relevant background legal environment that existed at\nthe time of [Golinveaux’s] sentencing, there would have been no need for reliance on\nthe residual clause.” Id. at 1130. See Walker, 900 F.3d at 1015, quoting\nWashington, 890 F.3d at 898–99 (“[I]t is not enough for [a movant] to show that . .\n. ‘the residual clause offered the path of least analytical resistance.’”).\n\n\n “In short, neither the relevant background legal environment nor the materials\nbefore the district court reveal that the court more likely than not used the residual\nclause . . . in sentencing.” Washington, 890 F.3d at 900–01. Golinveaux is unable\n“to show by a preponderance of the evidence that the residual clause led the\nsentencing court to apply the ACCA enhancement.” Walker, 900 F.3d at 1015. A\nremand is unnecessary because a contrary conclusion would be erroneous.\n\n III.\n\n A remand is also unnecessary because any error in relying on the residual\nclause would be harmless. See Cravens, 894 F.3d at 893 (Johnson error entitles\n\n -6-\n\nmovant to relief under 2255 “unless the error was harmless.”), applying Brecht, 507\nU.S. at 637. On collateral review, an error is harmless unless it results in “actual\nprejudice,” that is, a “substantial and injurious effect or influence in determining” a\nmovant’s sentence. Brecht, 507 U.S. at 637, citing United States v. Lane, 474 U.S.\n438, 439 (1986).\n\n Even if Golinveaux could show that her original sentence was based on the\nresidual clause, her sentence would be unaffected. She concedes two of her prior\nconvictions qualify as ACCA predicates. As discussed, a third—her Iowa robbery\nconviction under Iowa Code § 711.1(1)—qualified under the law at the time of\nsentencing. Golinveaux argues that it does not qualify under current law because the\nthree subsections of the robbery statute are alternative means of satisfying a single\nelement, and that the first two subsections encompass conduct that falls short of\n“violent force” as defined in Johnson v. United States, 559 U.S. 133, 139–40 (2010).\nSee Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (“[A] state crime cannot\nqualify as an ACCA predicate if its elements are broader than those of a listed generic\noffense.). However, the subsections of § 711.1 are alternative elements that define\ndifferent crimes, rather than “various factual ways of committing some component\nof the offense.” Id. at 2249. See Wilson, 523 N.W.2d at 441 (“essential elements”\nof robbery are “(1) intent to commit a theft, and (2) an assault in carrying out the\nintent to commit a theft”). The assault subsection of § 711.1 is an alternative element\nin its own right. The trial information in Golinveaux’s case is consistent with this\nunderstanding. By alleging that Golinveaux, “having the intent to commit a theft[,]\ncommitted an assault upon employees . . . in violation of § 711.1(1),” the charging\ndocument referenced only one alternative to the exclusion of the others. See Mathis,\n136 S. Ct. at 2257.\n\n Golinveaux’s Iowa robbery conviction qualifies as an ACCA predicate under\ncurrent law. See Wilson, 523 N.W.2d at 441 (the assault alternative of robbery under\n§ 711.1(1) applies definition of assault in § 708.1); United States v. Gaines, 895 F.3d\n\n\n -7-\n\n1028, 1033 (8th Cir. 2018) (§ 708.1(1) assault qualifies as a crime of violence under\nsentencing guidelines); United States v. Maid, 772 F.3d 1118, 1121 (8th Cir. 2014)\n(§ 708.1(3) assault qualifies as a crime of violence under sentencing guidelines);\nBoaz v. United States, 884 F.3d 808, 810 n.3 (8th Cir. 2018) (this court views the\nforce clauses in the ACCA and sentencing guidelines interchangeably). Resentencing\nwould not change Golinveaux’s ACCA enhancement, so any Johnson error was\nharmless. See Fletcher v. United States, 858 F.3d 501, 506 (8th Cir. 2017).\n\n *****\n\n The judgment is affirmed."}, {"author": "COLLOTON, Circuit Judge, concurring", "type": "concurrence", "text": "COLLOTON, Circuit Judge, concurring in the judgment.\n\n As a matter of first principles, I would agree with the court’s ultimate\nconclusion in Part II. A movant seeking to vacate her sentence under Johnson v.\nUnited States, 135 S. Ct. 2551 (2015), should bear the burden to establish that her\nsentence, more likely than not, was based on the residual clause of 18 U.S.C.\n§ 924(e)(2)(B)(ii). When the record of the sentencing hearing is silent or\ninconclusive, however, the post-conviction court must determine the issue according\nto the background legal environment in which the sentencing occurred. The process\nof determining the legal environment at the time of sentencing, and the legal\nsignificance of that environment, presents questions of law, not fact. And here, it was\nsettled under Eighth Circuit law at the time of Golinveaux’s sentencing that her\nconviction for second degree robbery in Iowa qualified as a violent felony under the\n“force clause” of 18 U.S.C. § 924(e)(2)(B)(i). So the sentence, as a matter of law,\nwas not based on the residual clause of § 924(e)(2)(B)(ii).\n\n But Walker v. United States, 900 F.3d 1012 (8th Cir. 2018), seems to preclude\nthis approach, because it declared that “[w]hether the residual clause provided the\nbasis for an ACCA enhancement is a factual question for the district court.” Id. at\n\n -8-\n\n1015 (emphasis added). Consistent with treating the matter as a question of fact,\nWalker said that “the district court may consider the relevant background legal\nenvironment at the time of . . . sentencing,” if the record or an evidentiary hearing is\ninconclusive about the basis for the sentence. Id. (emphasis added) (internal\nquotation omitted). Walker cited a footnote in Beeman v. United States, 871 F.3d\n1215 (11th Cir. 2017), to declare that “the basis for an enhancement is ‘a historical\nfact.’” The Beeman footnote, in turn, discussed how the background legal\nenvironment cast light on what it described as a “question of historical fact.” Id. at\n1224 n.5.\n\n Although the sentencing record in Walker was “sparse,” 900 F.3d at 1015, and\ndid not reveal whether the sentencing court relied on the residual clause, see United\nStates v. Walker, No. 4:02-cr-00161, R. Doc. 161, 162, this court remanded the post-\nconviction case to the district court, saying that “it is the function of the District Court\nrather than the Court of Appeals to determine the facts.” 900 F.3d at 1015 (quoting\nMurray v. United States, 487 U.S. 533, 543 (1988)). There would have been no need\nto remand for factual findings if the meaning and significance of the background legal\nenvironment were questions of law.\n\n The appellant in Walker objected to treating the background legal environment\nas a factual issue, Walker, No. 16-4284, Pet. for Reh’g at 5-9, and the government\nacknowledged that Walker went “a step beyond” decisions of other circuits that\nwould not have called for a remand, id., Resp. to Pet. at 11, but the court denied the\nappellant’s petition for rehearing on that point, and we are thus bound by Walker as\nwritten. Other circuits allow the court of appeals to determine what was the\nbackground legal environment at the time of sentencing, ante, at 5, but Walker did not\ncite those decisions for the proposition that the substance and significance of the legal\nenvironment is an issue of law. So while the court’s ultimate conclusion in Part II\n\n\n\n\n -9-\n\nwould be correct in a case of first impression—the background legal environment\nraises questions of law, not fact—the reasoning is problematic in light of Walker.3\n\n There is a different reason, however, to affirm the denial of Golinveaux’s\nmotion. The majority opinion ultimately agrees. Even assuming that Golinveaux\ncould show that her original sentence was based on the residual clause, there is no\nneed for resentencing if the district court would be required to impose the same\nsentence under current law. Any error in relying on the residual clause would be\nharmless. See Fletcher v. United States, 858 F.3d 501, 506-08 (8th Cir. 2017).\n\n Golinveaux is subject to enhanced punishment as an armed career criminal if\nshe sustained three prior convictions for a violent felony or a controlled substance\noffense. She concedes that two prior convictions qualify as predicates. Golinveaux\ncontends, however, that a third conviction—for second degree robbery under Iowa\nCode § 711.1 (1995)—does not count as a violent felony under current law. She\nasserts that the three subsections of the robbery statute are alternative means of\nsatisfying a single element, see Mathis v. United States, 136 S. Ct. 2243, 2249 (2016),\nand that the first two subsections encompass conduct that falls short of “violent force”\nas defined in Johnson v. United States, 559 U.S. 133, 139-40 (2010).\n\n The subsections of § 711.1, however, are best understood as setting forth\nalternative elements that define different crimes, rather than “various factual ways of\ncommitting some component of the offense.” Mathis, 136 S. Ct. at 2249. State v.\nWilson, 523 N.W.2d 440 (Iowa 1994), explained that the “essential elements” of\n\n 3\n As this decision was on the verge of filing, another panel of the court declared\nin dicta that Walker does not require a remand for a district court to address the\nbackground legal environment that prevailed at the time of sentencing, and that\nassessment of the background legal environment depends on legal conclusions.\nDembry v. United States, No. 17-2849, slip op. at 4 (8th Cir. Feb. 5, 2019). Because\nthis case, like Dembry, can be resolved on an alternative ground, id. at 4-5, it is\nunnecessary to address Dembry’s treatment of Walker.\n -10-\n\nrobbery were “(1) intent to commit a theft, and (2) an assault in carrying out the intent\nto commit a theft,” id. at 441, thereby showing that the assault subsection of § 711.1\nis an alternative element in its own right. The trial information in Golinveaux’s case\nis consistent with this understanding. By alleging that Golinveaux, “having the intent\nto commit a theft[,] committed an assault upon employees . . . in violation of\n§ 711.1(1),” the charging document referenced only one alternative to the exclusion\nof the others. See Mathis, 136 S. Ct. at 2257.\n\n The judicial record shows that Golinveaux was convicted under § 711.1(1), the\nassault alternative under the Iowa robbery statute. Golinveaux does not dispute that\nthe underlying assault statute, Iowa Code § 708.1 (1995), is divisible under current\nlaw, see United States v. Smith, 171 F.3d 617, 620-21 (8th Cir. 1999), and she does\nnot claim any error by the district court in relying on unobjected-to statements in the\npresentence report to determine that she violated either § 708.1(1) or § 708.1(3). Cf.\nUnited States v. Garcia-Longoria, 819 F.3d 1063, 1067 (8th Cir. 2016). Nor does she\ndispute the district court’s conclusion that a robbery committed by either type of\nassault is a violent felony under current law because it has as an element the use,\nattempted use, or threatened use of force against another person. See Smith, 171 F.3d\nat 621; United States v. Boots, 816 F.3d 971, 974 (8th Cir. 2016) (per curiam).\n\n Therefore, Golinveaux’s prior conviction for second degree robbery in Iowa\ncounts as a violent felony under current law. She has three qualifying predicate\nconvictions under current law, and any error in using the residual clause to classify\nher as an armed career criminal at the original sentencing is harmless. I therefore\nconcur in the judgment to affirm the district court.\n\n\n\n\n -11-\n\nAppendix\n\nUnited States v. Lewis, 904 F.3d 867, 871–72 (10th Cir. 2018) (determining relevant\nbackground legal environment at time of sentencing).\n\nUnited States v. Wiese, 896 F.3d 720, 725 (5th Cir. 2018) (examining precedent at\ntime of sentencing).\n\nUnited States v. Driscoll, 892 F.3d 1127, 1135 (10th Cir. 2018) (reviewing de novo\ndistrict court’s analysis of legal environment at time of sentencing).\n\nUnited States v. Washington, 890 F.3d 891, 899 (10th Cir. 2018) (determining\nrelevant background legal environment at time of sentencing).\n\nDimott v. United States, 881 F.3d 232, 241–42 (1st Cir. 2018) (examining precedent\nat time of sentencing).\n\nUnited States v. Murphy, 887 F.3d 1064, 1068–69 (10th Cir. 2018) (determining\nrelevant background legal environment at time of sentencing).\n\nUnited States v. Taylor, 873 F.3d 476, 482 (5th Cir. 2017) (determining legal\nprecedent at time of sentencing).\n\nUnited States v. Beeman, 871 F.3d 1215, 1224 (11th Cir. 2017) (noting lack of\nprecedent at time of sentencing holding petitioner’s convictions qualified under only\nthe residual clause).\n\nUnited States v. Snyder, 871 F.3d 1122, 1130 (10th Cir. 2017) (determining relevant\nbackground legal environment at time of sentencing).\n\nZiglar v. United States, 2018 WL 6505435, at 3 (11th Cir. Dec. 11, 2018)\n(unpublished per curiam) (reviewing “legal arguments” about state of the law at time\nof sentencing).\n\nSmith v. United States, 2018 WL 4355909, at *3 (11th Cir. Sept. 12, 2018)\n(unpublished per curiam) (noting lack of precedent at time of sentencing holding\npetitioner’s convictions qualified under only the residual clause).\n\n\n -12-\n\nBivins v. United States, 747 Fed. Appx. 765, 770 (11th Cir. 2018) (per curiam)\n(noting lack of precedent at time of sentencing holding petitioner’s convictions\nqualified under only the residual clause).\n\nUnited States v. Hernandez, 743 Fed. Appx. 156, 159–61 (10th Cir. 2018)\n(determining relevant background legal environment at time of sentencing).\n\nHarper v. United States, 742 Fed. Appx. 445, 448–49 (11th Cir. 2018) (per curiam)\n(noting lack of precedent at time of sentencing holding petitioner’s convictions\nqualified under only the residual clause).\n\nUnited States v. Galbreath, 742 Fed. Appx. 348, 351–54 (10th Cir. 2018)\n(determining relevant background legal environment at time of sentencing).\n\nUnited States v. Byers, 739 Fed. Appx. 925, 927–29 (10th Cir. 2018) (determining\nrelevant background legal environment at time of sentencing).\n\nUnited States v. Rhodes, 721 Fed. Appx. 780, 782 (10th Cir. 2018) (determining\nrelevant background legal environment at time of sentencing).\n\nUnited States v. Couchman, 720 Fed. Appx. 501, 506–07 (10th Cir. 2018)\n(determining relevant background legal environment at time of sentencing).\n\nUnited States v. Robinson, 720 Fed. Appx. 946, 951–52 (10th Cir. 2018)\n(considering the record in light of background legal environment).\n\nUnited States v. Hopson, 718 Fed. Appx. 699, 703 (10th Cir. 2017) (determining\nrelevant background legal environment at time of sentencing).\n\nUnited States v. Buck, 717 Fed. Appx. 773, 776–77 (10th Cir. 2017) (determining\nrelevant background legal environment at time of sentencing).\n\nUnited States v. Westover, 713 Fed. Appx. 734, 737–39 (10th Cir. 2017)\n(determining relevant background legal environment at time of sentencing).\n ______________________________\n\n\n\n\n -13-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366546/", "author_raw": "COLLOTON, Circuit Judge, concurring"}]}	WOLLMAN	COLLOTON	BENTON	1	{}	3	0	2	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589293/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,294	Gabriel Lazaro GARCIA-HERNANDEZ, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee	Gabriel Garcia-Hernandez v. United States	2019-02-11	17-3027	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Arnold, Benton", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3027\n ___________________________\n\n Gabriel Lazaro Garcia-Hernandez\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of North Dakota - Bismarck\n ____________\n\n Submitted: October 18, 2018\n Filed: February 11, 2019\n ____________\n\nBefore WOLLMAN, ARNOLD, and BENTON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Gabriel Lazaro Garcia-Hernandez was sentenced as an armed career criminal.\nHe moved to vacate his sentence under 28 U.S.C. § 2255, invoking Johnson v. United\nStates, 135 S. Ct. 2551 (2015). The district court denied his motion. He appeals.\nHaving jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court affirms.\n\f In 2014, a jury convicted Garcia-Hernandez, a convicted felon, of possessing\nat least one firearm or ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),\nand 924(e), and a firearm with an obliterated serial number, in violation of 18 U.S.C.\n§§ 922(k) and 924(a)(1)(B). At sentencing in February 2015, the district court found\nthat he had five predicate convictions under the Armed Career Criminal Act (ACCA),\n18 U.S.C. § 924(e). The district court did not specify whether the ACCA’s residual\nclause or another ACCA provision (such as the force clause) supported the\nenhancement. The convictions were affirmed on direct appeal. United States v.\nGarcia-Hernandez, 803 F.3d 994 (8th Cir. 2015).\n\n The Supreme Court in Johnson invalidated the ACCA’s residual clause, later\nholding Johnson’s new rule retroactive on collateral review. Welch v. United States,\n136 S. Ct. 1257, 1264–65 (2016). In May 2016, less than a year after Johnson,\nGarcia-Hernandez filed his first 2255 motion to vacate his sentence, claiming he no\nlonger qualified as an armed career criminal due to Johnson. The district court,\nfollowing United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017), did not require\nGarcia-Hernandez to show he was sentenced under the residual clause. The court\ndenied relief, finding four of his prior convictions qualify as violent felonies under\nthe force clause, with one also qualifying as a serious drug offense. The district court\ngranted a certificate of appealability about whether he qualifies as an armed career\ncriminal in light of Johnson.\n\n While this appeal was pending, this court decided Walker v. United States, 900\nF.3d 1012 (8th Cir. 2018). A 2255 movant bringing a Johnson claim must “show by\na preponderance of the evidence that the residual clause led the sentencing court to\napply the ACCA enhancement.” Walker, 900 F.3d at 1015 (agreeing with the First,\nTenth, and Eleventh circuits). A “more likely than not” burden reflects the\n“importance of the finality of convictions, one of Congress’s motivations in passing\nthe Antiterrorism and Effective Death Penalty Act.” Id. at 1014. This court rejected\nthe Fourth and Ninth circuits’ approaches that require showing only that a sentencing\n\n -2-\n\fcourt “may have” relied on the residual clause. Id., rejecting United States v. Geozos,\n870 F.3d 890, 896 (9th Cir. 2017), and Winston, 850 F.3d at 682. See also United\nStates v. Peppers, 899 F.3d 211, 226, 235 n.21 (3d Cir. 2018) (applying the Fourth\nand Ninth circuits’ “may have” standard at the gatekeeping stage, but adopting\n“preponderance” at the merits stage). Though Walker addressed a successive 2255\nmotion, two of the three cases it followed involved initial 2255 motions. Compare\nDimott v. United States, 881 F.3d 232, 235 (1st Cir. 2018) (initial), and United States\nv. Beeman, 871 F.3d 1215, 1220 (11th Cir. 2017) (initial), with United States v.\nWashington, 890 F.3d 891, 893 (10th Cir. 2018) (successive). See also United States\nv. Driscoll, 892 F.3d 1127, 1135 & n.5 (10th Cir. 2018) (initial motion subject to\n“more likely than not” standard).\n\n Walker’s principles govern here, at the merits stage of an initial 2255 motion.\nGarcia-Hernandez must “show by a preponderance of the evidence that the residual\nclause led the sentencing court to apply the ACCA enhancement.” Walker, 900 F.3d\nat 1015. If he was sentenced based on the residual clause, then “his sentence was\nboth in excess of the statutory maximum and imposed in violation of the\nConstitution.” Cravens v. United States, 894 F.3d 891, 893 (8th Cir. 2018). A\nJohnson error entitles Garcia-Hernandez to relief under 2255 “unless the error was\nharmless.” Id., applying Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), to\nJohnson error in 2255 proceeding.\n\n To determine whether there was a Johnson error, a court first makes factual\nfindings about the sentencing record. Walker, 900 F.3d at 1015. If the record is\ninconclusive, the court then evaluates the legal environment at the time of\nsentencing.1 Id. A district court’s “factual findings about the sentencing record” are\n\n\n 1\n Garcia-Hernandez believes that Cravens says a movant may prove a Johnson\nerror by using any post-sentencing decision. In Cravens, however, the Government\nconceded there was a Johnson error. Cravens, 894 F.3d at 893. Cravens did not\n -3-\n\freviewed for clear error, and “its assessment of the background legal environment\n[depends] upon legal conclusions . . . reviewed de novo.” Dembry v. United States,\n2019 WL 436580, at 2 (8th Cir. Feb. 5, 2019) (emphasis in original). Without the\nbenefit of Walker, the district court here did not find whether the record was\ninconclusive (and a finding on that issue would not be clearly erroneous). A remand\nwould normally be required.\n\n Nonetheless, on collateral review, an error is harmless unless it results in\n“actual prejudice,” that is, a “substantial and injurious effect or influence in\ndetermining” a movant’s sentence. Brecht, 507 U.S. at 637, citing United States v.\nLane, 474 U.S. 438, 439 (1986)). Cf. Davis v. Ayala, 135 S. Ct. 2187, 2193 (2015)\n(on collateral review, finding error was harmless after “[a]ssuming without deciding\nthat a federal constitutional error occurred”). The harmless-error inquiry is not\nlimited to the legal environment at the time of sentencing. See Dembry, 2019 WL\n436580, at 2–3; United States v. Lewis, 904 F.3d 867, 873 (10th Cir. 2018)\n(“[C]urrent, post-sentence cases are only applicable at the harmless error stage of\nreview, once the movant has established the existence of a Johnson error.”).\n\n Garcia-Hernandez has at least three qualifying convictions under current law.\nResentencing would not change his ACCA enhancement, so any Johnson error was\nharmless. See Dembry, 2019 WL 436580, at 2–3; Fletcher v. United States, 858\n\n\n\nsquarely address how a movant proves that error. While this court cited post-\nsentencing cases to support the Government’s concession, Cravens did not analyze\nor discuss the Johnson issue that Walker resolved. See id. Walker’s historical test\ncontrols how a movant proves a Johnson error. See Passmore v. Astrue, 533 F.3d\n658, 660–61 (8th Cir. 2008) (“[W]hen an issue is not squarely addressed in prior case\nlaw, we are not bound by precedent through stare decisis.”), citing Brecht, 507 U.S.\nat 630–31, and Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely\nlurk in the record, neither brought to the attention of the court nor ruled upon, are not\nto be considered as having been so decided as to constitute precedents.”).\n -4-\n\fF.3d 501, 506–08 (8th Cir. 2017). See generally Welch, 136 S. Ct. at 1268 (noting\nthat the Court of Appeals on remand might “determine . . . that the District Court was\ncorrect to deny [petitioner’s] motion to amend his sentence” on the ground that his\n“robbery conviction qualifies as a violent felony under the [force] clause,” which\nmakes him eligible for the same ACCA enhancement “regardless of Johnson”).\n\n Garcia-Hernandez agrees that his prior controlled substance conviction is a\nserious drug offense. His Florida and New Jersey armed robbery convictions are\nviolent felonies under the force clause. He argues that both states’ robbery statutes\nrequire only force necessary to overcome a victim’s resistance, and that this is not\n“violent force” under Johnson v. United States, 559 U.S. 133 (2010). His argument\nis foreclosed by Stokeling v. United States, 139 S. Ct. 544 (2019), addressing a lesser\noffense of the Florida statute at issue here. “[T]he force necessary to overcome a\nvictim’s physical resistance is inherently ‘violent’ in the sense contemplated by\nJohnson, and ‘suggest[s] a degree of power that would not be satisfied by the merest\ntouching.’” Stokeling, 139 S. Ct. at 553 (second alteration in original), quoting\nJohnson, 559 U.S. at 139. Both parties agree that he was convicted of armed robbery\nin 2003 under Fla. Stat. § 812.13(2)(b). This provision enhances a robbery defined\nin § 812.13(1). Because an armed robbery conviction requires at least as much force\nas simple robbery under § 812.13(1), it qualifies as a violent felony. See id. (holding\nrobbery under Fla. Stat. § 812.13(1) qualifies under the force clause). His New Jersey\narmed robbery conviction likewise qualifies. He was convicted in 1991 under\nN.J.S.A. § 2C:15-1. Robbery under § 2C:15-1(a)(1), the only provision he\nchallenges, “requires more force than that necessary merely to snatch [an]\nobject”—there must be “some degree of force to wrest the object from the victim.”\nState v. Sein, 590 A.2d 665, 668–70 (N.J. 1991) (holding New Jersey’s robbery\nstatute adopts the “majority rule” that “there is insufficient force to constitute robbery\nwhen the thief snatches property from the owner’s grasp so suddenly that the owner\ncannot offer any resistance to the taking”). See United States v. West, 314 F. Supp.\n3d 223, 236 (D.D.C. 2018) (collecting post-Sein cases). This degree of force satisfies\n\n -5-\n\fthe force clause, so his conviction qualifies. See Stokeling, 139 S. Ct. at 554–55;\nUnited States v. Sykes, 2019 WL 361013, at 4 (8th Cir. Jan. 30, 2019) (holding\nsimilar Illinois robbery statute “fits the common-law mold” requiring the use of\n“violent force” under Stokeling); United States v. Swopes, 886 F.3d 668, 671 (8th Cir.\n2018) (en banc) (holding Missouri second-degree robbery, which requires “the use\nof force capable of preventing or overcoming resistance,” is a violent felony under\nthe force clause).\n\n Garcia-Hernandez has at least three qualifying convictions under current law,\nso any Johnson error did not result in actual prejudice. He is not entitled to 2255\nrelief.\n\n *******\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366547/", "author_raw": "BENTON, Circuit Judge."}]}	WOLLMAN	ARNOLD	BENTON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589294/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,720	UNITED STATES of America, Plaintiff - Appellee v. Nathan Daniel NEWELL, Defendant - Appellant	United States v. Nathan Newell	2019-02-12	18-2066	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-2066\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Nathan Daniel Newell\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Cedar Rapids\n ____________\n\n Submitted: November 15, 2018\n Filed: February 12, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nERICKSON, Circuit Judge.\n\n Nathan Newell pled guilty to possession and attempted possession of child\npornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). Newell’s\nadvisory guidelines range was 87 to 108 months of imprisonment. The district court1\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa.\n\fsentenced Newell to 87 months of imprisonment to be followed by a 5-year term of\nsupervised release. Newell’s period of supervision began on July 25, 2017. In this\nappeal Newell challenges the district court’s findings relating to violations of two\nspecial conditions of supervised release as well as the court’s imposition of certain\nmodified special conditions. We affirm.\n\n I. Background\n\n In March of 2011, Newell pled guilty to attempted possession and possession\nof child pornography after an investigator downloaded an image from Newell’s\naccount over the peer-to-peer file sharing client LimeWire. The district court found\nthat Newell had a total offense level of 29, was in criminal history Category I, and\nthat he had an advisory guideline range of 87-108 months. Among the upward\nadjustment from the base offense level were increases for distribution of the child\npornography, use of a computer, and possession of material involving sadistic and\nmasochistic conduct. Newell was sentenced to 87 months of imprisonment to be\nfollowed by a 5-year term of supervised release. Newell began his period of\nsupervised release on July 25, 2017.\n\n In April of 2018, Newell’s probation officer filed a petition to revoke Newell’s\nsupervised release. At the revocation hearing, the court found that Newell had\nviolated the following conditions of supervised release: Violation 1 alleged that\nNewell failed to comply with his mental health and sex offender treatment by missing\na Sex Offender Treatment Program appointment on December 20, 2017; Violation\n2 alleged that Newell had contact with a child under 18 on three separate occasions;\nand Violation 3 alleged that Newell failed to truthfully answer questions from his\nprobation officer regarding his contacts with his uncle’s grandson.\n\n At the hearing, Newell’s probation officer testified that Newell described\ncontact with a child selling Girl Scout cookies inside a Walmart as “a little mistake.”\n\n -2-\n\fThe probation officer also testified that Newell was not forthright with the officer\nabout whether he had been around his uncle’s minor grandson at all or left alone with\nhim on two separate occasions. Newell later admitted these contacts before and after\nundergoing a polygraph examination as part of his treatment plan.\n\n The district court imposed a six-month term of GPS monitoring and home\nconfinement. The district court also imposed several modified special conditions.\nThe two that are at issue on appeal are Special Conditions 2 and 5. Special Condition\n2 requires Newell “to submit to periodic polygraph testing at the discretion of the\nUnited States Probation Office as a means to ensure that the defendant is in\ncompliance with the requirements of the defendant’s supervision or treatment\nprogram.” Special Condition 5 forbids Newell from “accessing an Internet connected\ncomputer or other electronic storage device with [I]nternet capabilities without the\nprior written approval of the United States Probation Office and based on a justified\nreason.”\n\n Newell argues that the district court erred in finding two supervised release\nviolations and abused its discretion in imposing Special Conditions 2 and 5.\n\n II. Discussion\n\n We review a district court’s modification of supervised release conditions for\nan abuse of discretion. United States v. Heidebur, 417 F.3d 1002, 1004 (8th Cir.\n2005) (citing United States v. Carlson, 406 F.3d 529, 531 (8th Cir. 2005)). “District\ncourts are normally afforded wide discretion in imposing terms of supervised\nrelease.” Id. (quoting United States v. Kent, 209 F.3d 1073, 1075 (8th Cir. 2000)).\nA district court’s subsidiary “findings of fact as to whether or not a violation\noccurred” are reviewed for clear error. United States v. Petersen, 848 F.3d 1153,\n1156 (8th Cir. 2017) (citing United States v. Boyd, 792 F.3d 916, 919 (8th Cir.\n2015)).\n\n -3-\n\f A. Violations of Supervised Release Conditions\n\n Newell argues that the district court erred in finding he committed two of the\nalleged violations.2 First, while Newell admits that he missed a meeting that was part\nof his sex-offender treatment plan, he argues that as a matter of law missing one\nmeeting is not a failure to participate in that treatment. The district court acted within\nits wide discretion when it found that Newell’s failure to attend a treatment session\nviolated the special condition requiring him to comply with his treatment plan. A\nplain interpretation of the supervised release condition forecloses Newell’s argument\nthat as a matter of law he was entitled to miss a portion of that program.\n\n Second, Newell argues that he did not breach the prohibition on contact with\nminors when he met the child selling cookies in a Walmart because his discussion\nwas “incidental contact” in a commercial setting. We have previously upheld\nconditions that generally restricted contact with minors but permitted “incidental\ncontact while making purchases at a retail establishment.” United States v.\nMuhlenbruch, 682 F.3d 1096, 1104 (8th Cir. 2012). We agree with the district court\nthat permissible “incidental contact while making purchases” refers to circumstances\nsuch as “where you go into the Hy-Vee store because you need to buy your goods to\nsustain your livelihood and it happens to be a checkout clerk who is under the age of\n18.” The district court did not abuse its discretion in finding that Newell’s discussion\nwith a minor non-employee inside of a store was intentional, rather than incidental,\ncontact.\n\n\n\n\n 2\n Newell does not appeal the district court’s findings that he committed four\nother violations of his conditions of supervised release, including violations relating\nto time spent with his uncle’s grandson and whether he was truthful with his\nprobation officer.\n\n -4-\n\f B. Modifications of Special Conditions of Supervised Release\n\n “[A] district court may order a condition of supervised release beyond those\nlisted in § 3583, provided that such a condition is reasonably related to the sentencing\nfactors set forth in 18 U.S.C. § 3553(a), involves no greater deprivation of liberty than\nis reasonably necessary for the purposes set forth in § 3553(a), and is consistent with\nany pertinent policy statements issued by the Sentencing Commission.” United States\nv. Mark, 425 F.3d 505, 507 (8th Cir. 2005) (discussing 18 U.S.C. § 3583(d)). To\nimpose a special condition a district court “must make an individualized inquiry into\nthe facts and circumstances underlying a case and make sufficient findings on the\nrecord so as ‘to ensure that the special condition satisfies the statutory requirements.’”\n United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011) (quoting United States\nv. Curry, 627 F.3d 312, 315 (8th Cir. 2010)). On appeal, however, “reversal is not\nrequired [due to] a lack of individualized findings if the basis for the imposed\ncondition can be discerned from the record.” United States v. Thompson, 653 F.3d\n688, 694 (8th Cir. 2011).\n\n Newell seeks to vacate Special Conditions 2 and 5 of the modified special\nconditions of supervised release. Special Condition 2 requires periodic polygraph\ntesting at the direction of Newell’s supervising probation officer and Special\nCondition 5 prohibits Newell from accessing the Internet without the prior written\napproval of his supervising probation officer. We find the bases for both conditions\nare easily discernable from the record.\n\n Newell has demonstrated a pattern of untruthfulness with his probation officer.\nNewell admitted to some of the violations at issue in this case just before he was\nscheduled to undergo a polygraph examination related to his sex offender treatment\nprogram, suggesting that polygraph testing causes Newell to be more candid than\nusual. Newell’s pattern of dishonesty regarding his contacts with minor children\ncombined with Newell’s previous admissions when scheduled to undergo polygraph\n\n -5-\n\ftesting are facts within the record that sufficiently satisfy the statutory requirements\nfor imposition of Special Condition 2. Under these circumstances, the district court\ndid not abuse its discretion. See Wiedower, 634 F.3d at 494 (explaining that a\ndemonstrated lack of candor supports the imposition of a polygraph requirement).\n\n With regard to restricting access to Internet-connected devices, we consider\nrelevant “whether the defendant did more than merely possess child pornography and\nwhether the restriction is a total ban.” United States v. Notman, 831 F.3d 1084, 1089\n(8th Cir. 2016) (citing United States v. Ristine, 335 F.3d 692, 696 (8th Cir. 2003)).\nWhen analyzing the first factor a court may consider the sadistic or masochistic\nnature of the depictions in question. Id. Both factors support the district court’s\nmodified condition. The district court found that Newell used a computer, that the\nimages were shared on LimeWire, and that the images were of a sadistic and\nmasochistic nature. The modified condition permits Newell to access the Internet, but\nonly with the prior approval of his probation officer. We conclude Special Condition\n5 does not involve a greater deprivation of liberty than is reasonably necessary to\nadvance deterrence and protect the public. Cf. United States v. Lacy, 877 F.3d 790,\n794 (8th Cir. 2017) (citing United States v. Durham, 618 F.3d 921, 944 (8th Cir.\n2010)).\n\n III. Conclusion\n\n We affirm the district court’s conclusion that Newell violated his conditions\nof supervised release and the court’s modification of Newell’s conditions of\nsupervised release.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366973/", "author_raw": "ERICKSON, Circuit Judge."}]}	BENTON	BEAM	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589720/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,721	UNITED STATES of America, Plaintiff - Appellee v. Lamarvin DARDEN, Defendant - Appellant	United States v. Lamarvin T. Darden	2019-02-12	17-3373	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Melloy, Stras", "parties": "", "opinions": [{"author": "MELLOY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3373\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Lamarvin Darden\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: September 28, 2018\n Filed: February 12, 2019\n ____________\n\nBefore SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.\n ____________\n\nMELLOY, Circuit Judge.\n\n In this 28 U.S.C. § 2255 case with a complicated procedural history, Appellant\nLamarvin Darden asks us to vacate his 200-month prison sentence and remand to the\n\fdistrict court1 to conduct a full resentencing hearing wherein his rehabilitation efforts\ncan be fully considered. We affirm.\n\n I. Background\n\n A. Darden’s Underlying Convictions and Sentences\n\n In May 2011, Darden was convicted of three crimes following a jury trial: (1)\npossession with intent to distribute cocaine base, a violation of 21 U.S.C. § 841(a)(1)\n(the “drug count”); (2) being a felon in possession of a firearm in violation of\n18 U.S.C. §§ 922(g) and 924(e) (the “firearm count”); and (3) being an unlawful user\nof a controlled substance in possession of a firearm, which is a violation of\n18 U.S.C. § 922(g)(3) (the “drug-firearm count”).\n\n Darden’s presentence investigation report (“PSR”) concluded that he was an\narmed career criminal under the Armed Career Criminal Act of 1984 (“ACCA”),\n18 U.S.C. § 924(e), and a career offender under section 4B1.1 of the U.S. Sentencing\nGuidelines (the “Guidelines”). To support those conclusions, the PSR identified\n\n\n\n\n 1\n The Honorable E. Richard Webber, United States District Judge for the\nEastern District of Missouri.\n\n -2-\n\fnumerous predicate offenses.2 The PSR then recommended a sentence of 262 to 327\nmonths’ imprisonment. Darden objected to the PSR.\n\n At the sentencing hearing, the district court sentenced Darden to 200 months\nfor the drug count, 200 months for the firearm count, and 120 months for the\ndrug-firearm count, all to run concurrently. The district court concluded he was an\narmed career criminal and a career offender. Following the hearing, Darden timely\nappealed his convictions and sentences, and we affirmed. See United States v.\nDarden, 688 F.3d 382, 391 (8th Cir. 2012).\n\n B. Darden’s First 2255 Motion\n\n Two years later, Darden filed a motion to vacate the sentences under 28 U.S.C.\n§ 2255 (the “2014 motion”). Among other things, he claimed he had received\nineffective assistance of counsel because his attorney had not argued that the firearm\nand drug-firearm counts should be consolidated for sentencing purposes. The district\ncourt agreed that counsel was ineffective but found no prejudice because Darden had\n\n 2\n These included two 2003 convictions for: (1) “Possession with Intent to\nDistribute a Controlled Substance—Marijuana” in violation of Mo. Rev. Stat.\n§ 195.211; and (2) “Assault Law Enforcement Officer Second Degree” in violation\nof Mo. Rev. Stat. § 565.082.1(1). They also included five 2004 convictions for: (1)\ntwo counts of “Assault on a Law Enforcement Officer Second Degree” in violation\nof Mo. Rev. Stat. § 565.082.1(1); (2) one count of “Burglary Second Degree” in\nviolation of Mo. Rev. Stat. § 569.170; and (3) two counts of “Assault on a Law\nEnforcement Officer (Deadly Weapon/Dangerous Instrument)” in violation of Mo.\nRev. Stat. § 565.082.1(1). At the time Darden committed each assault offense under\nsection 565.082.1, subsection (1) stated that a person committed the crime of assault\nof a law enforcement officer if he “[k]nowingly cause[d] or attempt[ed] to cause\nphysical injury to a law enforcement officer . . . by means of a deadly weapon or\ndangerous instrument.” Id. For each assault offense, prosecutors charged Darden\nunder the attempt language in subsection (1). Darden claims he entered “Alford”\npleas to each assault charge. See North Carolina v. Alford, 400 U.S. 25, 37 (1970).\n\n -3-\n\fbeen sentenced to serve a concurrent 200 months on the drug count. Merging the\nfirearm and the drug-firearm counts, the district court explained, would not have\naffected the length of his incarceration.\n\n Darden appealed. Before we had the chance to decide the case, however, the\ngovernment moved for a remand “to enter an amended judgment reflecting that\nDarden was convicted on [the drug count] . . . and either [the firearm or the drug-\nfirearm count].” Darden did not object to the motion, but requested that counsel be\nappointed “at the district court level for re-sentencing.” Seeing that both parties\ndesired a remand, we granted the motion, remanding the case “for further proceedings\nand entry of an amended judgment.”\n\n While the appellate proceedings were ongoing and before we remanded,\nDarden amended his 2014 motion before the district court pro se. He claimed that his\nsecond-degree assault convictions, see supra note 2, were not violent felonies in light\nof the U.S. Supreme Court’s opinion in Johnson v. United States, 135 S. Ct. 2551\n(2015). The district court ordered the federal public defender’s office to review\nDarden’s amended motion and determine whether it would pursue Darden’s\narguments.3 A month later, we remanded, as mentioned previously, whereupon the\ndistrict court ordered Darden to file a brief explaining why he was entitled to\nresentencing and not simply an amended judgment. Darden filed the brief in March\n2016, and the government did not respond because it did not have a position on the\nissue. Shortly thereafter, the district court ordered a resentencing hearing and\nappointed Darden counsel.\n\n The Probation Office then issued a PSR for resentencing. The report again\nconcluded that Darden was an armed career criminal and a career offender based on\nthe same predicate offenses that were cited in the 2011 PSR. The government filed\n\n\n 3\n It appears that nothing ever came of this in light of the events that followed.\n\n -4-\n\fa sentencing memorandum in support of the PSR. Darden thereafter objected to the\nPSR and filed a brief, arguing that his prior burglary and attempted assault\nconvictions could not be considered violent felonies under Johnson.\n\n At the resentencing hearing, the government dismissed the drug-firearm count\nand argued that Darden’s attempted assault convictions were violent felonies.4 The\ndistrict court allowed Darden to speak about his rehabilitation efforts. The district\ncourt also permitted Darden to present witnesses on his behalf. The district court then\nconsidered the arguments and sentenced Darden to 200 months on the drug count and\na concurrent 200 months on the firearm count. The district court reasoned that\nDarden was still an armed career criminal and career offender because he had three\npredicate offenses: the 2003 conviction for marijuana possession and “at least two”\nof the 2004 convictions for attempted assaults on a law enforcement officer. The\nattempted assault convictions, the district court explained, were violent felonies based\non this Court’s decision in United States v. Alexander, 809 F.3d 1029 (8th Cir. 2016).\nContrary to Darden’s wishes, his attorney did not appeal.\n\n C. Darden’s Second 2255 Motion\n\n Darden’s attorney’s failure to appeal prompted Darden to file a § 2255 motion\nto vacate his 2016 sentences (the “2017 motion”). He alleged ineffective assistance\nof counsel. The district court ordered a hearing on his motion, understanding that\n“the sole purpose of th[e] hearing” was to reimpose the 2016 sentences so that Darden\ncould appeal them. At the hearing, the district court allowed Darden’s attorney to\npresent a brief argument and then allowed Darden to say a few words for himself.\nThe district court then resentenced Darden to two concurrent terms of 200 months so\nthat he could appeal. As it did so, the district court stated that it believed it did not\n\n\n 4\n Throughout the proceedings and on appeal, the government has not argued\nthat Darden’s burglary conviction is a violent felony.\n\n -5-\n\fhave the power to sentence Darden to a reduced sentence. The district court\nexplained:\n\n If I had the power, I would probably—I would have reduced your\n sentence to about 120 months. I didn’t believe that I had the power\n [when you were here before], and I don’t believe I have the power now\n to resentence you. If I did, I would sentence you to 120 months.\n\n Darden timely appealed, bringing the case before us. He now argues that: (1)\nunder the “sentencing package” doctrine, the district court had the authority to\nconduct a plenary resentencing at the October 2017 hearing and should have done so;\n(2) his prior assault convictions were not “violent felonies” under the ACCA; (3) his\n2004 assault convictions were all part of a continuous course of conduct that should\nbe treated as one conviction; and (4) he was prejudiced by a change of attorneys after\nwe remanded the case for further proceedings regarding the 2014 motion.\n\n II. Discussion\n\n A. Procedural Correctness\n\n Darden first asserts that the district court committed procedural error when it\nreinstated his 200-month sentence at the October 2017 hearing without conducting\na “plenary resentencing.” The district court, Darden insists, “had the authority to\nconduct a plenary resentencing on all counts” under the “‘sentencing package’\ndoctrine.” See Gardiner v. United States, 114 F.3d 734, 736 (8th Cir. 1997)\n(discussing the doctrine). The district court, therefore, “plainly erred,” Darden\nconcludes, “in failing to recognize the scope of its authority to impose a new sentence\nthat reflected the concerns of 18 U.S.C. § 3553(a).”\n\n Both parties agree that plain-error review applies to this issue as Darden did not\nobject to the procedure the district court followed at the second resentencing. See\n\n -6-\n\fUnited States v. Ruiz-Salazar, 785 F.3d 1270, 1272 (8th Cir. 2015) (per curiam)\n(noting that “a claim of procedural error” raised “for the first time on appeal” is\nreviewed under the “plain-error standard”). Under plain-error review, Darden\n\n must show (1) an error; (2) that is plain; and (3) that affects substantial\n rights. An error affects a substantial right if it is prejudicial, meaning\n that there is a reasonable probability the defendant would have received\n a lighter sentence but for the error. Even if that showing is made, this\n court will correct such an error only if it seriously affects the fairness,\n integrity, or public reputation of judicial proceedings.\n\nUnited States v. Trung Dang, 907 F.3d 561, 564 (8th Cir. 2018) (citation omitted).\n\n Here, the district court did not procedurally err when it resentenced Darden to\n200 months in 2017. We have repeatedly said that “[w]hen resentencing follows a\nsuccessful § 2255 motion based on counsel’s failure to appeal, ‘the prescribed\nprocedure is for the district court to vacate the sentence and then reimpose it.” United\nStates v. King, 691 F.3d 939, 940–41 (8th Cir. 2012) (citation omitted) (affirming a\ndistrict court’s decision to reimpose an upward-departure sentence after the\ndefendant’s attorney failed to appeal); see also United States v. Prado, 204 F.3d 843,\n845, 847 (8th Cir. 2000) (affirming a district court’s decision to reimpose a\ndefendant’s two consecutive, 60-month sentences following the sentencing court’s\nand the defendant’s attorney’s failure to advise the defendant of his appeal right);\nUnited States v. Beers, 76 F.3d 204, 205 (8th Cir. 1996) (per curiam) (affirming a\ndistrict court’s decision to vacate a defendant’s sentence and reimpose the sentence\nso that he could have a chance to engage in direct appeal following his counsel’s\nfailure to do so). The district court followed this clearly established procedure.\n\n Moreover, even if we were to now agree with Darden that the sentencing\npackage doctrine or any other consideration should compel district courts to follow\na different procedure, any error the district court committed here would not be “plain”\n\n -7-\n\fin light of the long line of cases just cited. See United States v. Borders, 829 F.3d\n558, 564 (8th Cir. 2016) (“Plain error means an error that is clear under current\nlaw.”); United States v. Briggs, 820 F.3d 917, 921 (8th Cir. 2016) (explaining that for\nan error to be plain, it must be “‘obvious’ or ‘clear under current law’” (quoting\nUnited States v. Olano, 507 U.S. 725, 734 (1993))). Consequently, we hold that the\ndistrict court did not commit plain error when it reimposed Darden’s original sentence\nat the 2017 hearing.\n\n B. Darden’s Attempted Assault Convictions\n\n We turn now to the arguments Darden preserved at the 2016 resentencing.\nThere, he argued that his 2003 and 2004 attempted assault convictions do not\nconstitute violent felonies under the ACCA because of the Supreme Court’s decisions\nin Johnson v. United States, 135 S. Ct. 2551 (2015), and Mathis v. United States, 136\nS. Ct. 2243 (2016).5 The district court disagreed, holding that this Court’s decision\nin United States v. Alexander, 809 F.3d 1029 (8th Cir. 2016), was on point and\ncompelled the opposite conclusion. “Mr. Darden’s indictments for assaults on a law\nenforcement officer second degree are all similar to the description of the indictment\nat issue in Alexander,” the district court explained, and “[t]he Supreme Court’s\ndecision in Mathis does not change this result.” Darden now renews his argument\nthat his attempted assault convictions are not violent felonies. We “review[] de novo\nthe determination that a conviction is a violent felony under the ACCA.” United\nStates v. Myers, 896 F.3d 866, 868 (8th Cir. 2018), petition for cert. filed, No. 18-\n6859 (U.S. Nov. 26, 2018).\n\n\n\n 5\n Darden also argued that his 2004 second-degree burglary conviction under\nMo. Rev. Stat. § 569.170, see supra note 2, is not a violent felony. The district court\nfound it unnecessary to rule on that issue, and so do we. For the reasons stated below,\nDarden still has a sufficient number of predicate offenses to be considered an armed\ncareer criminal even without the burglary conviction.\n\n -8-\n\f “A violent felony under the ACCA is ‘any crime punishable by imprisonment\nfor a term exceeding one year . . . that—(i) has as an element the use, attempted use,\nor threatened use of physical force against the person of another.” Id. (quoting\n18 U.S.C. § 924(e)(2)(B)). We determine whether a prior conviction is a violent\nfelony by “comparing ‘the elements of the crime of conviction . . . with the elements\nof the generic crime.” Id. (quoting Descamps v. United States, 570 U.S. 254, 257\n(2013)). “If the elements criminalize a broader range of conduct than the generic\ncrime [i.e., make the crime of conviction overinclusive], the conviction is not a\nviolent felony.” Id. at 869. If the statute of conviction lists alternative elements,\nhowever, it “defines more than one crime,” in which case we apply a “modified\ncategorical approach . . . to determine which of the alternatives was the offense of\nconviction.” Id. (quoting United States v. Winston, 845 F.3d 876, 877 (8th Cir.\n2017)). Under the modified categorical approach, we may look at a limited set of\ndocuments, the so-called Shepard documents, to make such a determination. See\nShepard v. United States, 544 U.S. 13, 26 (2005) (listing “the charging document, .\n. . a plea agreement or transcript of [the plea] colloquy[,] . . . [or] some comparable\njudicial record” as acceptable documents a court can use under the modified\ncategorical approach).\n\n In Alexander, we held that “an attempted second-degree assault under\nMo. Rev. Stat. § 565.060(1)(2) constitutes an ‘attempted use . . . of physical force’\nunder § 924(e)(2)(B)(i),” and is therefore a violent felony. Alexander, 809 F.3d at\n1033. Section 565.060.1(2), a statute that listed alternative elements, defined second-\ndegree assault as “attempt[ing] to cause or knowingly caus[ing] physical injury to\nanother person by means of a deadly weapon or dangerous instrument.”\nMo. Rev. Stat. § 565.060.1(2) (1998).6 We applied the modified categorical approach\n\n 6\n Section 565.060 has been repealed and replaced by Mo. Rev. Stat. § 565.050\nas has Mo. Rev. Stat. § 565.082, the statute under which Darden was convicted. See\n2014 Mo. Laws 959, 1181, 1185, 1378–80. In 2003 and 2004, however, when\nDarden was charged with attempted assault under section 565.082.1(1), the language\n\n -9-\n\fand concluded that “[t]he language of the information tracks the language of” the\nstatute. Alexander, 809 F.3d at 1032. We then assessed whether Missouri law\nconstrued the term “attempt” in an overinclusive manner and concluded that it did\nnot. See id. at 1032–33. Accordingly, we affirmed “the district court’s application\nof the ACCA enhancement to Alexander’s sentence.” Id. at 1033.\n\n A little more than a year later, we reaffirmed Alexander in United States v.\nMinnis, 872 F.3d 889, 892 (8th Cir. 2017). Minnis involved a criminal defendant\nwho claimed that “his prior conviction for attempted first-degree assault” under\nMo. Rev. Stat. § 565.0507 was “not a crime of violence” under section 4B1.2(a) of the\nGuidelines. Id. at 891. We described how to determine whether a prior conviction\nconstitutes a crime of violence—a process largely the same as determining whether\nthe conviction is a violent felony under the ACCA. See id.; see also United States v.\nDoyal, 894 F.3d 974, 976 n.2 (8th Cir. 2018) (“[G]iven their nearly identical\ndefinitions, we construe ‘violent felony’ under [the ACCA] and ‘crime of violence’\nunder the Guidelines as interchangeable, including the corresponding force clauses\nand residual clauses.” (second alteration in original) (citation omitted)); United States\nv. Vinton, 631 F.3d 476, 484 (8th Cir. 2011) (“To determine whether a previous\nconviction is a crime of violence under § 4B1.2(a), we often have looked to the case\n\n\n\nof that subsection was virtually identical to that of the 1998 version of section\n565.060.1(2). Compare Mo. Rev. Stat. § 565.082 (2004) (“1. A person commits the\ncrime of assault of a law enforcement officer . . . in the second degree if such person:\n(1) Knowingly causes or attempts to cause physical injury to a law enforcement\nofficer . . . by means of a deadly weapon or dangerous instrument.”), with\nMo. Rev. Stat. § 565.060 (1998) (“1. A person commits the crime of assault in the\nsecond degree if he: . . . (2) Attempts to cause or knowingly causes physical injury\nto another person by means of a deadly weapon or dangerous instrument.”).\n 7\n Section 565.050 reads, in relevant part: “1. A person commits the offense of\nassault in the first degree if he or she attempts to kill or knowingly causes or attempts\nto cause serious physical injury to another person.”\n\n -10-\n\flaw interpreting 18 U.S.C. § 924(e)(2)(B), a provision of the [ACCA] that defines the\nterm ‘violent felony’ using similar language.”). We then assessed whether the\nMissouri Supreme Court’s post-Alexander case of State v. Lammers, 479 S.W.3d 624\n(Mo. 2016) (en banc), had done anything to modify Missouri’s attempt analysis and\nthereby make Missouri’s attempt offense broader than the generic crime. See id. at\n891–92. We concluded it had not. Id. Finding that Alexander controlled, we held\nthat “[t]he elements of attempted first-degree assault under Missouri law [were] not\nbroader than the generic crime,” so attempted first-degree assault was a crime of\nviolence. Id. at 892.\n\n Here, Darden was charged with second-degree assault on a law enforcement\nofficer under the “attempt” language of Mo. Rev. Stat. § 565.082.1(1). That language\ntracks the language of the statutes at issue in Alexander and Minnis. Darden points\nto no Missouri cases post Lammers to suggest that Missouri’s law regarding attempts\nhas changed to become overinclusive. Therefore, we hold that his convictions for\nsecond-degree assault on a law enforcement officer were violent felonies under the\nACCA.8\n\n C. Darden’s Other Arguments\n\n We reject Darden’s final two arguments. He argues that his 2004 second-\ndegree assault convictions were all part of a continuous course of conduct and should\ncount as one conviction. He procedurally defaulted this argument, however, because\nhe did not raise it on direct appeal in 2012. See Bousley v. United States, 523 U.S.\n614, 621 (1998); McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001).\n\n 8\n Darden argues in his supplemental brief that the fact he entered Alford pleas\non the assault charges precludes a determination that his convictions are violent\nfelonies. We reject this argument as “Alford pleas are indistinguishable from other\nguilty pleas for purposes of § 924(e)(2)(B).” United States v. Salean, 583 F.3d 1059,\n1061 n.3 (8th Cir. 2009).\n\n -11-\n\fMoreover, he has not demonstrated “cause for the default and prejudice or actual\ninnocence,” which he must do if he wishes to raise the argument for the first time\nhere. McNeal, 249 F.3d at 749; see also Bousley, 523 U.S. at 622. Even if the\nargument were not defaulted and we agreed that his 2004 second-degree assault\nconvictions were part of a continuous course of conduct, Darden would still have\nthree predicate offenses: (1) his 2003 conviction for possession of marijuana with\nintent to distribute; (2) his 2003 conviction for second-degree assault; and (3) his\nnow-single 2004 conviction for second-degree assault. See supra note 2.9 Thus, he\nwould remain an armed career criminal under the ACCA.\n\n Darden also argues that he was prejudiced by a change of attorneys after we\nremanded the case for further proceedings regarding the 2014 motion. We decline\nto address this argument because he raises it for the first time in his supplemental\nbrief, and “[i]t is well settled that we will not consider an argument raised for the first\ntime on appeal.” Eagle Tech. v. Expander Ams., Inc., 783 F.3d 1131, 1138 (8th Cir.\n2015).\n\n III. Conclusion\n\n We affirm the district court’s judgment.\n ______________________________\n\n\n\n\n 9\n Darden raises for the first time in his reply brief the argument that his 2003\nmarijuana-possession conviction and his 2003 second-degree assault convictions\n“occurred at the same time” and, therefore, ought to be treated as one conviction. We\ngenerally do not consider arguments raised for the first time in a reply brief and find\nno reason to do so here. See Jones v. Aetna Life Ins. Co., 856 F.3d 541, 549 (8th Cir.\n2017).\n\n -12-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366974/", "author_raw": "MELLOY, Circuit Judge."}]}	SMITH	MELLOY	STRAS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589721/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,722	UNITED STATES of America, Plaintiff - Appellee v. David Allen (Allan) BELL, Also Known as David Allen Bell, Also Known as Donte Borae, Defendant - Appellant	United States v. David Bell	2019-02-12	16-3588	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 16-3588\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\nDavid Allen (Allan) Bell, also known as David Allen Bell, also known as Donte Borae\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: November 15, 2018\n Filed: February 12, 2019\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n David Bell appeals the district court’s imposition of special conditions of\nsupervised release prohibiting the consumption of alcohol and setting a curfew. We\nreverse and vacate those conditions.\n\f Under a binding plea agreement, Bell pleaded guilty to conspiracy to distribute\nmarijuana and conspiracy to commit money laundering. The plea agreement included\na waiver of appellate and post-conviction rights. As relevant here, Bell “expressly\nwaive[d] the right to appeal any sentence, directly or collaterally, on any ground\nexcept . . . (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) an\nillegal sentence, or; (4) that the Court imposed a sentence other than the one set out\nin this binding plea agreement.” The plea agreement defined an illegal sentence as\n“a sentence imposed in excess of the statutory maximum or different from that set out\nin this binding plea agreement” but “not a misapplication of the Sentencing\nGuidelines or an abuse of discretion.” The plea agreement provided for a sentence\nof 15 months’ imprisonment and 3 years’ supervised release.\n\n A presentence investigation report was also prepared. It stated that Bell\n“consumes alcohol occasionally, primarily on weekends.” It also noted that Bell first\nused marijuana in high school and eventually began using it “regularly.” Neither Bell\nnor the Government objected to the facts contained in the presentence investigation\nreport.\n\n After the district court confirmed that the plea agreement and appellate waiver\nwere knowing and voluntary, Bell was sentenced to 15 months’ imprisonment and 3\nyears’ supervised release. The district court also imposed special conditions of\nsupervised release that were not described in the plea agreement. Special Condition\nNo. 4 requires that Bell “not consume or possess alcoholic beverages or beer,\nincluding 3.2 percent beer, at any time, and [that he] shall not be present in any\nestablishment where alcoholic beverages are the primary items for sale.” Special\nCondition No. 5 requires Bell to be at his “place of residence between the hours of\n10:00 p.m. and 6:00 a.m., 7 days per week,” unless his work schedule requires\notherwise.\n\n\n\n\n -2-\n\f According to the court, the alcohol ban was necessary because “I’ve had too\nmany defendants that go out and get to drinking, then they get intoxicated and then\nthey go out and violate their supervised release.” The court pointed to similar\njustifications in imposing the curfew:\n\n And the same reason I put that curfew on there. . . . [T]hey violate their\n probation, they’re out usually past midnight. They’re out on the prowl, and\n they get into trouble. They get drinking, then they’re out prowling the streets.\n Now, there’s no indication you do that. But I’m going to leave it on there\n because I’m not even going to give you the chance to be tempted by it.\n\nBell timely appealed the imposition of these conditions.\n\n We must first consider whether the appellate waiver prevents Bell from\nchallenging the two special conditions of supervised release.1 We review the validity\nof an appellate waiver de novo. United States v. Seizys, 864 F.3d 930, 931 (8th Cir.\n2017). Ordinarily, plea agreements “will be strictly construed and any ambiguities\nin these agreements will be read against the Government and in favor of a defendant’s\nappellate rights.” United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc).\n“[T]he burden of proof is on the Government to demonstrate that a plea agreement\nclearly and unambiguously waives a defendant’s right to appeal.” Id. But Bell’s plea\nagreement proposed a different standard. It provided that “in interpreting this\nagreement, any drafting errors or ambiguities are not to be automatically construed\nagainst either party, whether or not that party was involved in drafting or modifying\nthis agreement.” We need not decide whether the parties can contract around our case\nlaw construing ambiguities against the Government. Giving the words their “normal\n\n\n 1\n In a separate pro se brief, Bell also invokes ineffective assistance of counsel\nand challenges subject-matter jurisdiction and venue. We decline to address the\nineffective assistance of counsel claim on direct appeal. See United States v. Cooke,\n853 F.3d 464, 475 (8th Cir. 2017). And as Bell’s counsel acknowledged, the other\nclaims are without merit.\n\n -3-\n\fand ordinary meanings,” as the plea agreement itself demands, we conclude that the\nwaiver does not prevent Bell from challenging the special conditions of supervised\nrelease.\n\n The plea agreement expressly stated that Bell may appeal a sentence “other\nthan the one set out in this binding plea agreement.” While the plea agreement\nprovided for a sentence of 15 months’ imprisonment and 3 years’ supervised release,\nit did not describe any special conditions of supervised release. According to Andis,\nspecial conditions of supervised release are part of a sentence. 333 F.3d at 892 n.7;\nsee also 18 U.S.C. § 3583(a) (stating that courts may include a term of supervised\nrelease “as a part of the sentence”). We therefore find that Bell is appealing a\nsentence other than the one provided for in the plea agreement. In response, the\nGovernment points to the additional language stating that Bell cannot appeal “a\nmisapplication of the Sentencing Guidelines or an abuse of discretion.” Because we\nordinarily review a sentencing court’s imposition of conditions of supervised release\nfor an abuse of discretion, the Government contends that the waiver blocks Bell’s\nappeal here. But this language defines an illegal sentence, the third category of\nexceptions to the appellate waiver. The definition does not purport to limit the fourth\ncategory: “that the Court imposed a sentence other than the one set out in this\nbinding plea agreement.” The special conditions are part of Bell’s sentence but were\nnot set out in the plea agreement. They therefore meet the “other than” exception and\ndo not fall within the scope of the waiver.\n\n Because Bell objected at sentencing to Special Condition No. 4 imposing an\nalcohol ban, we review its imposition for abuse of discretion. See United States v.\nForde, 664 F.3d 1219, 1222 (8th Cir. 2012). While the district court’s discretion is\nbroad, it is not absolute. Id. The conditions must 1) be “reasonably related to the\nsentencing factors set forth in 18 U.S.C. § 3553(a); 2) involve[] no greater\ndeprivation of liberty than is reasonably necessary for the purposes set forth in\n§ 3553(a); and 3) [be] consistent with any pertinent policy statements issued by the\n\n -4-\n\fSentencing Commission.” United States v. Wiedower, 634 F.3d 490, 493 (8th Cir.\n2011). Moreover, the sentencing court “must make an individualized inquiry into the\nfacts and circumstances underlying a case and make sufficient findings on the record\nso as to ensure that the special condition satisfies the statutory requirements.” Id.\n(internal quotation marks omitted). The court “may not impose a special condition\non all those found guilty of a particular offense.” Id. But a special condition need not\nbe vacated if its basis can be discerned from the record, even in the absence of\nindividualized findings. United States v. Deatherage, 682 F.3d 755, 758 (8th Cir.\n2012).\n\n “We have repeatedly affirmed total bans on alcohol consumption when either\nthe defendant’s history and characteristics or the crime of conviction supported the\nrestriction.” United States v. Robertson, 709 F.3d 741, 748 (8th Cir. 2013). We have\nalso held that a history of drug abuse can support a condition prohibiting the\nconsumption of alcohol because it is “within the district court’s discretion to\nrecognize the threat of cross addiction and respond by imposing the ban on alcohol\nuse.” See Forde, 664 F.3d at 1224; see also U.S.S.G. § 5D1.3(d)(4) (recommending\nsuch conditions for defendants who abuse drugs or alcohol). But we have vacated\ncomplete bans on alcohol “where the defendant’s history or crime of conviction” did\nnot support them. United States v. Walters, 643 F.3d 1077, 1080 (8th Cir. 2011). In\nparticular, we have refused to treat the distribution of drugs as a crime of conviction\nthat in itself justifies banning alcohol. See Forde, 664 F.3d at 1222-23. Likewise,\nwe have held that the threat of cross addiction justifies a total prohibition on alcohol\nonly where the defendant is truly drug dependent, and we have explained that even\nrepeated marijuana use and light alcohol consumption are not necessarily sufficient\nto establish dependency, which exists when “a person is psychologically or\nphysiologically reliant on a substance.” United States v. Woodall, 782 F.3d 383, 387\n(8th Cir. 2015) (per curiam).\n\n\n\n\n -5-\n\f Applying these principles here, we conclude that the sentencing court abused\nits discretion in imposing the condition prohibiting Bell from any consumption of\nalcohol and from frequenting establishments where it is the primary item for sale.\nRather than conducting an individualized inquiry into the circumstances of Bell’s\nalcohol use and drug dependence, the district court cited its general experience with\nprior offenders. In fact, the court admitted that “there’s no indication you do that\n[drinking and prowling the streets].” Moreover, the court made no finding that Bell\nis drug dependent and susceptible to cross addiction to alcohol. See Walters, 643\nF.3d at 1080. While the presentence investigation report did indicate that he used\nmarijuana “regularly,” it did not specify how frequently he used it. We have held that\nconsumption of one or two beers each month and use of marijuana once every other\nmonth did not amount to drug dependence, and the record does not show that Bell’s\nregular use of marijuana and occasional consumption of alcohol resulted in\ndependence. See Woodall, 782 F.3d at 387. And while officers found hundreds of\nmarijuana plants in the basement of the residence where Bell was arrested, this\nevidence could relate primarily to his effort to make money by distributing marijuana\nand was not used to make any findings concerning his own addiction. See Forde, 664\nF.3d at 1222-23 (explaining that a conviction for distributing drugs does not\nnecessarily justify an alcohol ban). Given the sentencing court’s lack of findings\nparticular to Bell and its express reliance on the general characteristics of other\noffenders, we vacate the special condition prohibiting him from consuming any\nalcohol or visiting establishments where it is served.\n\n We conclude that the sentencing court also abused its discretion in imposing\nthe curfew. Rather than making individualized findings, the court referenced its\ngeneral experience with offenders and admitted that there was “no indication” this\nexperience pertained to Bell. See Wiedower, 634 F.3d at 493 (requiring\nindividualized findings). We also do not see a reasonable probability that the court\nwould have imposed the condition after an individualized assessment. See U.S.S.G.\n§ 5D1.3(e)(5) (suggesting that a “curfew may be imposed if the court concludes that\n\n -6-\n\frestricting the defendant to his place of residence during evening and nighttime hours\nis necessary to protect the public from crimes that the defendant might commit during\nthose hours, or to assist in the rehabilitation of the defendant”). The presentence\ninvestigation report did indicate that Bell met a coconspirator at a nightclub, but it\notherwise is unclear how the curfew is reasonably related to the protection of the\npublic or Bell’s criminal history and rehabilitative and correctional needs given that\nthe conspiracy involved distributing marijuana through the mail and laundering the\nproceeds. Bell’s case bears little resemblance to those in which we have upheld\ncurfews. See, e.g., United States v. Asalati, 615 F.3d 1001, 1008 (8th Cir. 2010)\n(upholding a curfew condition for a defendant who “demonstrate[d] a continued and\nescalating inability to operate within the confines of the law” and committed several\ncrimes while on supervised release); United States v. Mack, 455 F. App’x 714, 716\n(8th Cir. 2012) (per curiam) (upholding a curfew for a defendant who repeatedly had\nbeen arrested for driving under the influence after midnight).\n\n For the foregoing reasons, we vacate Special Condition No. 4, which prohibits\nBell from consuming alcohol or frequenting establishments where alcoholic\nbeverages are the primary items for sale, and Special Condition No. 5, which imposes\na curfew upon Bell.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366975/", "author_raw": "GRUENDER, Circuit Judge."}]}	GRUENDER	KELLY	GRASZ	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589722/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,163	UNITED STATES of America, Plaintiff - Appellee v. Elsa SOLIS, Defendant - Appellant	United States v. Elsa Solis	2019-02-13	18-1215	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Kelly, Erickson", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1215\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Elsa Solis\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Little Rock\n ____________\n\n Submitted: September 28, 2018\n Filed: February 13, 2019\n [Published]\n ____________\n\nBefore WOLLMAN, KELLY, and ERICKSON, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Elsa Solis was convicted of conspiring to possess with intent to distribute\nmethamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846\n(Count 1); possession with intent to distribute methamphetamine in violation of\n§§ 841(a)(1) and 841(b)(1)(A) (Count 2); and misprision of a felony in violation of 18\nU.S.C. § 4 (Count 3). She appeals, arguing that the evidence was insufficient to\n\fsupport her convictions, that the Fifth Amendment bars her misprision conviction, and\nthat the district court erred in refusing to give her proposed “mere presence” jury\ninstruction. We affirm in part and reverse in part.\n\n I. Background\n\n The Drug Enforcement Administration (DEA) began investigating a\nmethamphetamine trafficking ring in Batesville, Arkansas, in December 2014. Solis\nheld title to one of the four houses under DEA surveillance. She lived in the house\nwith five individuals: her three children; her boyfriend, Ivan Pedraza (Pedraza); and\nher boyfriend’s brother, Fredy Pedraza (Fredy), who served as the methamphetamine\n“cook.” Solis was also the registered owner of four vehicles used by the Pedrazas in\nconducting drug deals and investigated by the DEA. During a controlled purchase on\nMay 13, 2015, Solis sat in the passenger’s seat of a car with Pedraza while he\nexchanged methamphetamine for money with a confidential informant through the\npassenger’s window.\n\n Further evidence of Solis’s involvement in the conspiracy included a package\naddressed to Solis’s house containing an air conditioning unit stuffed with\nmethamphetamine, surveillance of Pedraza and Fredy leaving Solis’s house to sell\ndrugs and later returning to the house, and intercepted calls between Pedraza and Solis\ndiscussing Solis’s plan to purchase acetone, which is a cleaning product used to\nremove adulterants from methamphetamine.\n\n Using one of Solis’s vehicles, Pedraza drove Solis and two of her children to\nDallas, Texas, on July 17, 2015, where he planned on purchasing ten kilograms of\nmethamphetamine. Before they left, Pedraza called Fredy and asked for some car\nseats. Fredy responded that the car seats were filled with “stew,” a slang term for\ndrugs. Pedraza at first asked him to “take the stew out of them,” but later said that he\nwould instead purchase car seats before driving to Dallas.\n\n -2-\n\f After Pedraza, Solis, and the children arrived in Dallas, DEA agents intercepted\na phone conversation in which Solis asked Pedraza if he had “fix[ed] everything\nthere.” An agent testified that Solis was asking whether Pedraza worked out all the\ndetails of the drug deal. Solis and Pedraza drove back to Batesville on July 19, 2015.\nDEA agents informed local law enforcement that Solis’s vehicle likely contained cash\nand methamphetamine, and a state trooper stopped the car for a traffic violation. Solis\nconsented to a search of the vehicle. After the trooper found a cordless screwdriver\nwith a single Phillips bit and a suitcase containing Ziploc bags, he examined the car\nseats and found them abnormally heavy. Using the cordless drill and the Phillips bit,\nhe disassembled the car seats and found $19,000 in rubber-banded cash and 2.5\nkilograms of methamphetamine. He found another $1,796 in rubber-banded cash in\nSolis’s purse.\n\n\n DEA and local law enforcement agents executed search warrants on the four\nhouses associated with the drug trafficking ring. Agents found $18,000 in cash\nstashed in various places in Solis’s residence. Searches of the sparsely furnished stash\nhouses revealed distributable amounts of methamphetamine, along with Ziploc bags,\ndigital scales, acetone, and a car seat.\n\n Solis was indicted on the counts set forth above. Before trial, Solis requested\na jury instruction stating that mere presence in a jointly occupied vehicle would be\ninsufficient to establish possession of illegal substances. The district court declined\nto include the instruction, finding it duplicative and slightly inaccurate. The jury\nconvicted Solis on all three counts. The district court sentenced Solis to 235 months’\nimprisonment on the drug distribution offenses and 36 months’ imprisonment on the\nmisprision offense, to run concurrently.\n\n\n\n\n -3-\n\f II. Sufficiency of the Evidence\n\n Solis argues that the evidence is insufficient to support her convictions. We\nreview de novo the sufficiency of the evidence to sustain a conviction, “viewing the\nevidence in the light most favorable to the jury’s verdict and reversing the verdict only\nif no reasonable jury could have found the defendant guilty beyond a reasonable\ndoubt.” United States v. Ramos, 852 F.3d 747, 753 (8th Cir. 2017) (quoting United\nStates v. Ways, 832 F.3d 887, 894 (8th Cir. 2016)).\n\n Solis argues that her conspiracy conviction must be vacated because the\ngovernment failed to prove that she had intentionally joined the conspiracy. See id.\n(elements of conspiracy). We disagree. A reasonable jury could have found that Solis\nintentionally joined the conspiracy based on the evidence that: she allowed her house\nto be used to receive drugs and store money; she allowed her vehicles to be used for\ndrug deals; she purchased acetone knowing it would be used to purify\nmethamphetamine; she accompanied Pedraza to Dallas knowing he would purchase\nmethamphetamine there; she allowed her children’s car seats to be used to store\nmethamphetamine; and she carried drug proceeds in her purse.\n\n Solis next argues that the government failed to prove that she possessed with\nintent to distribute methamphetamine. She claims that the evidence did not support\na finding that she knowingly possessed the methamphetamine stashed inside the\nchildren’s car seats. See id. (elements of possession with intent to distribute). The\ngovernment may prove knowing possession by showing constructive possession—that\nis, that Solis had both knowledge of and control over the contraband. See United\nStates v. Johnson, 18 F.3d 641, 647 (8th Cir. 1994). Mere presence or physical\nproximity alone cannot support such a finding. There must be “some nexus between\na defendant and the contraband.” Id.\n\n\n\n\n -4-\n\f Solis argues that the evidence did not establish a nexus between her and the\nmethamphetamine. She cites our recent decision in United States v. Ramos that\nevidence of joint occupation of a room in which a firearm was found was, without\nmore, insufficient to support a finding that the defendant constructively possessed that\nfirearm. 852 F.3d at 755. Here, unlike in Ramos, the evidence supported a finding\nthat Solis: knew that Pedraza had purchased methamphetamine in Dallas; allowed\nPedraza to store the drugs in her vehicle; knew that the drugs were stashed in her\nchildren’s car seats; and had access to those car seats. Accordingly, a reasonable jury\ncould find that Solis had knowledge of and control over the methamphetamine. See\nJohnson, 18 F.3d at 648 (finding a sufficient nexus when the defendant’s clothes were\nin the same bag as the contraband, permitting an inference that he controlled the bag\nand knew its contents).\n\n Solis next contends that the government failed to prove that she took an\naffirmative act of concealment necessary to sustain her misprision conviction. We do\nnot reach this issue, however, because we reverse Solis’s misprision conviction on\nFifth Amendment grounds, as explained below.\n\n III. Fifth Amendment\n\n Solis argues that the district court erred by entering a misprision judgment\nagainst her in contravention of her Fifth Amendment right against self-incrimination.\nBecause Solis raises this argument for the first time on appeal, we review for plain\nerror.1 See Puckett v. United States, 556 U.S. 129, 135 (2009). “In reviewing for\nplain error, we have the discretion to reverse the district court if the defendant shows\n‘(1) an error, (2) that was plain, (3) affects substantial rights, and (4) the error\nseriously affects the fairness, integrity or public reputation of judicial proceedings.’”\nUnited States v. Fast Horse, 747 F.3d 1040, 1042 (8th Cir. 2014) (cleaned up) (quoting\n\n 1\n Solis made a different Fifth Amendment argument at trial that she does not\nraise on appeal.\n -5-\n\fUnited States v. Rush-Richardson, 574 F.3d 906, 910 (8th Cir. 2009)). “Usually, for\nan error to be plain, it must be in contravention of either Supreme Court or controlling\ncircuit precedent.” United States v. Lachowski, 405 F.3d 696, 698 (8th Cir. 2005).\n\n The misprision statute provides that “[w]hoever, having knowledge of the actual\ncommission of a felony cognizable by a court of the United States, conceals and does\nnot as soon as possible make known the same to some judge or other person in civil\nor military authority under the United States,” is guilty of misprision. 18 U.S.C. § 4.\nThis statutory offense thus requires proof that the defendant knew of the completion\nof a felony, failed to notify the proper authorities of that fact, and took “‘affirmative\nsteps’ to conceal” the felony. United States v. Bolden, 368 F.3d 1032, 1037 (8th Cir.\n2004). Perhaps predictably, and as this case demonstrates, where the person who\n“knows” about the felony is also implicated in that same felony, “there are tensions\nbetween the Fifth Amendment privilege against self-incrimination and the statutory\nobligation to provide disclosure.” United States v. Caraballo-Rodriguez, 480 F.3d 62,\n72 n.7 (1st Cir. 2007).\n\n The superseding indictment in this case charged that beginning in or around the\nsame time period, Solis both (1) was a co-conspirator in the methamphetamine\nconspiracy (Count 1); and (2) failed to alert the authorities about that very conspiracy,\nin violation of the misprision statute (Count 3). At trial, the government urged the jury\nto convict Solis of misprision and conspiracy based on the same conduct. It explained,\n“[Solis] participated in the conspiracy. She possessed meth. She intended to\ndistribute it, and then she concealed it.” The jury’s misprision conviction therefore\ncriminally punished Solis for failing to tell authorities about a crime in which she was\nalready involved.\n\n The Fifth Amendment’s privilege against self-incrimination, however,\nguarantees that witnesses will not be “compelled to give self-incriminating testimony”;\nit forbids “officially coerced self-accusation[s].” United States v. Washington, 431\n\n -6-\n\fU.S. 181, 187–88 (1977). And since Hoffman v. United States, it has been settled that\nthis privilege “not only extends to answers that would in themselves support a\nconviction . . . but likewise embraces those which would furnish a link in the chain of\nevidence needed to prosecute the claimant for a federal crime,” provided “the witness\nhas reasonable cause to apprehend danger from a direct answer.” 341 U.S. 479, 486\n(1951) (holding that a defendant could not be compelled to testify about the\nwhereabouts of a fugitive witness where defendant’s answers would have “forge[d]\nlinks in a chain of facts imperiling [defendant] with conviction of a federal crime”).\nUnder Hoffman, therefore, it is plain that the government cannot use the misprision\nstatute to require someone to report a crime—an essential element of\nmisprision—where doing so reasonably could lead to that individual’s own\nprosecution. Accordingly, it was error to charge, and convict, Solis on the misprision\ncount, and that error violated a substantial right: Solis’s Fifth Amendment right against\nself-incrimination.\n\n Our conclusion comports with decisions by the Ninth and Seventh Circuits\napplying Hoffman to curtail misprision prosecutions under similar circumstances. In\nUnited States v. King, the Ninth Circuit held that the Fifth Amendment privilege\nagainst self-incrimination precluded a conviction for misprision of a bank robbery\nbecause the defendant had reasonable cause to believe that reporting the robbery could\nlead to his prosecution as an aider and abetter or as an accessory. 402 F.2d 694, 697\n(9th Cir. 1968). Similarly, in United States v. Kuh, the Seventh Circuit affirmed\ndismissal of a misprision charge where the government’s evidence showed that, “at the\ntime the duty to disclose [the felony] arose, the defendants . . . were simultaneously\ninvolved in criminal conduct” related to the underlying felony, such that they could\nreasonably believe that “disclosing information as to their knowledge of the [felony]\nwould place them in the position of furnishing the Government with evidence that\ncould lead to their prosecution or conviction.” 541 F.2d 672, 677 (7th Cir. 1976); see\nalso United States v. Jennings, 603 F.2d 650, 652 & n.4 (7th Cir. 1979) (following\nKing and Kuh).\n\n -7-\n\f To allow Solis’s conviction for misprision to stand would cast doubt on both the\nfairness and the integrity of the judicial proceedings against her. See United States v.\nWebster, 84 F.3d 1056, 1067 (8th Cir. 1996) (reasoning that where a properly\ninstructed jury may not have convicted defendant, affirming conviction would\nseriously affect the fairness, integrity, or public reputation of judicial proceedings);\ncf. United States v. Huether, 673 F.3d 789, 799 (8th Cir. 2012) (reversing conviction\non plain error review where it violated the Double Jeopardy Clause). We therefore\nexercise our discretion and reverse with instructions to vacate Solis’s conviction on\nthis count.\n\n IV. Jury Instruction\n\n Solis’s final contention is that the district court erred by failing to give her\nproposed “mere presence” instruction. We review the district court’s denial of a\ndefendant’s proposed instruction for abuse of discretion. United States v. Vore, 743\nF.3d 1175, 1181 (8th Cir. 2014). Although “[a] defendant is entitled to a theory of\ndefense instruction if it is timely requested, is supported by the evidence, and is a\ncorrect statement of the law,” a defendant is not entitled to particular wording “if the\ninstruction actually given by the trial court adequately and correctly covers the\nsubstance of the requested instruction.” Id. at 1181–82 (quoting United States v.\nClaxton, 276 F.3d 420, 423 (8th Cir. 2002)). We consider jury instructions “as a\nwhole and in the context of the trial.” Id. at 1182 (quoting Claxton, 276 F.3d at 424).\n\n Solis requested the following instruction:\n\n Mere presence at the scene of a crime, mere association with another\n who controls contraband, or the mere knowledge that a crime is being\n committed is not sufficient to establish that Ms. Solis committed the\n crime of Possession with Intent to Distribute Methamphetamine. To\n sustain the charge, there must be some nexus which indicates Elsa Solis\n had the authority, either jointly with another or solely to herself, to\n\n -8-\n\f exercise dominion or control of the contraband, and the intent to\n exercise that dominion or control.\n\nThe district court found the requested instruction duplicative, slightly inaccurate, and\nunnecessary. It instead instructed the jury that “[e]vidence that a person was present\nat the scene of an event, or acted in the same way as others or associated with others,\ndoes not, alone, prove that the person joined a conspiracy.” The court also instructed\nthe jury on the definition of possession. Taken together, the instructions adequately\nand accurately conveyed the substance of Solis’s requested instruction. See Vore, 743\nF.3d at 1182 (upholding the district court’s rejection of the proposed instruction\nbecause the instructions given, identical to those here, were adequate and yielded the\n“unmistakable implication . . . that something more than mere presence was required\nin order to convict [the defendant]”).\n\n We affirm Solis’s convictions on Counts 1 and 2. We reverse with instructions\nto vacate her conviction on Count 3, and remand for further proceedings as deemed\nnecessary by the district court.\n\n ______________________________\n\n\n\n\n -9-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367416/", "author_raw": "PER CURIAM"}]}	WOLLMAN	KELLY	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590163/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,637	UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee RAIFSNIDER, Also Known as Larry E. Killion, Defendant-Appellant.	United States v. Edward Raifsnider	2019-02-14	18-1212	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Wollman, Grasz", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1212\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Edward Lee Raifsnider, also known as Larry E. Killion\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Southwestern Division\n ____________\n\n Submitted: December 14, 2018\n Filed: February 14, 2019\n [Published]\n ____________\n\nBefore SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Edward L. Raifsnider appeals the sentence imposed following his successful\nmotion under 28 U.S.C. § 2255 on the ground that the sentence is substantively\nunreasonable. The Government asserts Raifsnider’s appeal is barred by the appeal\nwaiver in his plea agreement. We enforce the waiver and accordingly dismiss this\nappeal.\n\f “When reviewing a purported waiver, we must confirm that the appeal falls\nwithin the scope of the waiver and that both the waiver and plea agreement were\nentered into knowingly and voluntarily.” United States v. Andis, 333 F.3d 886,\n889–90 (8th Cir. 2003) (en banc). We must also determine that enforcing the waiver\nwould not “result in a miscarriage of justice.” Id. at 890.\n\n Raifsnider does not challenge the waiver on any of those grounds, instead\narguing that the appeal waiver is unenforceable due to the Government’s alleged\nbreach of the plea agreement at sentencing.1 This court has held that an appeal waiver\nis unenforceable when the Government breaches the plea agreement. See United\nStates v. Sayles, 754 F.3d 564, 568 (8th Cir. 2014). When a breach is raised for the\nfirst time on appeal, this court reviews the issue for plain error. Id. If this court finds\nan error, then it must also assess whether there is a reasonable probability the\ndefendant would have received a more favorable sentence but for the breach. Id.\n\n Raifsnider’s argument is unusual because he asserts a breach of the spirit of the\nagreement rather than the letter of the agreement. He concedes that the Government\ntechnically recommended a Guidelines sentence to the sentencing court. Then, he\nargues the Government effectively recommended an alternative sentence by strongly\nsuggesting the district court should not follow its formal recommendation.\n\n Raifsnider cites no authority showing a violation of the spirit of a plea\nagreement is enough to find a breach. The case Raifsnider relies on involved the\nGovernment openly advocating upward departure from the Guidelines on the tenuous\ntheory that the Government only agreed to recommend a sentence within its\n\n\n 1\n We assume without deciding that Raifsnider did not waive this issue. The\nGovernment cites no case where we have required a defendant to raise or assert an\nargument about an appeal waiver before the Government sought to enforce the appeal\nwaiver, and we need not decide whether to impose such a requirement now because\nit would not affect the outcome in this case.\n\n -2-\n\fcalculation of the Guidelines rather than the district court’s calculation. United States\nv. Van Horn, 976 F.2d 1180, 1183 (8th Cir. 1992). Van Horn is distinguishable\nbecause there the Government openly recommended a departure. See id. Here,\nRaifsnider concedes that no explicit request occurred. We do not suggest the\nGovernment can never breach a plea agreement by implicitly recommending a\ndifferent sentence than the one it is bound to recommend by the agreement, but we do\nnot believe this line has been crossed here.\n\n More importantly, there is also no indication that Raifsnider would have\nreceived a more favorable sentence but for the purported breach. The district court\nbased its sentencing decision primarily on reviewing the presentence investigation\nreport and the numerous fraud crimes in Raifsnider’s past. There is no indication that\nany remarks from the Government were the but-for cause of the district court’s\nsentencing decision.\n\n Accordingly, under plain error review, any actionable Government breach here\nwould not relieve Raifsnider of the appeal waiver because he has not shown it is\nreasonably probable that he would have received a more favorable sentence but for\nthe purported breach. We enforce the waiver and grant the motion to dismiss this\nappeal.\n ______________________________\n\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367890/", "author_raw": "PER CURIAM"}]}	SMITH	WOLLMAN	GRASZ	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590637/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,638	David KASIAH, Plaintiff - Appellant v. CROWD SYSTEMS, INC., Defendant Gilbert Carter ; Kansas City Board of Police Commissioners, Defendants - Appellees	David Kasiah v. Gilbert Carter	2019-02-14	17-3588	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Melloy, Stras", "parties": "", "opinions": [{"author": "MELLOY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3588\n ___________________________\n\n David Kasiah\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Crowd Systems, Inc.\n\n lllllllllllllllllllllDefendant\n\n Gilbert Carter; Kansas City Board of Police Commissioners\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: September 27, 2018\n Filed: February 14, 2019\n ____________\n\nBefore SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.\n ____________\n\nMELLOY, Circuit Judge.\n\f A concertgoer who was injured when an off-duty police officer lifted him over\na five-foot barrier and dropped him on his neck asks us to reverse the district court’s1\norder granting summary judgment to the officer and the board of police\ncommissioners on his 42 U.S.C. § 1983 claims. We affirm.\n\n I. Background\n\n A. Appellant’s Injury\n\n Except where noted, the following facts are undisputed or presented in a light\nmost favorable to the appellant. On September 27, 2013, Appellant David Kasiah\nattended the Buzz Beach Ball concert in Kansas City, Missouri. While there, he\nengaged in several acts of “crowd surfing.” According to Kasiah, crowd surfing\ninvolved being hoisted onto fellow concertgoers’ shoulders at the back of the venue\nand then being passed hand to hand overhead by them and others toward the stage.\nSome time after one these crowd-surfing episodes, Kasiah was dancing behind a\nwoman when he “bumped into her.” The woman became upset and began yelling at\nhim. Kasiah tried to ignore her, and, after a few seconds, they resumed their separate\ndancing. Kasiah then crowd surfed again, whereupon he returned and started dancing\nbehind the woman. He bumped into her a second time, and she responded by yelling\nmuch more fiercely. After about thirty seconds of yelling, the woman turned to the\nman she was with and appeared to voice her frustration. She then ran off to talk to\nsecurity personnel, and the man and Kasiah exchanged “looks.”2\n\n 1\n The Honorable Beth Phillips, United States District Judge for the Western\nDistrict of Missouri.\n 2\n In a deposition, Kasiah explained that the look the man gave him was a look\nthat seemed to say, “Sorry about [the woman] freaking out about this. . . . [S]he’s\nmaking me do this.” Elsewhere, Kasiah called the look the man gave a “stare.”\nKasiah explained that the exchanged looks were all that ever happened between him\nand the man—the man made no threatening gestures to Kasiah, nor did he clench his\nfist or square up to Kasiah in a boxer stance.\n\n -2-\n\f While all of this was going on, Appellee Gilbert Carter, an off-duty police\nofficer for the Kansas City Police Department (“KCPD”), was working as a security\nguard for Crowd Systems, Inc. (“CSI”), the company providing security for the event.\nHe was standing behind an approximately five-foot tall metal barrier separating the\ncrowd from the stage. A CSI employee approached Carter and explained that it\nlooked like a fight might break out between Kasiah and another man. Carter then\nstepped onto a step approximately two feet off the ground, which put the top of the\nbarrier at his waist. From there, Carter watched Kasiah and the other man for a\nmoment and called his colleague, Detective Kevin White, over to help him. White\nwas also an off-duty KCPD police officer working for CSI.\n\n As White drew near, Carter spoke to one of the patrons who reported that\nKasiah had been causing trouble all day. Carter then saw what he believed to be a\n“disturbance in the crowd” caused by the two men and motioned for Kasiah to come\nto him. Kasiah walked toward Carter, who lunged to grab Kasiah as Kasiah got close\nenough. Kasiah avoided the grab and stepped or leaned back, away from Carter. The\ncrowd suddenly surged forward, and Kasiah was pushed toward Carter. Carter then\ngrabbed Kasiah by the shirt and the arm, made a slight adjustment to his grip, and\nproceeded, with White’s assistance, to pull Kasiah up and over the barrier.3 Kasiah\n\n\n 3\n Lifting someone over the barrier to remove him from a concert was,\napparently, not an uncommon practice among CSI security guards. White recalls\ndoing it “all the time” when he worked at other events. Officers did it, he explained,\nto remove people whom CSI identified as needing to leave for any given reason. He\nsaid that it “may not be the easiest way” to remove a person from an event or “the\nsmartest thing to do” alone, but he did recall doing it with help previously and\n“[n]ever [having] any issues.”\n In this instance, Carter and White pulled Kasiah up, dragging his torso along\nthe barrier somewhat. They then grabbed Kasiah’s legs. Kasiah’s body appears to\nhave never been more than a foot above the barrier. Nevertheless, at one point his\nlegs were higher in the air than his head.\n\n -3-\n\fwas approximately five feet, eleven inches tall and weighed around 160 pounds.\nCarter was a “large,” five-foot-four-inch, “stocky,” wide-shouldered man. White had\n“a smaller-build,” was approximately five feet, five inches tall, and appeared to be in\nhis “late 40s [or] early 50s.”\n\n As Carter and White pulled Kasiah over the barrier, White began to lose his\ngrip. Kasiah was basically perpendicular to the barrier at the time and not resisting.\nWithout White’s help to support Kasiah’s lower body, Carter lost his balance and\nbegan to fall from the platform. Carter then “pushed, turned, or ‘threw’” Kasiah away\nfrom him. Both men fell to the ground. Kasiah landed on his head and shoulder and\nfractured two vertebrae in his neck. Carter landed next to Kasiah or slightly on top\nof Kasiah’s lower body. Kasiah cried out that there was something wrong with his\nneck, so Carter and White ensured that Kasiah received immediate medical attention.\nCarter later charged Kasiah with disorderly conduct.\n\n B. Procedural History\n\n Two years later, Kasiah brought suit against CSI and Carter in Missouri state\ncourt for assault and battery, general negligence, vicarious liability, negligent hiring,\ntraining, and retention, and punitive damages. Nearly a year later, he amended his\npetition to add Appellee Kansas City Board of Police Commissioners (“the Board”)\nas a party. He also added claims under 42 U.S.C. § 1983 for wrongful arrest and\nexcessive force in violation of the Fourteenth Amendment and the Missouri\nconstitution. The defendants removed the case to the district court, whereupon\nseveral things happened. First, Kasiah settled his claim against CSI. Second, the\ndistrict court dismissed some of Kasiah’s claims and disposed of others through\nsummary judgment—these included all but the wrongful arrest, excessive force,\nassault and battery, and general negligence claims. None of the dismissals or prior\nsummary judgment orders are before us on appeal. Third, the parties completed\ndiscovery. Finally, Carter and the Board filed motions for summary judgment on the\n\n -4-\n\fremaining claims, arguing that Carter was entitled to qualified immunity and that the\nBoard could not be held derivatively liable for his alleged excessive use of force.\n\n The district court granted summary judgment in two orders. Relevant to this\nappeal, the district court concluded that Carter: (1) did not use excessive force in\nviolation of clearly established constitutional law; and (2) was immune from the state-\nlaw tort claims under the doctrine of official immunity. Regarding the claims against\nthe Board, the district court stated that Kasiah agreed summary judgment for the\nwrongful arrest claim was appropriate.4 The district court also held that the Board\nwas not derivatively liable on the excessive force claim because Carter did not use\nexcessive force. Alternatively, the district court held that “[e]ven if Carter’s use of\nforce was unconstitutional, [the Board was] entitled to summary judgment” because\nthe violation did not result from an official policy or the Board’s failure to train or\nsupervise Carter. Kasiah timely filed a notice of appeal.\n\n II. Discussion\n\n Kasiah argues that the district court erred when it granted summary judgment\nin favor of Carter and the Board on his claims that: (1) Carter used excessive force\nin violation of the Fourth Amendment; (2) Carter committed assault and battery and\nwas generally negligent under Missouri law; and (3) the Board was derivatively liable\nas a municipality for Carter’s use of excessive force. We review a grant of summary\njudgment de novo, viewing the facts in the light most favorable to the nonmoving\nparty. See Eggers v. Wells Fargo Bank, N.A., 899 F.3d 629, 632 (8th Cir. 2018).\n\n\n\n\n 4\n On appeal, Kasiah does not dispute that he so agreed. Nor does he now argue\nthat the district court’s decision on the wrongful arrest claim was somehow\ninappropriate.\n\n -5-\n\f A. Excessive Force\n\n Kasiah first asserts that Carter used excessive force against him in violation of\nthe Fourth Amendment. The district court analyzed whether any of three “distinct\n‘uses of force’” constituted excessive force. These uses of force were: (1) Carter\ngrabbing Kasiah; (2) Carter lifting Kasiah over the barrier; and (3) Carter “throwing”\nKasiah to the ground. The district court concluded that none of the uses of force were\nunconstitutionally excessive. For the reasons discussed below, we agree.\n\n The Fourth Amendment, as applied to the states by the Fourteenth Amendment,\nprotects individuals from “unreasonable searches and seizures” by government\nofficials. U.S. Const. amend. IV. An officer who uses excessive force “in the course\nof an arrest, investigatory stop, or other ‘seizure’ of a free citizen” acts unreasonably,\nmaking his use of force unconstitutional. Graham v. Connor, 490 U.S. 386, 395\n(1989). To determine whether an officer has used excessive force, a court must\nconsider, “based on the perspective of a reasonable officer on the scene, ‘whether the\nofficer[’s] actions are “objectively reasonable” in light of the facts and circumstances\nconfronting [him].’” Wenzel v. City of Bourbon, 899 F.3d 598, 601–02 (8th Cir.\n2018) (quoting Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015)). The court\n“evaluate[s] the objective reasonableness of the use of force by looking at the\nparticular circumstances of each case, including ‘the severity of the crime at issue,\nwhether the suspect pose[d] an immediate threat to the safety of the officer or others,\nand whether he [wa]s actively resisting arrest or attempting to evade arrest by flight.’”\nNeal v. Ficcadenti, 895 F.3d 576, 580–81 (8th Cir. 2018) (second and third alterations\nin original) (quoting Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006)). The\ncourt does not consider the question of whether an officer used excessive force “as\n‘judged . . . with the 20/20 vision of hindsight.’” Id. at 580 (quoting Hollingsworth,\n800 F.3d at 989).\n\n\n\n\n -6-\n\f Here, we conclude that no reasonable jury could find that Carter’s uses of force\nwere objectively unreasonable. Regarding the first use of force, the grab, the district\ncourt noted that it had previously determined Carter had probable cause to arrest\nKasiah for disorderly conduct. Kasiah has not appealed nor does he dispute that\ndetermination. The district court therefore concluded, and we agree, that it was\nreasonable for Carter to grab Kasiah. An officer must be permitted to grab the\narrestee and put him in handcuffs when effectuating an arrest. See Graham, 490 U.S.\nat 396 (“[T]he right to make an arrest or investigatory stop necessarily carries with\nit the right to use some degree of physical coercion . . . to effect it.”). That conclusion\nis strengthened by the fact that Kasiah points to no evidence in the record to support\na claim that the grab was anything more than what Graham permits.\n\n The second use of force, the lift, was also objectively reasonable. An officer\neffectuating an arrest need not take action devoid of all risk of harm to the arrestee\nwhen moving or attempting to move that arrestee to another location. See, e.g.,\nBoude v. City of Raymore, 855 F.3d 930, 933–34 (8th Cir. 2017) (holding that an\nofficer who physically removed a non-compliant, intoxicated woman from her vehicle\nacted in an objectively reasonable manner); Ryan v. Armstrong, 850 F.3d 419,\n427–28 (8th Cir. 2017) (concluding that the efforts made by officers to remove a\nseverely mentally agitated detainee from his cell were objectively reasonable).\nIndeed, an officer need not even “pursue the most prudent course of conduct” when\ndoing so. Church v. Anderson, 898 F.3d 830, 833 (8th Cir. 2018) (quoting Retz v.\nSeaton, 741 F.3d 913, 918 (8th Cir. 2014)); see also Aipperspach v. McInerney, 766\nF.3d 803, 806 (8th Cir. 2014) (noting that “[w]e are hesitant to second-guess the\n‘split-second judgments’ of officers working in ‘tense, uncertain, and rapidly\nevolving situation[s]’” (citation omitted)). What matters is that the officer acted\nreasonably “in light of the facts and circumstances confronting [him].” Graham, 490\nU.S. at 397.\n\n\n\n\n -7-\n\f Here, Carter acted reasonably. Having apprehended Kasiah, the natural next\nmove for Carter was to remove Kasiah from the concert. Lifting him over the barrier,\nwhile potentially risky, was a quick solution and had been done on previous\noccasions. Indeed, lifting Kasiah helped Carter avoid any difficulty or delay he\nwould have faced had he attempted to get Kasiah, a person he had probable cause to\nbelieve was guilty of disorderly conduct, through a noisy crowd at a noisy rock\nconcert and to an exit. Moreover, Carter, a “large,” “stocky,” wide-shouldered man,\nwas physically capable of lifting the non-resisting, 160-pound Kasiah up and over a\nfive-foot barrier, especially where White was available to assist him. Given these\nfacts, the prevalence of the practice among CSI security guards without incident, and\nour well-settled case law that “an officer need not pursue the most prudent course of\nconduct,” Church, 898 F.3d at 833 (citation omitted), we hold that it was objectively\nreasonable for Carter to lift Kasiah over the barrier.\n\n The final use of force, the throw, was also objectively reasonable. The parties\nagree that White lost his grip on Kasiah’s legs as Kasiah was coming over the barrier.\nThey also agree that this resulted in Carter losing his balance, causing Carter and\nKasiah to fall toward the ground. It was only then, they stipulate, that Carter “pushed,\nturned or ‘threw’” Kasiah away from him. “Throwing” Kasiah, therefore, was the\nresult of Carter’s fall, not some malicious act on the part of Carter.\n\n In his brief, however, Kasiah disagrees as to the meaning of his stipulation. He\nargues that the record shows that Carter intentionally5 threw Kasiah, apparently\n\n\n 5\n What Kasiah means by the word “intentionally” is unclear. From the way he\nuses it in his brief, Kasiah seems to be referring to something more than merely\nintending for a certain result to occur. Carter obviously intended to throw Kasiah off\nof him in that sense; that fact is not in dispute. What Kasiah appears to be talking\nabout when he uses the word “intentionally” is something more akin to malice—as\nin, Carter threw Kasiah, intending harm to Kasiah. Such a claim, however, is\nunsupported by the record.\n\n -8-\n\fbelieving that Carter’s state of mind makes the throw objectively unreasonable. The\ntest we apply, however, is an objective one. See Wenzel, 899 F.3d at 601–02. We\nare to ask whether a reasonable officer in Carter’s position would have thrown Kasiah\noff of him as the two were falling to the ground, not whether Carter subjectively\nintended to harm Kasiah. See Graham, 490 U.S. at 397 (“An officer’s evil intentions\nwill not make a Fourth Amendment violation out of an objectively reasonable use of\nforce; nor will an officer’s good intentions make an objectively unreasonable use of\nforce constitutional.”). And we conclude that the answer is “yes.” A reasonable\nofficer in Carter’s position would have been concerned with preventing injury to\nhimself and the suspect as they fell on top of each other. Redirecting the suspect so\nthat he would not fall on the officer, therefore, would be a natural thing to do. Thus,\ndespite Kasiah’s argument that Carter intentionally threw him, a fact which Carter\ndoes not dispute, we do not agree that Carter’s throw was objectively unreasonable\nand therefore excessive force.\n\n In any event, even if we could find a constitutional violation in any of these\nuses of force, Kasiah has failed to meet his burden of showing that Carter violated a\nright that was clearly established. See Church, 898 F.3d at 832 (explaining that the\nburden of showing the violation of a clearly established right for qualified immunity\npurposes is on the plaintiff). We therefore conclude that Carter is entitled to qualified\nimmunity on Kasiah’s excessive force claims.\n\n B. State Tort Claims\n\n Kasiah next asserts that the district court erred in granting Carter summary\njudgment on Kasiah’s assault and battery and general negligence claims. The district\ncourt reasoned that summary judgment for Carter was appropriate because he was\nimmune from those claims based on the Missouri doctrine of official immunity. We\nagree.\n\n\n\n -9-\n\f The Missouri doctrine of official immunity “protects public employees from\nliability for alleged acts of negligence committed during the course of their official\nduties for the performance of discretionary acts.” Southers v. City of Farmington, 263\nS.W.3d 603, 610 (Mo. 2008) (en banc). This protection is available unless the\nemployees’ “conduct is willfully wrong or done with malice or corruption.” Id. The\ndoctrine also applies when plaintiffs bring suit for certain intentional torts like assault\nand battery. See, e.g., Boude, 855 F.3d at 934–35 (upholding a grant of summary\njudgment based on official immunity for negligence and battery claims); DaVee v.\nMathis, 812 S.W.2d 816, 827 (Mo. Ct. App. 1991) (holding that the doctrine of\nofficial immunity applied to an assault charge made against police officers). A police\nofficer who decides to use force against a person “has the benefit of official\nimmunity,” Boude, 855 F.3d at 935 (quoting Fonesca v. Collins, 884 S.W.2d 63, 66\n(Mo. Ct. App. 1994)), because “[a]n ‘officer’s decision to use force in the\nperformance of his duties is discretionary,’” id. (quoting Davis v. White, 794 F.3d\n1008, 1013 (8th Cir. 2015)).\n\n Here, we hold that the official immunity doctrine applies. Carter is a police\nofficer. The parties do not dispute that he had probable cause to arrest Kasiah for\ndisorderly conduct. Carter decided to use force to remove Kasiah from the concert,\nwhich is a discretionary act under Missouri law. Boude, 855 F.3d at 935. Therefore,\nin general, Carter is immune from liability for the Missouri state tort claims Kasiah\nbrought against him.\n\n Kasiah argues, however, that Carter acted with malice, so official immunity\nshould not apply. To support his argument, Kasiah points to the facts that “Carter did\nnot observe a fight or any other altercation” and that “Kasiah complied with [Carter’s]\ndirection to approach.” Kasiah does not explain, however, how these facts, in light\nof all the other facts, could support a conclusion that Carter acted with malice.\nMoreover, nothing in the record supports such a claim. We hold that Carter did not\nact with malice. The doctrine of official immunity applies.\n\n -10-\n\f C. Derivative Liability\n\n Lastly, Kasiah argues that the Board should be held derivatively liable as a\nmunicipality for Carter’s actions. The district court concluded that the Board could\nnot be held liable because Carter had not violated the Constitution and, alternatively,\n“the constitutional violation was not the result of official policy or a deliberate[ly]\nindifferent failure to train or supervise.” We agree with the district court’s first\nconclusion and need not address the second.\n\n The Board cannot be held liable for Carter’s actions because Carter did not\nviolate the Constitution. We have repeatedly said that “‘there must be an\nunconstitutional act by a municipal employee’ before a municipality can be held\nliable.” Webb v. City of Maplewood, 889 F.3d 483, 487 (8th Cir. 2018) (quoting\nRussell v. Hennepin Cty., 420 F.3d 841, 846 (8th Cir. 2005)). Where we conclude\nthat Carter committed no unconstitutional act, the Board cannot be held liable.\n\n III. Conclusion\n\n Accordingly, we affirm the district court’s judgment.\n ______________________________\n\n\n\n\n -11-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367891/", "author_raw": "MELLOY, Circuit Judge."}]}	SMITH	MELLOY	STRAS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590638/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,246	UNITED STATES of America, Plaintiff - Appellee v. Ronald F. WHITE, Jr., Defendant - Appellant	United States v. Ronald White, Jr.	2019-02-15	18-2233	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Wollman, Shepherd", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-2233\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Ronald F. White, Jr.\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: January 18, 2019\n Filed: February 15, 2019\n ____________\n\nBefore GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Following our prior remand, United States v. White, 863 F.3d 784, 787 (8th\nCir. 2017) (en banc) (reversing conviction for possession of an unregistered firearm\nand remanding for a new trial), and after a bench trial, Ronald F. White, Jr. was\nconvicted of possession of an unregistered firearm, in violation of 26 U.S.C.\n§§ 5841, 5861(d), and 5871. Police officers found the firearm at issue, a 12-gauge\n\fshotgun known as a “Street Sweeper,” in a duffel bag in a bedroom closet at White’s\nparents’ residence. White would stay in the bedroom during his visits. The district\ncourt1 sentenced White to 46 months imprisonment, with credit for time served,\nand three years of supervised release. On appeal, White argues the evidence\npresented at trial was insufficient to show he constructively possessed the\nshotgun or that he was aware of the shotgun’s physical characteristics that brought\nit within the ambit of the National Firearms Act, 26 U.S.C. § 5801 et seq. Having\njurisdiction under 28 U.S.C. § 1291, we affirm.\n\n I.\n\n “Sufficiency of evidence is highly fact intensive,” United States v. Patton, 899\nF.3d 560, 563 (8th Cir. 2018), and “[o]ur review of the sufficiency of evidence is\nlimited.” United States v. Beltz, 385 F.3d 1158, 1163 (8th Cir. 2004). “We review\nthe sufficiency of the evidence de novo, viewing evidence in the light most favorable\nto the government, resolving conflicts in the government’s favor and accepting all\nreasonable inferences that support the verdict.” United States v. Grimes, 825 F.3d\n899, 902 (8th Cir. 2016) (quoting United States v. Washington, 318 F.3d 845, 852\n(8th Cir. 2003)). This same standard of review applies to bench trials. See United\nStates v. Erhart, 415 F.3d 965, 969 (8th Cir. 2005). “A [ ] verdict may be based on\ncircumstantial as well as direct evidence, and [t]he evidence need not exclude every\nreasonable hypothesis except guilt. Indeed, [i]f the evidence rationally supports two\nconflicting hypotheses, the reviewing court will not disturb the conviction.” United\nStates v. McArthur, 573 F.3d 608, 614 (8th Cir. 2009) (alterations in\noriginal) (internal quotation marks and citations omitted). We “will reverse only if\nthere is no construction of the evidence that supports the verdict.” United States v.\nProvost, 237 F.3d 934, 937 (8th Cir. 2001) (emphasis added).\n\n\n 1\n The Honorable Roseann A. Ketchmark, United States District Judge for the\nWestern District of Missouri.\n\n -2-\n\f II.\n\n “Section 5861(d) criminalizes possession of an unregistered ‘firearm.’” White,\n863 F.3d at 786 (quoting 26 U.S.C. § 5845(a), (f)). The government must prove the\nfollowing elements beyond a reasonable doubt. First, that White knew he had\npossession of the firearm. See United States v. Dukes, 432 F.3d 910, 915 (8th Cir.\n2006). Second, that he “knew of the physical characteristics of the [firearm] bringing\n[it] within the ambit of the Act.” White, 863 F.3d at 790. The Act defines a firearm\n“to include a ‘destructive device,’ the barrel of which has a bore of more than\none-half inch in diameter.”2 Id. at 786 (quoting 26 U.S.C. § 5845(a), (f)). “The Street\nSweeper, a 12-gauge shotgun, is subject to the Act’s registration mandate because it\nhas a bore diameter of .729 inches.” Id. “[K]nowledge of the bore diameter is a\nnecessary element of the offense.” Id. at 792. Third, that the firearm was “not\nregistered to [White] in the National Firearms Registration and Transfer Record.”\n26 U.S.C. § 5861(d). White challenges only the first and second elements.\n\n “Knowing possession may be actual or constructive.” Grimes, 825 F.3d at 902\n(citing United States v. Hamilton, 332 F.3d 1144, 1150 (8th Cir. 2003)). The\ngovernment’s case against White was based on constructive possession.\n“Constructive possession requires that the defendant has dominion over the premises\nwhere the firearm is located, or control, ownership, or dominion over the firearm\nitself. Constructive possession may be established by circumstantial evidence alone,\nbut the government must show a sufficient nexus between the defendant and the\nfirearm.” Id. (quoting United States v. Garrett, 648 F.3d 618, 622 (8th Cir. 2011)).\n“[C]onstructive possession requires knowledge of the presence of a firearm . . . .”\n\n 2\n In cases involving destructive devices, the government need not prove that the\nfirearm was capable of operating as designed or could readily be put in operating\ncondition because “it is not necessary that the device actually function as intended.”\nUnited States v. Ragusa, 664 F.2d 696, 700 (8th Cir. 1981); accord United States v.\nHammond, 371 F.3d 776, 781 n.3 (11th Cir. 2004).\n\n -3-\n\fUnited States v. White, 816 F.3d 976, 985 (8th Cir. 2016) (citing United States v.\nBattle, 774 F.3d 504, 511 (8th Cir. 2014)). In the usual case, “the defendant’s control\nover the area where the weapon was found . . . gives rise to a strong inference of\nknowledge,” which “may be rebutted if other evidence contradicts it.” United States\nv. Dooley, 580 F.3d 682, 686 (8th Cir. 2009). Additionally, “knowledge can be\ninferred from circumstantial evidence, including any external indications signaling\nthe nature of the weapon.” Staples v. United States, 511 U.S. 600, 615 n.11 (1994).\n\n A.\n\n First, regarding whether White knew he possessed the shotgun, the district\ncourt found “the duffel bag containing the Street Sweeper had the Amtrak train ticket\nin [White’s name],” the “revolver found in the duffel bag along with the Street\nSweeper had [White’s] DNA,” the “owners of the home denied knowledge of the\nguns and the duffel bag,” and “the duffel bag was found in the bedroom where\n[White] sometimes stayed.” The district court found it “significant that the duffel bag\nwas found in that bedroom[’s] closet,” and that testimony established that White “had\nsome clothes there.” Cf. Patton, 899 F.3d at 563 (“That [the defendant]’s personal\ndocuments were found with the ammunition [in a drawer] links [him] to the\nammunition and supports a reasonable inference that he knew it was there.”); United\nStates v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993) (finding sufficient evidence of\nconstructive possession of a firearm because the evidence showed the\ndefendant’s “personal belongings were in the bedroom where the firearms were\nlocated”). There was ample circumstantial evidence for the district court to\nreasonably infer White constructively possessed the shotgun because he had access\nto and control over the duffel bag found in his bedroom closet and had knowledge of\nthe shotgun because it was found inside the duffel bag along with the revolver, which\nhad his DNA on it, and the train ticket in his name.\n\n\n\n\n -4-\n\f White asserts, however, that the district court’s findings establish he had\nconstructive possession of the duffel bag, not constructive possession of the shotgun.\nHe asserts there was no evidence from which the district court could infer he knew\nof the contents inside the duffel bag. See Appellant’s Br. 21 (“Even if Mr. White had\ndominion and control over the bedroom or the duffel bag that does not mean that he\nknew there was a firearm in the bag that had a bore over one-half inch in diameter.”).\nAt oral argument, defense counsel acknowledged it would be a “reasonable\ninference” that White was “in the bag at some point in time” but, White argues, “[t]he\ngovernment did not present evidence that [he] opened the duffel bag while the Street\nSweeper was inside it” nor that he placed the revolver inside the bag “at the time the\nbag contained the Street Sweeper.” Id. at 21-22 (emphasis added). In other words,\nWhite states it is unknown how and when the shotgun got into the duffel bag.\n\n White’s arguments, however, are merely hypothetical. Here, at the very least,\n“the evidence rationally supports two conflicting hypotheses.” McArthur, 573 F.3d\nat 614 (internal quotation marks omitted). Although both hypotheses may be\nreasonable, it is White’s that we must disregard on review. See id. This is\nnotwithstanding White’s reliance on United States v. Pace, 922 F.2d 451 (8th Cir.\n1990). In Pace, we concluded the evidence was “insufficient to justify a reasonable\ninference [the defendant] knew he was driving a car full of cocaine” because there\nwas no evidence he “opened or examined” the luggage containing the cocaine, which\nbelonged to another individual in the car. Id. at 453. Here, unlike in Pace, defense\ncounsel acknowledged it would be a “reasonable inference” that White was “in the\nbag at some point in time.”\n\n B.\n\n Next, regarding whether White knew the shotgun had a bore diameter of more\nthan one-half inch, the district court found “the person possessing the gun is easily\naware of the bore being more than a half inch.” White asserts “[t]he court did not find\n\n -5-\n\f[he] had ever seen or handled the Street Sweeper” nor did it find he “was familiar\nwith Street Sweeper shotguns in particular or shotguns in general, such that he would\nknow that 12 gauge shotguns have bores wider than one-half inch.”\nAppellant’s Br. 23. We have already discussed the sufficiency of the evidence as to\nWhite’s knowing possession of the shotgun. Further, in the absence of direct\nevidence, the district court “can infer the requisite knowledge [of the physical\ncharacteristics of a firearm] from the condition of the [firearm] . . . including any\nexternal indications signaling the nature of the weapon.” United States v. Hutchins,\n292 F. App’x 842, 844 (11th Cir. 2008) (per curiam) (internal quotation marks\nomitted); see also Staples, 511 U.S. at 615 n.11; United States v. Spinner, 152 F.3d\n950, 963 (D.C. Cir. 1998) (Garland, J., dissenting) (“[T]he law has no preference for\ndirect evidence over circumstantial, . . . and often it is the latter that is the more\nreliable.”).\n\n In Hutchins, the court noted that “[t]estimony about the length of the gun’s\nbarrel and the admission of the gun into evidence can be sufficient circumstantial\nevidence from which a jury could infer the defendant knew the length of the gun\nbarrel was less than 18 inches.” 292 F. App’x at 844 (citing United States v. Miller,\n255 F.3d 1282, 1287 (11th Cir. 2001)); see also United States v. Gonzales, 535 F.3d\n1174, 1179 (10th Cir. 2008) (finding sufficient evidence for jury to reasonably infer\nthe defendant knew the shotgun’s barrel was less than eighteen inches in length\nbecause of testimony from officers regarding its length and because the shotgun was\nalso admitted into evidence). Although Hutchins involved testimony about the length\nof a gun’s barrel, we see no meaningful distinction between testimony about the\nlength of a shotgun’s barrel versus the bore size of the barrel, especially if the\nshotgun was admitted into evidence. Here, there is sufficient evidence of White’s\nknowing possession of the shotgun. Moreover, there is testimony that the shotgun’s\nbore diameter was approximately .752 inches, and the shotgun was admitted into\nevidence. Accordingly, there was ample circumstantial evidence for the district court\n\n\n\n -6-\n\fto reasonably infer White knew the shotgun had a bore diameter of more than one-\nhalf inch.\n\n III.\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368499/", "author_raw": "SHEPHERD, Circuit Judge."}]}	GRUENDER	WOLLMAN	SHEPHERD	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591246/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,249	UNITED STATES of America, Plaintiff - Appellee v. Cordero Robert SEALS, Defendant - Appellant	United States v. Cordero Seals	2019-02-15	18-1042	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Erickson, Magnuson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1042\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Cordero Robert Seals\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa\n ____________\n\n Submitted: December 14, 2018\n Filed: February 15, 2019\n ____________\n\nBefore LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District Judge.\n ____________\n\nERICKSON, Circuit Judge.\n\n After purchasing and injecting a substance containing heroin and fentanyl from\nCordero Seals, J.V. overdosed and collapsed while pumping gas at the Hawkeye\nConvenience store in Cedar Rapids, Iowa. Seals was charged with distribution of\n\n 1\n The Honorable Paul A. Magnuson, United States District Judge for the District\nof Minnesota, sitting by designation.\n\fheroin and fentanyl resulting in serious bodily injury in violation of 21 U.S.C. §§\n841(a)(1) and (b)(1)(C), and possession with intent to distribute heroin and fentanyl\nin violation of 21 U.S.C. §§ 841(a) and (b)(1)(C). Seals twice moved for judgment\nof acquittal–once at the beginning of trial, and again at the close of his case. Both\ntimes the district court2 reserved ruling. The jury convicted Seals on both counts.\nSeals then renewed his Rule 29 motion in writing which was again denied by the\ndistrict court. Seals was sentenced to 360 and 240 months concurrently on counts 1\nand 2, respectively. Seals appeals asserting that the evidence presented at trial is\ninsufficient to convict him.\n\nI. Background\n\n On November 3, 2016, Cordero Seals sold $40 worth of a substance consisting\nof heroin and fentanyl to J.V. The two men then drove to the Hawkeye Convenience\nstore where surveillance footage captured J.V. entering the restroom with a soda can\nin his hand. While in the bathroom, J.V. fashioned the can into a heroin spoon, fixed\nup a syringe, and injected himself. J.V. then returned to his truck to fill his tank with\ngasoline, where he lost consciousness and collapsed. Approximately 90 seconds\nlater, Seals entered the store from an unknown location, apparently looking for J.V.\nWhile inside the store, Seals looked in the direction of the truck and apparently\nobserved J.V. slumped near his vehicle. Seals began to frantically pace for a moment\nbefore exiting the building, flagging down another store patron for a ride and fleeing\nthe scene leaving J.V. unattended.\n\n Shortly thereafter a store employee discovered J.V. and called 9-1-1. Officers\nand paramedics promptly arrived on the scene. The first responders observed several\nsymptoms of an opiate overdose: unconsciousness, shallow breathing, poor skin\n\n\n 2\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa.\n\n -2-\n\fcoloration, and pinpoint pupils. The paramedics administered Narcan to revive J.V.\nand, within 20 to 30 seconds, he regained consciousness. The first responding police\nofficer found a syringe, lighter, and the spoon with residue on J.V.’s person. The\nIowa Division of Criminal Investigation Laboratory later identified the residue as a\nmixture of heroin and fentanyl.\n\n J.V. was transported to Mercy Hospital in Cedar Rapids for observation. While\nthere, his blood was drawn, “about half a teaspoon” of which was sent to the FBI\nlaboratory where it was tested by FBI forensic examiner Roman Karas. The initial\nscreening detected two opiates (morphine and codeine) and a subsequent screening\ndetected two more opiates (fentanyl and acetyl-fentanyl). The arguments in this case\ncenter around the acetyl-fentanyl.\n\n Karas testified that morphine is a metabolite of heroin. He further opined that\nwhen an individual takes heroin, the heroin molecules are quickly metabolized so that\nit is not uncommon to find only morphine in a subsequent blood test.3 Karas also\ntestified that fentanyl has a short half-life–generally detectable only within two to\nthree hours of ingestion. He also stated that the half-life of acetyl-fentanyl had not\nyet been medically established. Karas further testified that, due to the low volume of\nblood sampled and his inability to perform additional testing, he was unable to\ndetermine precisely which drug caused J.V.’s overdose.\n\n Dr. Joshua Pruitt also testified as an expert, concluding that J.V.’s collapse was\na result of an opiate overdose. This testimony was based on his review of the medical\ncharts, law enforcement reports of J.V.’s comatose state and his subsequent Narcan\nrevival. Dr. Pruitt also testified that any opiates in J.V.’s system before he injected\nhimself in the Hawkeye bathroom were likely not the cause of the overdose:\n\n 3\n Karas also testified that codeine is a common impurity of the heroin\npreparation process and frequently shows up on a blood sample test for heroin\noverdose victims.\n\n -3-\n\f Well, the primary issue here is an issue of timing. The timing of onset\n from the time that . . . the substance was used to the onset of his\n symptoms was very brief. That fits with the clinical picture of . . . an\n opiate overdose. If there had been other opiates, medications in the\n background that were . . . there previously, those would not have\n suddenly become so active that they would have caused that sort of a\n response. There had to be something that changed; some new drug\n introduced that caused . . . those symptoms to come on so rapidly.\n\nFinally, Dr. Pruitt confirmed Karas’s testimony that it was medically impossible to\ndetermine the concentration of the various opiates in J.V.’s blood sample but, based\non a total of roughly seven minutes from injection to collapse, the heroin-fentanyl\nmixture was the most likely cause of the overdose.\n\nII. Discussion\n\n We review “sufficiency of the evidence de novo, viewing evidence in the light\nmost favorable to the jury’s verdict, resolving conflicts in the government’s favor,\nand accepting all reasonable inferences that support the verdict.” United States v.\nTillman, 765 F.3d 831, 833 (8th Cir. 2014) (quoting United States v.\nHarris–Thompson, 751 F.3d 590, 598 (8th Cir. 2014)). “A conviction may be based\non circumstantial as well as direct evidence. The evidence need not exclude every\nreasonable hypothesis except guilt.” United States v. Tate, 633 F.3d 624, 628 (8th\nCir. 2011) (quoting United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992)).\n“The verdict will be upheld if there is any interpretation of the evidence that could\nlead a reasonable jury to convict.” United States v. Brandon, 521 F.3d 1019, 1025\n(8th Cir. 2008) (citing United States v. Hakim, 491 F.3d 843, 845 (8th Cir. 2007)).\n\n 21 U.S.C. § 841(b)(1)(C) provides for enhanced penalties “if death or serious\nbodily injury results from [the use of a controlled substance that has been unlawfully\ndistributed by a defendant].” 21 U.S.C. § 841(b)(1)(C). In Burrage v. United States,\nthe Supreme Court held that, by using the “results from” operator in this statute,\n\n -4-\n\fCongress deliberately chose to “use language that imports but-for causality,” and that\nif Congress had wished for 21 U.S.C. § 841(b)(1)(C) to apply to substantial\ncontributing factors, it would have used language denoting that concept. 134 S. Ct.\n881 (2014). Therefore, “at least where use of the drug distributed by the defendant\nis not an independently sufficient cause of the victim’s death or serious bodily injury,\na defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.\n§ 841(b)(1)(C) unless [the drug distributed by the defendant] is a but-for cause of the\ndeath or injury.” Id. at 892.\n\n Seals argues that, because the acetyl-fentanyl could have been an independent\nsufficient cause of the overdose, Burrage places a burden on the government to\nexclude the possibility that it was, in fact, independently sufficient. However, Seals’s\nclaim is based on a misapprehension of Burrage. Seals contends that merely because\nthe acetyl-fentanyl alone could have caused the overdose, this possibility must be\nexcluded as a matter of law in order to find that the heroin was a but-for cause. This\nis derived from the logical principle that the heroin is not a but-for cause of overdose\nif J.V. might have overdosed in the absence of the heroin. This reading of Burrage\nis strained and conflicts with our longstanding legal principle that, “[a]lthough the\nevidence must be consistent with guilt, it need not be inconsistent with every other\nreasonable hypothesis.” Klein v. United States, 728 F.2d 1074, 1075 (8th Cir. 1984)\n(citing United States v. Swayne, 700 F.2d 467, 472 (8th Cir. 1983)). See also Tate,\n633 F.3d at 628. In this case, the evidence did not indisputably establish that the\nacetyl-fentanyl was an independently sufficient cause of the overdose; instead it\nmerely showed that the acetyl-fentanyl could have been an independently sufficient\ncause. The evidence also showed that the heroin-fentanyl mixture could have been\neither a but-for cause or an independently sufficient cause of J.V.’s overdose. This\ncreated a factual issue for the jury to resolve rather than an absolute legal bar to\nconviction.\n\n\n\n\n -5-\n\f Seals points to Gaylord v. United States, 829 F.3d 500 (7th Cir. 2016) for\nsupport. We see no inconsistency between the court’s decision in Gaylord and the\ndistrict court’s ruling in this case. Here, there was ample evidence that the heroin was\neither a but-for cause or an independently sufficient cause of the overdose. In\nGaylord, that evidence was equivocal. Id. at 507 (concluding the enhancement may\nhave been improperly applied because there was no evidence the oxycodone was the\nbut-for cause of death and without the oxycodone, the cocaine concentration may\nhave been enough to cause the victim’s death).\n\n In this case, the evidence in a light most favorable to the verdict established\nthat J.V. purchased a mixture of heroin and fentanyl from Seals, immediately drove\nto a gas station, injected it in the bathroom, and collapsed within seven minutes. A\nreasonable jury could find that the tight chain of events strongly suggested on its own\nthat the injected mixture caused the overdose. Along with the other evidence,\nincluding Dr. Pruitt’s opinion that the seven-minute timeframe is consistent with a\nheroin overdose, the jury was within its discretion to find but-for causation. This is\nespecially true when Dr. Pruitt stated to a medical certainty that an opiate injected\nprior to the bathroom injection could not have been a but-for cause of the\noverdose–“there had to be something that changed.” Given that J.V. undisputedly\ninjected the heroin in the bathroom, it was well-within the jury’s province to draw the\nconclusion that the heroin was a but-for cause of the overdose.\n\n Even if the jury had determined that the acetyl-fentanyl was an independently\nsufficient cause of the overdose, Burrage explicitly carved out an exception for cases\nwhere there are multiple independently sufficient causes:\n\n [I]f A stabs B, inflicting a fatal wound; while at the same moment X,\n acting independently, shoots B in the head . . . also inflicting [a fatal]\n wound; and B dies from the combined effects of the two wounds, A will\n generally be liable for homicide even though his conduct was not a\n\n\n\n -6-\n\f but-for cause of B’s death (since B would have died from X’s actions in\n any event).\n\nBurrage, 134 S. Ct. at 890 (first alteration added) (internal quotation marks and\ncitation omitted).\n\n Viewing the evidence in the light most favorable to the jury verdict, there was\noverwhelming evidence presented to the jury to establish but-for causation. The jury\ndrew reasonable inferences from the evidence that J.V.’s overdose was not caused by\nany opiate in his system prior to the ingestion of the heroin/fentanyl mixture. The\nSeventh Circuit’s decision in Gaylord is neither controlling nor contradictory to our\ncase law.\n\nIII. Conclusion\n\n We affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368502/", "author_raw": "ERICKSON, Circuit Judge."}]}	LOKEN	ERICKSON	MAGNUSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591249/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,250	UNITED STATES of America, Plaintiff - Appellee v. Charmar BROWN, Defendant - Appellant	United States v. Charmar Brown	2019-02-15	17-3645	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3645\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Charmar Brown\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Nebraska - Omaha\n ____________\n\n Submitted: November 15, 2018\n Filed: February 15, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n In 2007, a jury convicted Charmar Adonis Lareese Brown of one count of\nconspiring to distribute more than 1,000 kilograms of marijuana (count 1), one count\nof possessing with intent to distribute more than 100 kilograms of marijuana (count\n6), and three counts of using and carrying a firearm during a drug-trafficking crime\n(counts 2, 4, 7). At sentencing, the district court orally sentenced him to concurrent\nterms of life and 480 months on counts 1 and 6, and to consecutive terms of 120\n\fmonths, 300 months, and 300 months on counts 2, 4, and 7. The judgment form\nerroneously said that the sentence on count 6 was life.\n\n Brown appealed. This court vacated his conviction on count 7, but otherwise\naffirmed. United States v. Brown, 560 F.3d 754, 772 (8th Cir. 2009). On remand,\nat the resentencing hearing, the parties agreed the court’s only job was to vacate the\nsentence on count 7. The court entered a new judgment, removing the 300-month\nsentence on count 7 but leaving the other sentences unchanged. Brown did not\nappeal.\n\n Brown filed his first 28 U.S.C. § 2255 motion in 2011. The district court\ndenied it; this court denied a certificate of appealability. He filed a second 2255\nmotion in 2013. The district court denied it as a successive 2255 motion that the\ncourt of appeals had not authorized under 2255(h). This court denied a certificate of\nappealability. He filed a third 2255 motion in 2016, asserting (in part) that sentencing\nand resentencing counsel were ineffective for failing to object to the unconstitutional\nlife sentence on count 6. The district court denied the motion as successive without\nauthorization, and denied a certificate of appealability. Brown asked this court to\nremand or, in the alternative, to issue a certificate of appealability. This court\ndirected the district court “to correct its judgment to reflect that Appellant Charmar\nBrown’s sentence on Count 6 is 480 months.” This court then denied the motion to\nremand as moot and dismissed the appeal. The district court corrected the judgment\non count 6 as instructed and filed a Second Amended Judgment with a sentence of\n480 months on count 6.\n\n Brown now appeals that Judgment. He argues that it is a substantive change\nand a new judgment. He then seeks to raise numerous challenges to the Second\nAmended Judgment.\n\n Under the Antiterrorism and Effective Death Penalty Act of 1996, a federal\nprisoner must receive certification from the court of appeals to file a “second or\n\n -2-\n\fsuccessive” 2255 motion. 28 U.S.C. § 2255(h). “Second or successive” is a question\nof law this court reviews de novo. See United States v. Sellner, 773 F.3d 927, 931\n(8th Cir. 2014). A 2255 petition challenging a new sentence is not successive. See\nMagwood v. Patterson, 561 U.S. 320, 339, 341-42 (2010) (If petitioner is resentenced\nbetween first and second 2254 petitions, second petition—raising claims that could\nhave been raised in a previous petition—is not successive under 2244(b) because it\nis the “first application challenging that intervening judgment.”); Dyab v. United\nStates, 855 F.3d 919, 923 (8th Cir. 2017) (“import[ing] Magwood’s inquiry about\nentry of a new judgment to the 2255 context.”). The inquiry is “whether a district\ncourt has entered a new, intervening judgment.” Id. For a 2255 motion, “it is well\nestablished that ‘[t]he sentence is the judgment.’” Id., quoting Berman v. United\nStates, 302 U.S. 211, 212 (1937). If Brown’s Second Amended Judgment is a new\nsentence, then his petition is not successive.\n\n Brown’s Second Amended Judgment is not a new sentence. The judge orally\nsentenced him to 480-months’ imprisonment on count 6. “The oral pronouncement\nby the sentencing court is the judgment of the court.” United States v. Tramp, 30\nF.3d 1035, 1037 (8th Cir. 1994). See also Fed. R. Crim. P. 35(c) (“As used in this\nrule, ‘sentencing’ means the oral announcement of the sentence.”). Though the\nwritten judgment said life on count 6, “when an oral sentence and the written\njudgment conflict, the oral sentence controls.” United States v. Mayo, 642 F.3d 628,\n633 (8th Cir. 2011). Here, the oral sentence of 480 months’ imprisonment controlled.\nThis court’s order directing the district court “to correct its judgment to reflect that\nAppellant Charmar Brown’s sentence on Count 6 is 480 months” did not change the\nsentence. Rather, that order ensured that the written judgment reflected his sentence\nof 480 months.\n\n The district court noted that the correction was under Criminal Rule 35(a).\nThat was wrong. Rule 35(a) authorizes a court to “correct a sentence that resulted\nfrom arithmetical, technical, or other clear error” within “14 days after sentencing.”\n\n\n -3-\n\fFed. R. Crim. P. 35(a). The court here corrected the judgment years after\nsentencing. See, e.g., United States v. Medina-Mora, 796 F.3d 698, 700 (7th Cir.\n2015) (“Under Federal Rule of Criminal Procedure 35(a), the district court lost any\npower it may have had to correct an ‘arithmetical, technical, or other clear error’ in\nthe sentence fourteen days after pronouncing sentence.”); United States v. Winfield,\n665 F.3d 107, 114 (4th Cir. 2012) (Rule 35(a) does not authorize district court to\namend sentence four months later).\n\n This court may affirm the Second Amended Judgment for any reason supported\nby the record. See, e.g., United States v. Price, 851 F.3d 824, 826 (8th Cir. 2017).\nThe district court’s correction of the written judgment was authorized by Criminal\nRule 36. See Fed. R. Crim. P. 36 (“[T]he court may at any time correct a clerical\nerror in a judgment, order, or other part of the record, or correct an error in the record\narising from oversight or omission.”).\n\n “Correction of a clerical or typographical error pursuant to Criminal Rule 36\n. . . does not justify disregarding prior § 2255 motions in the ‘second or successive’\ncalculus.” Dyab, 855 F.3d at 923. “Fixing typographical errors and the like does not\nsubstantively alter a prisoner’s sentence, so a § 2255 motion filed after such a\ncorrection is still a challenge to the original judgment.” Id., citing Marmolejos v.\nUnited States, 789 F.3d 66, 70-71 (2d Cir. 2015). When this court directed the\ndistrict court to correct its judgment, it was correcting an error in the record. This\ncorrection in the Second Amended Judgment did not create a new sentence for the\npurposes of Brown’s 2255 petition. His petition is successive, and his substantive\narguments are barred.\n\n *******\n\n The Second Amended Judgment is affirmed.\n ______________________________\n\n\n -4-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368503/", "author_raw": "BENTON, Circuit Judge."}]}	BENTON	BEAM	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591250/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,251	UNITED STATES of America, Plaintiff - Appellee v. Anthony Dean MILLER, Defendant - Appellant	United States v. Anthony Miller	2019-02-15	18-1507	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Erickson, Magnuson", "parties": "", "opinions": [{"author": "MAGNUSON, District Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1507\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Anthony Dean Miller\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Council Bluffs\n ____________\n\n Submitted: December 13, 2018\n Filed: February 15, 2019\n ____________\n\nBefore LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District\nJudge.\n ____________\n\nMAGNUSON, District Judge.\n\n\n\n\n 1\n The Honorable Paul A. Magnuson, United States District Judge for the District\nof Minnesota, sitting by designation.\n\f At just before 9:00 pm on May 21, 2017, Appellant Anthony Dean Miller was\na passenger in a pickup truck in Council Bluffs, Iowa. The truck, driving northbound\non South 11th Street, passed a Council Bluffs police officer driving in the opposite\ndirection on South 11th Street. At the suppression hearing, the officer testified that\nhe saw the truck leaving a home that he was familiar with from his previous work\nwith the Southwest Iowa Narcotics Enforcement Task Force, and that he was\nattempting to ascertain the truck’s Texas license plate number as he passed. The\nofficer turned his squad car around and followed the truck north on South 11th Street.\n\n South 11th Street ends at a T intersection with South 16th Avenue. There is\na park directly across South 16th Avenue from South 11th Street, and a stop sign on\nSouth 11th Street. There is no stop line for the sign, however. There is a sidewalk\non either side of South 11th Street; both of these sidewalks continue across South\n16th Avenue to the park. The sidewalk on the west side of South 11th Street\nintersects with a sidewalk on South 16th Avenue. This east-west sidewalk ends at\nSouth 11th Street, but there is no marked pedestrian crossing at South 11th Street, nor\nis there a continuation of the sidewalk on the east side of South 11th Street.\n\n The officer stopped the vehicle after observing that the truck stopped beyond\nthe unmarked stop line for the stop sign at the intersection of South 11th Street and\nSouth 16th Avenue. At the suppression hearing, the officer also testified that the\ntruck did not use a turn signal until it was 40 or 50 feet away from the stop sign.\n\n Because the officer smelled marijuana as he approached the truck, he told the\noccupants that he was going to conduct a search. Miller was removed from the\nvehicle and admitted to having a weapon in his possession. In addition, Miller had\na small amount of methamphetamine concealed in a cigarette pack.\n\n\n\n\n -2-\n\f Miller challenged the traffic stop and subsequent search. The district court2\nupheld the constitutionality of the traffic stop and denied Miller’s request to suppress\nthe evidence received.\n\n Miller entered a conditional plea of guilty to being a felon in possession of a\nfirearm, reserving the right to appeal the district court’s denial of his suppression\nmotion. After he was sentenced to 37 months’ imprisonment, he brought this appeal.\n\n The Court of Appeals reviews the district court’s factual findings for clear error\nand questions of constitutional law de novo. United States v. Smith, 715 F.3d 1110,\n1114 (8th Cir. 2013).\n\n The determinative question is whether the officer had probable cause for the\nstop. A violation of traffic law, even a minor violation, is sufficient probable cause\nto support a stop. United States v. Fuse, 391 F.3d 924, 927 (8th Cir. 2004). Iowa law\nprovides:\n\n The driver of a vehicle approaching a stop intersection indicated by a\n stop sign shall stop at the first opportunity at either the clearly marked\n stop line or before entering the crosswalk or before entering the\n intersection or at the point nearest the intersecting roadway where the\n driver has a view of approaching traffic on the intersecting roadway\n before entering the intersection.\n\nIowa Code § 321.322(1). Iowa law defines “crosswalk” as the “portion of a roadway\nordinarily included within the prolongation or connection of the lateral lines of\nsidewalks at intersections.” Id. § 321.1(16). The district court found that the\nsidewalk on the west side of the intersection continued across South 11th Street, and\n\n\n 2\n The Honorable Rebecca Goodgame Ebinger, United States District Judge for\nthe Southern District of Iowa.\n\n -3-\n\fthus there was an implied crosswalk through the intersection even though none was\nmarked.\n\n Miller contends that there was no implied prolongation of the sidewalk here\nbecause the sidewalk did not continue east of South 11th Street. Even assuming that\nthis argument is correct, a traffic stop comports with the Constitution when the officer\nreasonably believes that the vehicle has committed a traffic infraction, even if the\nvehicle did not actually commit such an infraction. See United States v. Martin, 411\nF.3d 998, 1001 (8th Cir. 2005) (“The determinative question is . . . whether an\nobjectively reasonable police officer could have formed a reasonable suspicion that\n[the defendant] was committing a code violation.”).\n\n We do “not expect state [police officers] to interpret the traffic laws with the\nsubtlety and expertise of a criminal defense attorney.” United States v. Sanders, 196\nF.3d 910, 913 (8th Cir. 1999). Moreover, “a misunderstanding of traffic laws, if\nreasonable, need not invalidate a stop made on that basis.” Martin, 411 F.3d at 1002.\nBecause there is no dispute that the truck stopped past the stop sign, at an intersection\nwhere there were clear sightlines and no need to pull past the stop sign to see\noncoming traffic, the officer reasonably believed that the vehicle violated the traffic\nlaws and there was sufficient probable cause for the stop.\n\n In the alternative, the district court found that the vehicle’s failure to use its\nturn signal as Iowa law required provided an independent basis for probable cause for\nthe stop. A turn signal must “be given continuously during not less than the last one\nhundred feet traveled by the vehicle before turning when the speed limit is forty-five\nmiles per hour or less.” Iowa Code § 321.315. The speed limit on South 11th Street\nis 25 miles per hour. The officer’s dashcam shows that the driver of the truck did not\nactivate his turn signal until he was approximately 40 to 50 feet away from the stop\nsign.\n\n\n\n -4-\n\f Miller argues that, under Iowa law, a driver need only use a turn signal when\na pedestrian or other vehicle may be affected by the turn. State v. Malloy, 453\nN.W.2d 243, 245 (Iowa Ct. App. 1990). Because there were no cars on 16th Street\nand no pedestrians in the area, Miller contends that he was not required to use his turn\nsignal.\n\n In Malloy, the defendant was stopped for failure to use his turn signal and was\nultimately charged with DWI. Id. at 244. He argued on appeal, as Miller does here,\nthat the use of a turn signal was not required because there were no other vehicles\naffected by his vehicle’s turn. The officers making the stop testified that they were\none and a half blocks behind Malloy’s vehicle at the time he turned without signaling.\nId.\n\n The Iowa Court of Appeals agreed with Malloy, because Iowa law also\nprovides that a vehicle may turn only “after giving an appropriate signal in the\nmanner hereinafter provided in the event any other vehicle may be affected by such\nmovement.” Iowa Code § 321.314. The court noted that this section “does not\nrequire a driver to use a turn signal in all instances; only in the event another vehicle\nmay be affected.” Malloy, 453 N.W.2d at 245. The court determined that § 321.314\ndetermines when a driver has the duty to use a signal, while § 321.315 proscribes only\n“how long a signal must be given once a duty to use it arises.” Id. Thus, § 321.315\ndoes not impose a duty to signal all turns; rather, a driver is “not required to signal\nhis . . . turn unless another vehicle [is] affected by the turn.” Id. Because the officers\nwere more than a block behind Malloy’s vehicle, and were the only other vehicle on\nthe road, there was no vehicle affected by his turn. The court therefore determined\nthat the failure to use a turn signal did not provide probable cause for the stop. Id.\n\n Malloy’s holding is inapposite here, however. The officer was only one to two\ncar lengths behind Miller’s vehicle, not one and a half blocks. Thus, the officer’s\nvehicle was affected by Miller’s turn within the meaning of the statute. See State v.\n\n -5-\n\fSchlichting, No. 16-579, 2017 WL 2461490, at *3 (Iowa Ct. App. June 7, 2017)\n(finding that patrol car was affected by defendant’s vehicle’s turn when it was 150 to\n250 feet behind defendant’s vehicle). As the district court found, Miller’s failure to\nuse his turn signal provided an independent basis for the stop.\n\n The district court’s resolution of the suppression issue is accordingly affirmed.\n\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368504/", "author_raw": "MAGNUSON, District Judge."}]}	LOKEN	ERICKSON	MAGNUSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591251/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,252	Samiul Alim LESUM, Petitioner v. William P. BARR, Attorney General of the United States, Respondent	Samiul Alim Lesum v. William P. Barr	2019-02-15	18-1352	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Wollman, Shepherd", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1352\n ___________________________\n\n Samiul Alim Lesum\n\n lllllllllllllllllllllPetitioner\n\n v.\n\n\n William P. Barr, Attorney General of the United States\n\n lllllllllllllllllllllRespondent\n ____________\n\n Petition for Review of an Order of the\n Board of Immigration Appeals\n ____________\n\n Submitted: January 14, 2019\n Filed: February 15, 2019\n ____________\n\nBefore GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Samiul Alim Lesum filed a petition seeking judicial review of the denial of\nhis application for asylum under 8 U.S.C. § 1158, the denial of his request for\nwithholding of removal under 8 U.S.C. § 1231(b)(3), and the denial of protection\nunder the Convention Against Torture (CAT), 8 C.F.R. § 208.16(c). Having\njurisdiction under 8 U.S.C. § 1252, we deny the petition.\n\f I.\n\n The Department of Homeland Security initiated removal proceedings against\nLesum, a native and citizen of Bangladesh. He had been admitted to the United\nStates as a nonimmigrant student. Although his continued enrollment at a college or\nuniversity was a condition of his student status, he dropped out of school and\nremained in the country without authorization. After conceding removability, Lesum\napplied for asylum, withholding of removal, and protection under CAT, claiming he\nhas suffered and will suffer persecution in Bangladesh because he is gay.\nSpecifically, he claimed that, in Bangladesh, he has suffered discrimination and\nharassment, he was locked in his dorm room by others for several days, and he was\nsexually abused by his cousin. Morever, he claimed that members of the LGBT\ncommunity regularly face threats and acts of violence, one of which resulted in the\ndeath of a gay rights activist.\n\n After “consider[ing] all of the documents in the record,” the Immigration Judge\n(IJ) denied Lesum all three forms of relief. First, the IJ denied his asylum application\nas untimely because Lesum failed to file his application “within 1 year after [he]\narriv[ed] in the United States.” 8 U.S.C. § 1158(a)(2)(B). The IJ found Lesum\nentered the country as a student on January 8, 2016, and thus should have applied for\nasylum by January 8, 2017. The IJ found Lesum’s student status terminated on\nSeptember 21, 2016, and Lesum filed his application on June 20, 2017. The IJ noted\nthat “[t]he regulations reflect that a person should file for asylum within a reasonable\nperiod of time from a status ending” and that “[t]he comments to the regulations\nreflect that a reasonable period of time is considered to be approximately six months.\nSix months from the status ending on September 21, 2016 would have been March\n21, 2017.” The IJ took into account that Lesum was not placed into removal\nproceedings until April 24, 2017. Lesum claimed his father’s death excused his late\nfiling, but the IJ did not find that credible because his father died on August 21, 2016,\none month prior to the termination of his student status. Thus, the IJ found a “six-\n\n -2-\n\fmonth period of time would have been a reasonable period of time for [Lesum] to\nhave [applied for asylum.]”\n\n The IJ also denied Lesum’s request for withholding of removal and protection\nunder CAT. The IJ believed that Lesum “has suffered discrimination and harassment\nand [had] been called names” and that “there is harassment and discrimination\nregarding gays in Bangladesh.” However, the IJ also found that Lesum has never\nbeen arrested nor charged with a crime; he was not physically harmed when he was\nlocked in his dorm room and later escaped through a window; he has not been\nphysically harmed by the government in Bangladesh; he has not been physically\nharmed otherwise in Bangladesh, except for the incident with his cousin, which,\nthough “unfortunate,” was not persecution but a crime; that, although “sexual acts\nbetween males are illegal,” “the law is rarely enforced”; and that, despite Bangladesh\nbeing “a conservative society in which homophobic attitudes persist with LGBT\npersons facing discrimination,” “tolerance of LGBT persons is improving.” The IJ\ndetermined that Lesum “has not suffered past persecution” and that, although Lesum\n“may fear or may suffer from discrimination and harassment in Bangladesh,” he\n“failed to establish that it is more likely than not that he would be persecuted by the\ngovernment or by someone that the government is unable or unwilling to\ncontrol . . . .” The IJ found that, “[a]lthough some LGBT persons have reportedly\nfaced harassment by law enforcement officers, this does not in general amount to\npersecution or serious harm.” For these same reasons, the IJ also determined Lesum\n“failed to establish that it is more likely than not that he would be tortured by the\ngovernment or somebody acting with the acquiescence of the government,” to warrant\nrelief under CAT.\n\n Lesum appealed the IJ’s decision to the Board of Immigration Appeals (BIA),\nwhich dismissed the appeal. Lesum argued that the death of his father, which led to\nhis inability to pay for schooling, caused him to lapse into depression, which\nwarranted an extension of more than six months to file for asylum. The BIA found\n\n -3-\n\f“no reason to disturb” the IJ’s determination regarding Lesum’s untimely asylum\napplication because Lesum had not provided medical evidence to corroborate his\nclaim that he suffered from depression following his father’s death. The BIA agreed\nwith the IJ’s determination regarding Lesum’s request for withholding of removal\nbecause Lesum’s allegations did not “ris[e] to the level of persecution.” Moreover,\nthe BIA noted that the IJ’s determination “reflect[ed] a thorough consideration of the\nevidence presented” and “weighed all relevant evidence,” concluding that the\n“findings are supported by the record.” Finally, with respect to protection under\nCAT, the BIA explained that, “[w]hile the Department of State Country Reports for\nBangladesh reveal discrimination, harassment, and sometimes violence against the\nLGBT community exists, the reports do not support [Lesum]’s claim that he will more\nlikely than not suffer torture with government acquiescence.” This petition for\nreview followed.\n\n II.\n\n Lesum challenges the denial of his application for asylum, the denial of his\nrequest for withholding of removal, and the denial of protection under CAT. “Where,\nas here, the BIA has adopted the Immigration Court’s opinion and added reasoning\nand analysis of its own, we review both decisions.” Agha v. Holder, 743 F.3d 609,\n614 (8th Cir. 2014) (citing Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.\n2004)). We review “legal determinations de novo, and factual findings for substantial\nevidence.” Id. (citing Nadeem v. Holder, 599 F.3d 869, 872 (8th Cir. 2010)).\n\n A.\n\n Lesum first challenges the denial of his asylum application as untimely.\nCongress, however, has expressly stated “[n]o court shall have jurisdiction to review\nany determination of the Attorney General” that an asylum application was untimely\nfiled. Burka v. Sessions, 900 F.3d 575, 576 (8th Cir. 2018) (alteration in\n\n -4-\n\foriginal) (quoting 8 U.S.C. § 1158(a)(3)). Notwithstanding § 1158(a)(3), “we may\nstill review ‘constitutional claims or questions of law raised upon a petition for\nreview.’” Id. (quoting 8 U.S.C. § 1252(a)(2)(D)). Lesum argues the IJ committed\nlegal error because it strictly enforced a six-month deadline to apply for asylum after\nthe termination of his student status, without considering whether his longer delay in\nfiling was reasonable under the circumstances. Pet’r’s Br. 15. We disagree.\n\n An application for asylum must be “filed within 1 year after the date of the\nalien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). The IJ found Lesum\narrived in the country on January 8, 2016, and thus should have applied for asylum\nby January 8, 2017. However, he filed his application on June 20, 2017. There is a\nstatutory exception to the one-year deadline: a late application for asylum may be\nconsidered “if the alien demonstrates to the satisfaction of the Attorney\nGeneral . . . extraordinary circumstances relating to the delay in filing an application\nwithin the [one-year] period . . . .” Id. § 1158(a)(2)(D). “The maintenance of lawful,\nnon-immigrant status may constitute an ‘extraordinary circumstance’ excusing an\napplicant’s failure to file within one year of arrival in the United States. However,\nan applicant must still file the asylum application within a reasonable period of time\nfollowing the expiration of lawful status.” James v. Lynch, 627 F. App’x 511, 514\n(6th Cir. 2015) (citing 8 C.F.R. § 208.4(a)(5)(iv)); see also Al Ramahi v. Holder, 725\nF.3d 1133, 1135 (9th Cir. 2013); Vrljicak v. Holder, 700 F.3d 1060, 1061 (7th Cir.\n2012) (“In other words, an alien properly in the United States may request asylum\nduring a ‘reasonable’ time after authorized status ends, even if the total time between\nentry and application exceeds one year.”); Zhu v. Gonzales, 493 F.3d 588, 594 (5th\nCir. 2007). “[I]t is reasonable for an applicant ‘to apply as soon as possible after\nexpiration’ of . . . lawful status, and unreasonable to wait ‘six months or longer after\nexpiration or termination of status.’” Al Ramahi, 725 F.3d at 1135 (quoting 65 Fed.\nReg. 76121-01, at 76123-24); see also 65 Fed. Reg. 76121-01, at 76123 (“Failure to\napply within a reasonable time after expiration of the status would foreclose the\nperson from meeting the statutory filing requirements.”).\n\n -5-\n\f The IJ noted that “[t]he comments to the regulations reflect that a reasonable\nperiod of time is considered to be approximately six months.” See 65 Fed. Reg.\n76121-01, at 76123-24 (“Clearly, waiting six months or longer after expiration or\ntermination of status [to apply for asylum] would not be considered reasonable.”).\nThe IJ found Lesum’s student status terminated on September 21, 2016, and six\nmonths after that date would have been March 21, 2017. The IJ did not find Lesum’s\nfather’s death to be a credible excuse for his late filing because his father died on\nAugust 21, 2016, one month prior to termination of his student status; thus, she found\nthat a “six-month period of time would have been [] reasonable . . . .” Cf. Khatri v.\nHolder, 533 F. App’x 17, 19 (2d Cir. 2013) (summary order) (finding no error in\nagency’s determination that applicant’s “eight-month delay in filing for asylum after\nthe alleged change in circumstances” was “presumptively unreasonable”);\nToj-Culpatan v. Holder, 612 F.3d 1088, 1090 n.2 (9th Cir.\n2010) (per curiam) (“[U]nreasonableness is presumed after six months under section\n208.4(a)(5)(iv).”). To the extent Lesum asks us to second-guess the IJ’s\ndetermination of a reasonable period, we cannot do so. Cf. Gumaneh v. Mukasey,\n535 F.3d 785, 788 (8th Cir. 2008) (noting that the preclusion of § 1158(a)(3) “extends\nto the IJ’s determination that an applicant has not filed within a reasonable period”).\n\n Accordingly, we find no legal error in the IJ’s determination that Lesum’s\napplication for asylum was untimely.\n\n B.\n\n Next, Lesum challenges the denial of his request for withholding of removal,\nand the denial of protection under CAT. “We will overturn the IJ’s denial of\nwithholding of removal or protection under the CAT only if the evidence is so\ncompelling that no reasonable factfinder would have denied relief.” Mompongo v.\nGonzales, 406 F.3d 512, 514 (8th Cir. 2005) (citing Ngure v. Ashcroft, 367 F.3d 975,\n989, 992 (8th Cir. 2004)). Removal to Bangladesh “must be withheld if [Lesum]\n\n -6-\n\festablishe[s] a clear probability of persecution [there].” Agha, 743 F.3d at\n615 (internal quotation marks omitted). In other words, for purposes of withholding\nof removal, Lesum must establish that it is more likely than not that he will suffer\npersecution for being gay. See Mompongo, 406 F.3d at 514. Additionally, “[t]o\nqualify for relief under the CAT, [Lesum] must show it is more likely than not that\nhe . . . would be tortured if returned to [Bangladesh].” Agha, 743 F.3d at 615\n(internal quotation marks omitted). To constitute “torture” under CAT, the relevant\nacts “must be ‘inflicted by or at the instigation of or with the consent or acquiescence\nof a public official.’” Miah v. Mukasey, 519 F.3d 784, 788 (8th Cir.\n2008) (quoting 8 C.F.R. § 208.18(a)(1)). “A government does not acquiesce in the\ntorture of its citizens merely because it is aware of torture but powerless to stop it, but\nit does cross the line into acquiescence when it shows willful blindness toward the\ntorture of citizens by third parties.” Id. (quoting Mouawad v. Gonzales, 485 F.3d\n405, 413 (8th Cir. 2007)).\n\n Lesum argues the IJ and BIA erred in denying his request for withholding of\nremoval because he “provided substantial, credible evidence that the probability of\na threat to [his] safety was ‘more likely than not,’” pointing to acts of discrimination,\nthreats, and harassment, including “widespread harassment of LGBT persons.”\nPet’r’s Br. 21. Lesum also argues the IJ and BIA erred in denying him protection\nunder CAT because he “established that he has already been targeted for torture” and,\nif returned to Bangladesh, “it is more likely than not he would suffer similar acts of\ntorture.” Id. at 23. In support of both arguments, Lesum specifically points to the\ntime he was sexually abused by his cousin, the time he was locked in his dorm room\nfor several days, and to discrimination and harassment he endured in Bangladesh,\nincluding being called names. We find Lesum’s arguments unavailing.\n\n First, as the BIA noted and the administrative record confirms, Lesum did not\ncontest the IJ’s finding that the criminal acts against Lesum by his cousin did not\nconstitute persecution for purposes of withholding removal. “When an issue is\n\n -7-\n\fabandoned before the BIA, it is not preserved for our review.” Nyonzele v. INS, 83\nF.3d 975, 984 (8th Cir. 1996) (citing Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir.\n1980)). Second, Lesum’s brief submitted to the BIA only included an argument that\nhe “suffered persecution by his college classmates” when he was locked in his dorm\nroom for several days; it made no reference whatsoever to the specific acts he puts\nforward now as evidence of persecution. Thus, the administrative record indicates\nLesum only contested one of the IJ’s findings—that Lesum’s confinement to his dorm\nroom did not constitute persecution—and did not contest any of the IJ’s other\nfindings regarding persecution. See id. (finding issue not briefed to BIA has not been\npreserved for judicial review). “The BIA ‘cannot be expected to resolve issues\nthat . . . should have [been] raised, but [were] not.’” Id. (quoting Perez-Rodriguez v.\nINS, 3 F.3d 1074, 1080 (7th Cir. 1993)). In any event, the specific acts Lesum puts\nforward as evidence of persecution generally do not rise to the level of persecution.\nSee Agha, 743 F.3d at 617 (finding substantial evidence supported the BIA’s\nconclusion that general allegations of “widespread discrimination” are insufficient to\nconstitute persecution); Quomsieh v. Gonzales, 479 F.3d 602, 606 (8th Cir.\n2007) (noting “unfulfilled threats of injury” are insufficient to constitute\npersecution); Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006) (noting “limited\ndetentions” do not usually constitute persecution); Fisher v. INS, 291 F.3d 491,\n497 (8th Cir. 2002) (noting “slurs and harassment from private individuals . . . do not\nconstitute persecution”). Lesum’s arguments are devoid of any legal authority stating\notherwise.\n\n Finally, a review of the administrative record indicates Lesum did not contest\nto the BIA the IJ’s denial of protection under CAT and, therefore, this issue has been\nabandoned. See Nyonzele, 83 F.3d at 984. Nevertheless, Lesum has provided no\nevidence of “torture” as defined by 8 C.F.R. § 208.18(a)(1), much less evidence of\n“willful blindness” toward the torture of citizens of Bangladesh by third parties.\nMiah, 519 F.3d at 788.\n\n\n\n -8-\n\f Accordingly, in light of the record, including the thorough analyses performed\nby the IJ and the BIA, and the applicable case law, neither the IJ nor the BIA erred\nin denying Lesum’s request for withholding of removal and in denying him protection\nunder CAT.\n\n III.\n\n The petition for review is denied.\n ______________________________\n\n\n\n\n -9-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368505/", "author_raw": "SHEPHERD, Circuit Judge."}]}	GRUENDER	WOLLMAN	SHEPHERD	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591252/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,254	Melissa MAHER, Plaintiff - Appellant v. IOWA STATE UNIVERSITY, Defendant - Appellee	Melissa Maher v. Iowa State University	2019-02-15	18-1559	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Wollman, Shepherd", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1559\n ___________________________\n\n Melissa Maher\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Iowa State University\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: January 15, 2019\n Filed: February 15, 2019\n ____________\n\nBefore GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n Melissa Maher appeals the district court’s1 grant of Iowa State University’s\n(“ISU”) motion for summary judgment. She argues that her action is not barred by\n\n 1\n The Honorable Helen C. Adams, Chief Magistrate Judge, United States\nDistrict Court for the Southern District of Iowa, to whom the case was referred by\nconsent of the parties pursuant to 28 U.S.C. § 636(c).\n\fthe applicable statute of limitations and that ISU was deliberately indifferent. We\naffirm.\n\n Patrick Whetstone sexually assaulted Maher in March 2014. Both Maher and\nWhetstone were ISU students at the time. Maher reported the assault to ISU, and ISU\nbegan an investigation after Maher identified her assailant in May 2014. ISU\nsubsequently issued a no-contact order that prohibited Whetstone from interacting\nwith Maher.\n\n When Maher returned to ISU in the late summer of 2014, she discovered that\nWhetstone lived in a building close to her own. Maher, her parents, and her\nroommate met with ISU administration to discuss a housing change on August 20,\n2014. At that meeting, ISU explained that it could not move Whetstone until the\ninvestigation and hearing process concluded. ISU presented at least two alternative\nhousing arrangements for Maher.2 She declined both. On September 19, 2014, ISU’s\ninvestigative report concluded that Whetstone sexually assaulted Maher. Maher\nwithdrew from ISU shortly after. On July 22, 2015, an administrative judge found\nthat Whetstone was responsible for violating ISU’s Code of Conduct and expelled\nhim.\n\n Maher filed a Title IX action against ISU on September 9, 2016. 20 U.S.C.\n§ 1681(a). She argued that she was “excluded from participation in and denied the\nbenefits of the educational programs at ISU as a result of ISU’s response to the sexual\nassault.” ISU filed a motion for summary judgment, which the district court granted.\n\n 2\n ISU claims it presented three options to Maher, including a room reserved for\nemergency situations. But Maher claims that “[t]he facts establish that [ISU]\ngenerally maintains a small number of beds for emergency situations, but not that any\nwere available for Maher or that one was offered to Maher.” On a motion for\nsummary judgment, we construe the record in the light most favorable to Maher. See\nScott v. Harris, 550 U.S. 372, 378 (2007).\n\n -2-\n\fThe district court concluded that Maher’s claim was time barred by Iowa’s two-year\nstatute of limitations because it accrued on August 20, 2014, the day ISU\nadministration met with Maher, her parents, and her roommate to discuss the housing\nsituation.3 The district court also held that Maher had not raised a material question\nof fact as to whether ISU was deliberately indifferent and that she had not\n“demonstrated a genuine issue of material fact as to whether ISU engaged in severe,\npervasive, and objectively offensive discrimination against Maher because of her\nsex.” Maher appeals, arguing that her action was not time barred and that there is a\ngenuine dispute as to a material fact—whether ISU was deliberately indifferent.\n\n “We review a district court’s grant of summary judgment de novo, viewing the\nevidence in the light most favorable to the nonmoving party.” Ridenour v.\nBoehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1065 (8th Cir. 2012). “[A] court\nshall grant summary judgment if the movant shows that there is no genuine dispute\nas to any material fact and the movant is entitled to judgment as a matter of law.”\nFed. R. Civ. P. 56(a).\n\n We assume, without deciding, that Maher’s claim survives Iowa’s statute of\nlimitations. Thus, we consider Maher’s Title IX claim on the merits. Title IX\nrequires that “[n]o person in the United States shall, on the basis of sex, be excluded\nfrom participation in, be denied the benefits of, or be subjected to discrimination\nunder any education program or activity receiving Federal financial assistance.” 20\nU.S.C. § 1681(a). Maher’s Title IX claim must demonstrate that ISU was “(1)\ndeliberately indifferent (2) to known acts of discrimination (3) which occurr[ed]\nunder its control.” K.T. v. Culver-Stockton College, 865 F.3d 1054, 1057 (8th Cir.\n\n\n 3\n Title IX does not include a statute of limitations. Instead, Title IX claims are\n“governed by the state’s personal injury statute of limitations.” Walker v. Barrett,\n650 F.3d 1198, 1205 (8th Cir. 2011). Iowa’s personal injury statute of limitations is\ntwo years. Iowa Code Ann. § 614.1(2).\n\n -3-\n\f2017). We conclude that there is no genuine dispute as to whether ISU was\ndeliberately indifferent.\n\n Maher argues that “[i]t wasn’t until [ISU] refused to move the man it admitted\nraped Maher and offered no comparable housing that . . . . [ISU] was deliberately\nindifferent to Maher.” In other words, Maher argues that ISU’s handling of the\nhousing situation became deliberately indifferent only after ISU’s investigative report\nconcluded that Whetstone sexually assaulted Maher. A school is deliberately\nindifferent when its “response to the harassment or lack thereof is clearly\nunreasonable in light of the known circumstances.” Davis Next Friend LaShonda D.\nv. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999). “This clearly unreasonable\nstandard is intended to afford flexibility to school administrators.” Estate of Barnwell\nby and through Barnwell v. Watson, 880 F.3d 998, 1007 (8th Cir. 2018) (internal\nquotation marks omitted). “[V]ictims of peer harassment” do not “have a Title IX\nright to make particular remedial demands.” Davis, 526 U.S. at 648.\n\n Before the conclusion of ISU’s investigative report, ISU had offered Maher at\nleast two reasonable housing alternatives that would have resolved Maher’s objection\nto the housing situation: a converted housing den or a room at the Memorial Union\nHotel. But Maher declined both of those options, and dissatisfaction with the\nschool’s response does not mean the school’s response can be characterized as\ndeliberate indifference. See Ostrander v. Duggan, 341 F.3d 745, 751 (8th Cir. 2003).\nAfter ISU’s investigative report concluded that Whetstone sexually assaulted Maher,\nthere was no reason for ISU to think that Maher’s dissatisfaction with its proposed\nhousing alternatives would have changed.\n\n And while Maher’s preference was that ISU move Whetstone, it was not\ndeliberately indifferent for ISU to wait to take such action until the hearing process\nconcluded because ISU was respecting Whetstone’s procedural due process rights.\nSee Keefe v. Adams, 840 F.3d 523, 535 (8th Cir. 2016) (explaining that when conduct\n\n -4-\n\f“that leads to an adverse academic decision is of a disciplinary nature, due process\nmay require . . . procedural protections.”); Davis, 526 U.S. at 649 (“[I]t would be\nentirely reasonable for a school to refrain from a form of disciplinary action that\nwould expose it to constitutional or statutory claims.”). Further, ISU instituted a no-\ncontact order between Whetstone and Maher in May 2014, and there is no evidence\nthat it was violated. Thus, there is no genuine dispute that ISU was deliberately\nindifferent after its investigative report concluded that Whetstone sexually assaulted\nMaher because ISU was not clearly unreasonable in light of the known circumstances.\nSee id. at 648. The district court properly granted ISU’s motion for summary\njudgment.\n\n For the foregoing reasons, we affirm.\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368507/", "author_raw": "GRUENDER, Circuit Judge."}]}	GRUENDER	WOLLMAN	SHEPHERD	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591254/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,013	UNITED STATES of America, Plaintiff - Appellee v. Chavez SPOTTED HORSE, Defendant - Appellant	United States v. Chavez Spotted Horse	2019-02-20	18-1138	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Erickson, Magnuson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1138\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Chavez Spotted Horse\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: December 14, 2018\n Filed: February 20, 2019\n ____________\n\nBefore LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District\nJudge.\n ____________\n\nERICKSON, Circuit Judge.\n\n In October 2017, a jury found Chavez Spotted Horse guilty of three counts of\nChild Abuse, in violation of 18 U.S.C. § 1153 and SDCL § 26-10-1, as well as three\n\n\n 1\n The Honorable Paul A. Magnuson, United States District Judge for the District\nof Minnesota, sitting by designation.\n\fcounts of Assault with a Dangerous Weapon, in violation of 18 U.S.C. §§ 1153 and\n113(a)(3). Spotted Horse appeals, asserting that the district court2 erred in four ways:\n(1) by defining “dangerous weapon” too broadly in its jury instructions; (2) in refusing\nto instruct the jury on reasonable use of disciplinary force by a guardian, which is a\ndefense to child abuse under South Dakota law; (3) by excluding evidence of his\nreason for disciplining his niece P.M.; and (4) by denying his subsequent motion for\na mistrial. We affirm.\n\n I. Background\n\n Between October 2014 and December 2016, P.M. and her older brother C.S.H.\nlived with their uncle Spotted Horse in Little Eagle, South Dakota. Little Eagle is\nlocated on the Standing Rock Indian Reservation. The children had volunteered to\nlive with Spotted Horse because their grandmother and legal guardian could no longer\nhandle the number of grandchildren living in her house.\n\n On December 1, 2016, the staff at Little Eagle Day School reported to the\nBureau of Indian Affairs that they had noticed facial bruises and scratches consistent\nwith child abuse on P.M., a fifth grader at the school. Special Agent Sheri Salazar\nresponded. Agent Salazar interviewed the girl and examined her injuries. The agent\nalso observed “several abrasions and contusions to her back in different stages of\nhealing,” and bruises on her arms, hands, shoulders, and legs.\n\n Agent Salazar then took P.M. to Indian Health Services in Fort Yates, North\nDakota, where P.M. was examined by a pediatrician, Dr. Sara Jumping Eagle. Dr.\nJumping Eagle observed that P.M. had “numerous bruises [and] contusions” at\n“various stages of healing throughout her entire body”—specifically mentioning\n\n\n 2\n The Honorable Charles B. Kornmann, United States District Judge for the\nDistrict of South Dakota.\n\n -2-\n\finjures to P.M.’s left ear, both sides of her face, one of her hands, and her back, thighs,\nand upper arms. Suspecting abuse, Dr. Jumping Eagle referred P.M. to Sanford\nHospital in Fargo, North Dakota, to see another pediatrician and have additional tests\ndone to rule out a possible brain injury. Dr. Jumping Eagle also recommended that\nP.M. be monitored because “as the bruising healed it could also go into her\nbloodstream and affect her kidneys.” Finally, Dr. Jumping Eagle recommended a\nfollow-up appointment because of a finding on one of P.M.’s X-rays.\n\n P.M. told investigators that Spotted Horse hit her with four different objects on\nthree separate days during the past week. On November 27, 2016, Spotted Horse\nconfronted P.M., accusing her of improper behavior with boys at school. When P.M.\nrefused to answer his questions, Spotted Horse beat her with a plastic spoon. The next\nday, Spotted Horse resumed his interrogation of P.M. about her conduct with boys.\nThis time he beat her across the back with a wooden back scratcher until it broke.\nSpotted Horse then commanded C.S.H. to find something else that he could use to\ndiscipline P.M. C.S.H. delayed, hoping that Spotted Horse would relent, but when\ncommanded again, C.S.H. reluctantly returned with a plastic blind wand. Spotted\nHorse struck P.M. numerous times across the back with the blind wand as she\nscreamed, cried, and begged him to stop. Unsatisfied with P.M.’s answers, the\nquestioning resumed two days later, on November 30. When P.M. once again refused\nto provide answers that Spotted Horse deemed appropriate, he became enraged,\ngrabbed a plastic hanger, and beat her across the back until the hanger broke.\n\n On January 19, 2017, Spotted Horse was indicted on three counts of child abuse\nand three counts of assault with a dangerous weapon for striking P.M. with the spoon,\nblind wand, and hanger.3 Prior to trial, Spotted Horse filed a notice of his intent to\nintroduce evidence of his motive for administering the discipline to P.M. because he\n\n\n 3\n Spotted Horse was not charged for his conduct involving the wooden back\nscratcher.\n\n -3-\n\fbelieved that the motive “was a basis for Defendant to reasonably believe it was\nnecessary to discipline her in that manner.” Spotted Horse noted that the case was not\na case covered by Federal Rule of Evidence 412 but that he was giving notice pursuant\nto the rule to avoid any later claims by the United States. The specific evidence that\nSpotted Horse sought to introduce was testimony “that he was informed that P.M. was\nkissing an older boy and letting [the boy] touch her inappropriately or sexually . . . to\nexplain why [Spotted Horse] disciplined her.” He also filed a supplemental Rule 412\nnotice seeking to introduce testimony that “P.M. told [him] that she was sexually\nabused while in a foster home in Missouri before she moved to South Dakota.”\n\n The district court took up the notices in the final pretrial conference on October\n16, 2017, and after a brief discussion ruled the testimony mentioned in the\nsupplemental notice inadmissible. The government sought clarification of the court’s\nruling especially related to the original Rule 412 notice. The court advised that some\nof the conduct described in the original notice was admissible, noting: “[T]he fact that\nhe thought that she was hanging around with too many boys or something of that\nnature or kissing a boy or something, that would be [properly] subject to discipline,\nperhaps.”\n\n The case came on for trial the next day. At the conclusion of C.S.H.’s\ntestimony, the court held a bench conference about testimony related to P.M.’s\nbehavior with boys at school. The prosecution and defense each indicated their\n“impression that we were going to be allowed to get into the fact that the defendant\nbelieved that she may have been kissing or inappropriately contacting older boys.”\nDuring the bench conference, the court clarified its ruling, directing, “But when you\nget into the question of whether or not this child allowed some boys to sexually touch\nher, to molest her, to commit a crime, that’s barred by Rule 412, in my opinion,\nunless, of course, its exclusion would violate the constitutional rights of the\ndefendant.” Defense counsel moved for a mistrial “because this is a ruling, middle of\ntrial, contrary to what the ruling was yesterday. And that . . . now affects how I can\n\n -4-\n\fpresent my defense.” The court denied the motion for a mistrial and reiterated, “I’m\ntelling you that you’re not going to ask her whether she was sexually – whether she\nhas been sexually touched by anybody. . . . If she is kissing boys under the bleachers,\nthat’s fine.” Defense counsel renewed the motion during a chambers conference at\nthe end of the day, and the court again denied the motion.\n\n Spotted Horse elected to testify on his own behalf. In that testimony, he\nadmitted to hitting P.M. with the objects but explained that he believed the discipline\nwas necessary. Specifically Spotted Horse testified that he was merely disciplining\nP.M. for misbehaving and that he resorted to physical discipline only as a last resort\nafter lesser forms of discipline, such as verbal correction, grounding, and extra chores,\nproved ineffective. Spotted Horse testified that he was concerned about P.M.\nbothering and kissing boys at school and that he was trying to stop her behavior from\nescalating into something more serious. When Spotted Horse attempted to testify\nabout P.M. engaging in sexual touching with boys at school, the court prohibited him\nfrom doing so and struck his answer.\n\n On October 17, 2017, the district court held an instructions conference. Prior\nto trial, Spotted Horse had submitted proposed jury instructions. Defendant’s\nProposed Jury Instruction No. 13 stated in relevant part, “A ‘dangerous weapon’\nmeans an object used in a manner likely to endanger life or inflict serious bodily\nharm.” Spotted Horse objected to the court’s Jury Instruction No. 18, which read,\n“The phrase ‘dangerous weapon,’ as used in these instructions means any object\ncapable of being readily used by one person to inflict bodily injury upon another\nperson.” The court overruled his objection.\n\n Spotted Horse also requested that the court add Defendant’s Proposed\nInstruction No. 14 to the court’s instructions. The proposed instruction, based on the\nstatutory defense to child abuse provided in SDCL § 22-18-5, stated:\n\n\n\n -5-\n\f As it pertains to the charges of Child Abuse, it is a defense if the\n Defendant used reasonable force against P.M. for restraint or correction.\n The use of force against a child is not unlawful if committed by a parent,\n an authorized agent of any parent, or by any guardian, in the exercise of\n a lawful authority to restrain or correct the child and if restraint or\n correction has been rendered necessary by the misconduct of the child,\n or by the child’s refusal to obey the lawful command of such parent or\n an authorized agent or guardian, and the force used is reasonable in\n manner and moderate in degree.\n\nThe court overruled Spotted Horse’s requested instruction, explaining:\n\n The South Dakota child abuse statute, which is SDCL 26-10-1, deals\n with possible defenses to charges of child abuse if the defendant used\n reasonable force, and it refers to “a parent or the authorized agent of any\n parent.” Mr. Spotted Horse is neither one of those. And then “or by any\n guardian.” He is not the guardian. And South Dakota law defines a\n “guardian” as “one appointed by the Court to be responsible for the\n personal affairs of a minor or protected person, but excludes one who is\n merely a guardian ad litem.” That’s SDCL 29A-5-102.\n\n “Guardian” is a term of art. It’s a legal term, and it’s not up to the jury\n to decide what the law is. That’s my job. And I’m ruling that Mr.\n Spotted Horse had no more authority to touch this child than I did. The\n fact that the child was living with him has no legal significance.\n\n The jury found Spotted Horse guilty on all six counts. On January 4, 2018, the\ndistrict court sentenced Spotted Horse to concurrent terms of 76 months’\nimprisonment on each count to be followed by three years of supervised release.4 This\ntimely appeal followed.\n\n\n\n 4\n The court ordered the sentence in this case to be served consecutive to the\nsentence imposed in South Dakota District Court Case No.1:17-cr-10013, Eighth\nCircuit Court of Appeals No. 18-1139.\n\n -6-\n\f II. Discussion\n\n A. Assault with a Dangerous Weapon Instruction\n\n Spotted Horse contends the district court defined “dangerous weapon” too\nbroadly in its jury instructions, “allowing the jury to convict him based on his use of\nunusually innocuous items.” “We review a district court’s formulation of jury\ninstructions for an abuse of discretion and its interpretation of law de novo.” United\nStates v. Farah, 899 F.3d 608, 614 (8th Cir. 2018) (citing United States v. Cornelison,\n717 F.3d 623, 626 (8th Cir. 2013)). We will not reverse if the instructional error is\nharmless. Id. (citing United States v. Dvorak, 617 F.3d 1017, 1024 (8th Cir. 2010)).\n\n Spotted Horse argues the district court was bound under the prior panel rule to\nuse the more restrictive definition of “dangerous weapon” that he requested. See\nMader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (quoting T.L. ex rel.\nIngram v. United States, 443 F.3d 956, 960 (8th Cir. 2006)) (“[W]hen faced with\nconflicting panel opinions, the earliest opinion must be followed ‘as it should have\ncontrolled the subsequent panels that created the conflict.’”). Spotted Horse relies on\nour decision, United States v. Hollow, 747 F.2d 481 (8th Cir. 1984), which he calls\nthe “first Eighth Circuit opinion to define [‘dangerous weapon’] under § 113.”\nHollow is the first of a line of cases that Spotted Horse erroneously believes are\nimplicated in this case. He correctly notes that in Hollow we stated, “We have no\ndifficulty concluding that the knife was used in a manner likely to endanger life or\ninflict serious bodily harm.” Id. at 482. He also correctly notes that subsequent to\nHollow in other sufficiency of the evidence cases, we defined “dangerous weapon”\nmore broadly as “an object capable of inflicting bodily injury.” See, e.g., United\nStates v. Farlee, 757 F.3d 810, 815 (8th Cir. 2014); United States v. Steele, 550 F.3d\n693, 699 (8th Cir. 2008); United States v. LeCompte, 108 F.3d 948, 952–53 (8th Cir.\n1997).\n\n\n\n -7-\n\f What Spotted Horse fails to recognize is that these sufficiency of the evidence\ncases did not focus on defining a “dangerous weapon” and our choice of phrasing in\na different context cannot be transplanted into a jury instruction context. The prior\npanel rule only applies when panel opinions actually conflict, which is simply not the\ncase here. See Passmore v. Astrue, 533 F.3d 658, 660 (8th Cir. 2008) (citing Brecht\nv. Abrahamson, 507 U.S. 619, 630–31 (1993)) (“[W]hen an issue is not squarely\naddressed in prior case law, we are not bound by precedent through stare decisis.”);\nsee also Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk in\nthe record, neither brought to the attention of the court nor ruled upon, are not to be\nconsidered as having been so decided as to constitute precedents.”).\n\n The district court did not abuse its discretion by defining “dangerous weapon”\nas “any object capable of being readily used by one person to inflict bodily injury\nupon another person.” The court’s definition fairly tracks the statute, 18 U.S.C. §\n113(a)(3), which requires “intent to do bodily harm,” rather than “serious bodily\nharm.” The definition is also consistent with the majority of our opinions over the\npast two decades involving assault with a dangerous weapon (albeit in the context of\nsufficiency of the evidence). That the objects used by Spotted Horse were relatively\ninnocuous is of no significance. See United States v. Peneaux, 432 F.3d 882, 890\n(8th Cir. 2005) (internal citations omitted) (noting that “[s]uch innocuous objects as\npool sticks and chairs have been found to constitute dangerous weapons in certain\ncircumstances”). In any event, any instructional error was harmless, given the nature\nand vast extent of P.M.’s injuries.\n\n B. Reasonable Use of Disciplinary Force Defense\n\n Spotted Horse next challenges the district court’s refusal to instruct the jury on\nthe reasonable use of disciplinary force by a guardian as a defense to the crime of\nchild abuse. When a district court declines to give a jury instruction setting forth a\nlegal defense, we review the denial de novo. United States v. Young, 613 F.3d 735,\n\n -8-\n\f743 (8th Cir. 2010). “To the extent that the district court’s legal conclusion regarding\nwhether [Spotted Horse’s] defense theory accurately reflected the law was based on\nfactual findings, we review for clear error.” Id. at 744 (quoting United States v.\nBenning, 248 F.3d 772, 775 (8th Cir. 2001)).\n\n Spotted Horse’s proposed instruction was based on SDCL § 22-18-5, which\noutlines a statutory defense to child abuse charges under South Dakota law:\n\n To use or attempt to use or offer to use force upon or toward the person\n of another is not unlawful if committed by a parent or the authorized\n agent of any parent, or by any guardian, teacher, or other school official,\n in the exercise of a lawful authority to restrain or correct the child, pupil,\n or ward and if restraint or correction has been rendered necessary by the\n misconduct of the child, pupil, or ward, or by the child’s refusal to obey\n the lawful command of such parent, or authorized agent, guardian,\n teacher, or other school official, and the force used is reasonable in\n manner and moderate in degree.\n\nThe court concluded that Spotted Horse did not qualify as a “guardian” for purposes\nof the statute because he was not P.M.’s legal guardian. Spotted Horse contends the\ncourt’s conclusion was in error because he was P.M.’s guardian under the ordinary\nmeaning of that term, which is left undefined by the statute.\n\n We need not determine whether a de facto guardian who houses and provides\nfor a child qualifies as a “guardian” for purposes of the statutory defense. Instead, we\nconclude that the district court properly denied Spotted Horse’s proffered defense\nbecause no reasonable jury could have found that his use of force was “reasonable in\nmanner and moderate in degree,” as required by the statute.\n\n\n\n\n -9-\n\f C. Exclusion of Sexual Touching Evidence and Denial of Motion\n for Mistrial\n\n Spotted Horse also argues the district court erred when it (1) prohibited him\nfrom introducing testimony that P.M. had engaged in sexual touching with boys at\nschool and (2) denied his subsequent motion for a mistrial. Spotted Horse claims the\ncourt’s ruling violated both his Fifth Amendment due process and Sixth Amendment\nconfrontation rights. He asserts that the court compounded its constitutional violation\nwhen it revisited its in limine ruling and excluded evidence both parties believed\nwould be admitted. Generally, “[w]e review a district court’s interpretation and\napplication of the rules of evidence de novo and its evidentiary rulings for abuse of\ndiscretion.” United States v. Pumpkin Seed, 572 F.3d 552, 558 (8th Cir. 2009)\n(quoting United States v. Street, 531 F.3d 703, 708 (8th Cir. 2008)). We review\nwhether an evidentiary ruling violates a constitutional right de novo. Id. (citing\nUnited States v. White, 557 F.3d 855, 857 (8th Cir. 2009)). We review the denial of\na motion for mistrial for abuse of discretion. United States v. Hollins, 432 F.3d 809,\n812 (8th Cir. 2005) (citing United States v. Flores, 73 F.3d 826, 831 (8th Cir. 1996)).\n\n We first note that rulings in limine are not etched in stone but are in their very\nnature preliminary. As one commentator has noted: “[T]he writers and cases agree\nthat a definitive ruling [in limine] does not bind the judge; she can alter the ruling in\nlight of changing circumstances.” C. Wright & K. Graham, 21 FEDERAL PRACTICE\nAND PROCEDURE 2D ED. § 5037.16 (2005). This power is inherent in the nature of\nrulings in limine, which are specifically designed to streamline the presentation of\nevidence and avoid unnecessary mistrials. The decisions, however, are necessarily\nmade before the relevance and the import of the evidence is fully revealed. If the\nevidence changes the basis for the ruling, or even if the judge is simply convinced that\nhis ruling in limine is erroneous, he retains the authority to change it. Any other rule\nwould cause unnecessary mistrials rather than avoid them.\n\n\n\n -10-\n\f Moreover, a defendant’s right to introduce evidence in his defense is not\nwithout limitation. United States v. Never Misses A Shot, 781 F.3d 1017, 1029 (8th\nCir. 2015) (citing Pumpkin Seed, 572 F.3d at 559–60). “These limitations include\n‘concerns about harassment, prejudice, confusion of the issues, the witness’ safety, or\ninterrogation that is repetitive or only marginally relevant.’” Id. (quoting Pumpkin\nSeed, 572 F.3d at 560). A court has discretion to exclude evidence under such\nlimitations “as long as they are not ‘arbitrary or disproportionate to the purposes they\nare designed to serve.’” Id. (quoting Pumpkin Seed, 572 F.3d at 560).\n\n Based on our review of the record, we are satisfied that the district court did\nnot exclude the evidence arbitrarily or hinder Spotted Horse’s ability to present his\ndefense. Despite the court’s evidentiary rulings, Spotted Horse was able to elicit\nevidence about his motivations for disciplining P.M. Spotted Horse, P.M., C.S.H.,\nand the children’s aunt and grandmother each testified that Spotted Horse was\nconcerned that P.M. was bothering, kissing, and “under the bleachers” with boys at\nschool. Notwithstanding the court’s ruling, C.S.H. briefly mentioned Spotted Horse’s\nconcerns about a boy touching P.M. at school. Two witnesses testified about Spotted\nHorse’s concerns that P.M. would end up like his sexually active and pregnant teenage\ncousins if she did not change her behavior with boys. Given this testimony, any more\ndetailed or graphic description of the touching was unnecessary to explain the reason\nfor discipline and served no purpose other than to embarrass or diminish P.M. The\ndistrict court did not err by excluding testimony about sexual touching nor abuse its\ndiscretion by denying Spotted Horse’s motion for a mistrial.\n\n III. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -11-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369266/", "author_raw": "ERICKSON, Circuit Judge."}]}	LOKEN	ERICKSON	MAGNUSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592013/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,014	Amela DOLIC, Petitioner v. William P. BARR, Attorney General of the United States, Respondent	Amela Dolic v. William P. Barr	2019-02-20	18-1230	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Wollman, Shepherd", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1230\n ___________________________\n\n Amela Dolic\n\n lllllllllllllllllllllPetitioner\n\n v.\n\n William P. Barr,1 Attorney General of the United States\n\n lllllllllllllllllllllRespondent\n ____________\n\n Petition for Review of an Order of the\n Board of Immigration Appeals\n ____________\n\n Submitted: January 15, 2019\n Filed: February 20, 2019\n ____________\n\nBefore GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n Amela Dolic petitions for review of the Board of Immigration Appeals (“BIA”)\ndecision affirming the immigration judge’s (“IJ”) denial of her motion to terminate\nremoval proceedings. We deny the petition.\n\n 1\n Pursuant to Federal Rule of Appellate Procedure 43(c)(2), William P. Barr has\nbeen automatically substituted as a party.\n\f Dolic, a native and citizen of Bosnia-Herzegovina, was admitted to the United\nStates in 2006 as a conditional resident, and in 2009 her status changed to lawful\npermanent resident. In March of 2017, a Missouri state court convicted Dolic of three\ncounts of receiving stolen property and four counts of passing a bad check.\n\n An alien convicted of “two or more crimes involving moral turpitude, not\narising out of a single scheme of criminal misconduct” is removable under the\nImmigration and Nationality Act (“INA”). See 8 U.S.C. § 1227(a)(2)(A)(ii); see also\nGomez-Gutierrez v. Lynch, 811 F.3d 1053, 1057 (8th Cir. 2016). Based on Dolic’s\nconvictions for receiving stolen property and passing bad checks, the Department of\nHomeland Security (“DHS”) charged her with removability. Dolic filed a motion to\nterminate removal proceedings and alleged that DHS had not demonstrated that her\nconvictions qualified as crimes involving moral turpitude. The IJ denied the petition,\nfinding that Dolic’s convictions were for crimes involving moral turpitude, and the\nBIA affirmed. On appeal, Dolic does not contest the fact of these convictions or that\nthey arose out of multiple schemes of criminal misconduct, but only whether they\nwere for crimes involving moral turpitude.\n\n Whether a conviction qualifies as a crime involving moral turpitude (“CIMT”)\nis a legal question, subject to de novo review. See Gomez, 811 F.3d at 1058. “In\nanalyzing that question, we afford substantial deference to the [BIA’s] interpretation\nof ambiguous statutory language in the INA and will uphold its construction if it is\nreasonable.” Id. “In the absence of a statutory definition,” the BIA has defined a\nCIMT as one “which is inherently base, vile, or depraved, and contrary to the\naccepted rules of morality and the duties owed between persons or to society in\ngeneral.” Alonzo v. Lynch, 821 F.3d 951, 958 (8th Cir. 2016). The Supreme Court\nhas also established that a crime in which fraud is an element meets the definition of\na CIMT. See Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012) (citing\nJordan v. De George, 341 U.S. 223, 229 (1951)).\n\n\n\n -2-\n\f We do not look to Dolic’s particular conduct to determine if it involved moral\nturpitude because the INA asks whether the crime of conviction fits a certain category\n(“crimes involving moral turpitude”), not whether an alien’s acts fit that category.\nSee Bobadilla, 679 F.3d at 1054-55. Under this categorical approach, “[a]n alien’s\nactual conduct is irrelevant . . . [and] the adjudicator must presume that the conviction\nrested upon nothing more than the least of the acts criminalized under the state\nstatute.” Alonzo, 821 F.3d at 960 (internal quotation marks omitted).\n\n When “a statute defines only a single crime with a single set of elements,”\nMathis v. United States, 136 S. Ct. 2243, 2245 (2016), we ask whether the crime\n“necessarily involved . . . facts equating to” the definition of a CIMT, see Moncrieffe\nv. Holder, 569 U.S. 184, 190 (internal quotation marks omitted). If so, that statute\nqualifies as a CIMT. Id. But, if there is a “realistic probability . . . that the State\nwould apply its statute to conduct that falls outside” the definition of a CIMT, that\nstatute is overbroad and fails to qualify. Id. at 206.\n\n Mo. Rev. Stat § 570.120 governs the crime of passing bad checks. It states, in\npertinent part:\n\n 1. A person commits the offense of passing a bad check when he or she:\n\n (1) With the purpose to defraud, . . . passes a check . . . knowing that it\n will not be paid by the drawee, or that there is no such drawee; or\n\n (2) . . . passes a check . . . knowing that there are insufficient funds in or\n on deposit with that account for the payment of such check . . . in full\n . . . upon such funds then outstanding, or that there is no such account\n or no drawee and fails to pay the check . . . within ten days after\n receiving actual notice in writing that it has not been paid because of\n insufficient funds or credit with the drawee or because there is no such\n drawee.\n\n\n\n -3-\n\fNo party disputes that § 570.120.1 is overbroad, because § 570.120.1(2) allows for\na conviction without “a culpable mental state and reprehensible conduct.” Alonzo,\n821 F.3d at 958 (8th Cir. 2016). Therefore, we cannot apply the categorical approach.\n\n But this analysis is not dispositive. Some overbroad statutes define “multiple\ncrimes” and so are “divisible.” Mathis, 136 S. Ct. at 2249. Where a statute is\ndivisible, we apply the modified categorical approach to determine whether a\ndefendant was convicted pursuant to a “discrete subsection” of the overbroad statute\ndefining a separate crime that “necessarily involved . . . facts equating to” the\ndefinition of a CIMT. See Alonzo, 821 F.3d at 960, 963 (quoting Moncrieffe, 569\nU.S. at 190). If so, the crime of conviction still qualifies as a CIMT. See Id. at 962.\n\n Thus, whether we can apply the modified categorical approach hinges on\nwhether § 570.120.1 is divisible. See United States v. Lamb, 847 F.3d 928, 931 (8th\nCir. 2017), cert. denied, 138 S. Ct. 1438 (2018). Section 570.120.1 is divisible only\nif it “effectively creates several different . . . crimes,” Descamps v. United States, 570\nU.S. 254, 264 (2013) (internal quotation marks omitted), by listing alternative\nelements, not means, Mathis, 136 S. Ct. at 2254-55. Elements are “the things the\nprosecution must prove to sustain a conviction.” Id. at 2248 (internal quotation marks\nomitted). Means or “brute facts” are “[h]ow a given defendant actually perpetrated\nthe crime.” Id. at 2251. To distinguish between elements and means, we may\nconsider “authoritative sources of state law” and the statute’s text. Id. at 2256. If\nnecessary, we may also “peek” at the record of the prior conviction, but only to\ndetermine if the statutory alternatives are elements or means. Id. at 2257.\n\n Here, we conclude that § 570.120.1 lists alternative elements and so is\ndivisible. The text contains two subsections that “set forth alternative ways in which\none may violate the statute.” See Alonzo, 821 F.3d at 962 (“The hallmark of\ndivisibility is the enumeration of alternative bases for conviction separated by the\ndisjunctive ‘or.’”). Missouri state court decisions treat § 570.120.1’s alternative\n\n -4-\n\fparagraphs (1) and (2) as creating independent offenses that are charged separately.\nSee State v. Carroll, 41 S.W.3d 878, 882 (Mo. 2001) (en banc) (finding that “[u]nder\nsection 570.120.1(1)” the “crime of passing a bad check is proven by evidence\nestablishing that an accused passed a check with the purpose to defraud, knowing it\nwould not be paid by the drawee” and that “the evidence is sufficient to establish\nthose elements” (emphasis added)); State v. Williams, 469 S.W.3d 6, 9 (Mo. Ct. App.\n2015) (“By electing to charge Defendant with a violation of § 570.120.1(2), one of\nthe elements that the State had the burden to prove was that Defendant failed to pay\nthe check ‘within ten days . . . .’” (emphasis added)). These state court decisions\nmatch the approved jury instructions enacted by the Missouri Supreme Court, which\nestablish that § 570.120.1 contains multiple possible offenses with distinct elements\nthat the “prosecution must prove to sustain a conviction.” Mathis, 136 S. Ct. at 2256.\nThree instructions apply to § 570.120.1(1) (all containing “purpose to defraud” as an\nelement) and one instruction applies to § 570.120.1(2) (entitled “Ten Day Notice” and\ncontaining no “purpose to defraud” element). See MAI-CR 3d 324.30.1-4.\n\n In sum, the text of the statute and Missouri state court authority establish that\n§ 570.120.1(2) is a distinct crime from § 570.120.1(1), which necessarily includes\n“purpose to defraud” as an element, see Carroll, 41 S.W.3d at 882, and so is\ncategorically a CIMT, see Bobadilla, 679 F.3d at 1057.\n\n Applying the modified categorical approach, we may look “to a limited class\nof documents (for example, the indictment, jury instructions, or plea agreement and\ncolloquy) to determine what crime, with what elements, a defendant was convicted\nof.” Mathis, 136 S. Ct. at 2249. Here, the record shows that Dolic pleaded guilty to\nfour charges of passing a bad check pursuant to § 570.120, without specifying a\nsubparagraph. But each of her charging documents contains language that tracks the\nlanguage of § 570.120.1(1) and includes the element “with the purpose to defraud.”\n\n\n\n\n -5-\n\fTherefore, we conclude that § 570.120.1(1) was in fact Dolic’s crime of conviction\nin each instance.\n\n Because Dolic’s four Missouri convictions for passing a bad check qualify as\ncrimes involving moral turpitude, we need not consider whether her convictions\npursuant to Mo. Rev. Stat § 570.080 also qualify.\n\n We deny Dolic’s petition.\n\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369267/", "author_raw": "GRUENDER, Circuit Judge."}]}	GRUENDER	WOLLMAN	SHEPHERD	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592014/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,087		United States v. Michael Johnson	2019-02-22	17-2572	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before COLLOTON, BEAM, and GRASZ, Circuit Judges.", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2572\n ___________________________\n\n United States of America,\n\n lllllllllllllllllllllPlaintiff - Appellee,\n\n v.\n\n Michael Johnson,\n\n lllllllllllllllllllllDefendant - Appellant.\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: September 25, 2018\n Filed: February 22, 2019\n ____________\n\nBefore COLLOTON, BEAM, and GRASZ, Circuit Judges.\n ____________\n\nCOLLOTON, Circuit Judge.\n\n Michael Johnson pleaded guilty in 2016 to possession with intent to distribute\ncocaine base. Police arrested Johnson after a traffic stop and found him in possession\nof two baggies that contained rocks of crack cocaine. A search of Johnson’s pocket\ndiscovered 22.9 grams of cocaine base and $895 in cash.\n\n At sentencing, the district court1 calculated an advisory guideline range of 57\nto 71 months’ imprisonment, but concluded that several factors justified an upward\nvariance from the advisory range and imposed a sentence of 204 months. In\nannouncing the sentence, the district court explained that the advisory guidelines\nwere “way insufficient in this case,” because “[t]hey’re not even close to addressing\n[Johnson’s] criminal history, the nature of this crime, the need to protect the public,”\nand “[t]he need for deterrence.”\n\n Johnson appeals first on procedural grounds. He argues that the district court\ncommitted procedural error by sentencing him according to a supposedly inflexible\n“stair-step” rule, under which “you don’t get less time the more crimes you commit.”\nJohnson perceives a “categorical rule” in which a federal sentence must always be\nlonger than a previous term of incarceration, and complains that the district court\nfocused on this rule to the exclusion of other factors under 18 U.S.C. § 3553(a).\n\n The court’s full comment was this: “You know, my position is you don’t get\nless time the more crimes you commit for deterrence to take effect.” The need for a\nsentence to afford adequate deterrence is a proper consideration under\n§ 3553(a)(2)(B), and the district court’s attention to the need for specific deterrence\nin this case was neither impermissible nor inflexible. See United States v. Stone, 873\nF.3d 648, 649 (8th Cir. 2017) (per curiam). Johnson’s contention that the district\ncourt ignored the other § 3553(a) factors is not supported by the record. The court\ndiscussed the guideline calculation, the serious nature of Johnson’s offense,\nJohnson’s criminal history and characteristics, the need to protect the public, and the\nneed to accomplish specific deterrence, ultimately concluding that an upward\nvariance to 204 months was appropriate. Johnson’s real complaint seems to be that\nthe court evaluated one or more factors differently than Johnson would have liked on\n\n\n 1\n The Honorable Greg Kays, Chief Judge, United States District Court for the\nWestern District of Missouri.\n\n -2-\n\nthe facts of this case. We see no procedural error in the court’s consideration of the\n§ 3553(a) factors.\n\n Johnson also contends that his sentence is substantively unreasonable. He\nasserts that a 204-month sentence is excessive in light of his advisory guideline range\nof 57 to 71 months. He complains that the district court placed undue weight on his\ncriminal history, particularly a 1977 second-degree murder conviction that did not\nreceive criminal history points under the guidelines. Johnson further contends that\nthe district court failed to give enough weight to the non-violent nature of his offense\nand the relatively small amount of cocaine in his possession. We review the\nsubstantive reasonableness of a sentence under a deferential abuse-of-discretion\nstandard. Gall v. United States, 552 U.S. 38, 51 (2007). We may consider the extent\nof any deviation from the guideline range, id. at 47, but Gall forbids requiring\nproportional justifications for variances from the range, and even extraordinary\nvariances do not require extraordinary circumstances. United States v. McGhee, 512\nF.3d 1050, 1052 (8th Cir. 2008) (per curiam).\n\n We conclude that the district court did not abuse its discretion. The district\ncourt has “wide latitude” to weigh the § 3553(a) factors in each case and to assign\nsome factors greater weight than others. United States v. Bridges, 569 F.3d 374, 379\n(8th Cir. 2009). For example, while Johnson views his offense of conviction as a\nnon-violent crime involving a small amount of cocaine, the court permissibly\nconsidered it a “serious crime” because “[c]rack cocaine is a plague on the\ncommunity.”\n\n The district court did focus on Johnson’s second-degree murder conviction,\ncalling it “the elephant in the room,” and remarking that “this is the lowest guideline\nrange I’ve seen on anybody with a murder conviction.” But that was not the only\nconsideration that supported the sentence imposed. The court also cited the serious\nnature of the underlying offense, Johnson’s 107 conduct violations while in prison,\n\n -3-\n\nJohnson’s many violations of release conditions during periods of correctional\nsupervision, prior convictions for offenses similar to the instant drug trafficking\noffense, a prior domestic assault conviction, the need to protect the public, and the\nneed to accomplish specific deterrence.\n\n Johnson’s criminal history was an appropriate factor to consider, see\n§ 3553(a)(1), and the district court may consider prior convictions that received no\ncriminal history points. United States v. Abrica-Sanchez, 808 F.3d 330, 335 (8th Cir.\n2015). The murder conviction was old but very serious, and the court was permitted\nto disagree with the advisory guidelines when they gave zero weight to this serious\naspect of Johnson’s criminal history. It was also reasonable for the court to view\nJohnson’s complete history as “a big problem.” Johnson was convicted of murder in\n1977 and eventually discharged from parole in October 1995, but he was promptly\nconvicted of conspiracy to distribute cocaine base in November 1995. That offense\nwas followed by a domestic assault in 2008, drug possession in 2009, parole\nviolations in 2011 and 2013 for drug trafficking and possession of drug\nparaphernalia, respectively, another drug paraphernalia conviction in 2014, and the\ninstant drug trafficking offense also in 2014.\n\n Viewing the record as a whole, the district court faced a defendant who had\ncommitted a serious drug offense after a lengthy and sustained criminal history that\nincluded a murder, a pattern of drug-related offenses, and a history of incorrigibility\nwhile on supervision. Giving “due deference to the district court’s decision that the\n§ 3553(a) factors, on a whole, justify the extent of the variance,” Gall, 552 U.S. at 51,\nwe conclude that there was no abuse of discretion in imposing a term of 204 months’\nimprisonment.\n\n Johnson insists that United States v. Martinez, 821 F.3d 984 (8th Cir. 2016),\ndictates reversal, but the circumstances in that case are distinguishable. In one of this\ncourt’s more aggressive applications of abuse-of-discretion review, a divided panel\n\n -4-\n\nheld that a variance from an advisory range of 121-151 months to 262 months for a\ndrug trafficking defendant was not permissible. In support of a variance, the\nsentencing court had cited the defendant’s prior convictions for unlawful discharge\nof a firearm and escape while under arrest on a felony charge, and photos and videos\nshowing his ties to gangs. This court reasoned that the guidelines already accounted\nfor the prior convictions, and that the evidence of gang ties did not show any violent\nbehavior, so the district court “gave undue weight to Martinez’s violent past to justify\nits extreme deviation from the guideline range.” Id. at 990. Here, of course,\nJohnson’s violent past involved murder, not discharge of a firearm and escape, and\nthe guidelines assessed no points for the murder conviction. The district court cited\nseveral other factors not present in Martinez that supported an upward variance.\nMartinez thus does not preclude the district court’s exercise of judgment in the\ndifferent circumstances presented here.\n\n The judgment of the district court is affirmed.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370340/", "author_raw": "COLLOTON, Circuit Judge."}, {"author": "GRASZ, Circuit Judge, concurring", "type": "concurrence", "text": "GRASZ, Circuit Judge, concurring.\n\n I concur in the opinion of the court as I conclude it is dictated by precedent.\nI write separately to express doubt about the soundness of its underpinnings. The\nfacts of the present case make this discussion more than academic, and thus my\nreason for addressing the matter at this time.\n\n After a traffic stop, Michael Johnson was found in possession of less than one\nthousand dollars’ worth of cocaine — a serious offense to be sure, and treated as such\nunder the Sentencing Guidelines. After he pled guilty, the Probation Office’s\npresentence investigation report did not identify any justification for varying outside\nthe sentence recommended by the Guidelines of 57–71 months of imprisonment, nor\ndid the Government seek an above-Guidelines sentence. Yet the district court\nsentenced Johnson to 204 months (17 years) of imprisonment, nearly three times the\n\n -5-\n\nmaximum sentence recommended by the Guidelines — and effectively a life sentence\nfor Johnson, then age 61. Perhaps reflecting these facts, the Government’s brief on\nappeal presents less than a whole-hearted defense of the sentence.\n\n While I believe the sentence here was excessive, I cannot conclude it is\nreversible error under the standard of review mandated by Supreme Court precedent.\nThis precedent makes the substantive reasonableness of a sentence nearly\nunassailable on appeal and renders the role of this court in that regard somewhat akin\nto a rubber stamp in all but the rarest cases. See United States v. Feemster, 572 F.3d\n455, 468 (8th Cir. 2009) (en banc) (Colloton, J., concurring) (“There must be at least\na ‘shocks the conscience’ sort of constraint on district judges.”); see also, e.g., United\nStates v. Kane, 639 F.3d 1121 (8th Cir. 2011) (finding one of those rare cases).\n\n For the benefit of anyone wondering how we got here (and not for those, such\nas the court, who know the tale all too well), the story begins with the Sentencing\nReform Act of 1984. In passing this law, “Congress’ basic goal . . . was to move the\nsentencing system in the direction of increased uniformity.” United States v. Booker,\n543 U.S. 220, 253 (2005). To achieve this goal, Congress required sentencing courts\nto impose sentences in accordance with the Guidelines, subject to the possibility of\ndepartures in a limited set of circumstances. See 18 U.S.C. § 3553(b)(1); Booker, 543\nU.S. at 233–34. It also required de novo review by appellate courts of “the district\ncourt’s application of the [G]uidelines to the facts” for sentences outside the\nGuidelines. 18 U.S.C. § 3742(e).\n\n In Booker, the Supreme Court held that fact finding by sentencing courts that\nwould increase an individual’s sentence under the mandatory Guidelines violated the\nSixth Amendment right to a jury trial. 543 U.S. at 226–44 (opinion for the Court by\nStevens, J.). But rather than requiring facts that would increase an individual’s\nsentence be proved at trial, a different majority in Booker opted to cure the\nconstitutional infirmity by rendering the Guidelines optional for sentencing courts\n\n -6-\n\nand by excising the statutory requirement of de novo review for non-Guidelines\nsentences.2 Id. at 244–68 (opinion for the Court by Breyer, J.).\n\n Shortly thereafter, in Gall v. United States, the Supreme Court took up the issue\nof appellate review of sentences in a post-Booker world. As Justice Alito noted in his\ndissent, Booker could be read so “that sentencing judges must still give the\nGuidelines’ policy decisions some significant weight and that the courts of appeals\nmust still police compliance” (what he called the “better reading” of Booker) or it\ncould be read “to mean that district judges, after giving the Guidelines a polite nod,\nmay then proceed essentially as if the Sentencing Reform Act had never been\nenacted.” Gall v. United States, 552 U.S. 38, 62 (2007) (Alito, J., dissenting). The\nSupreme Court in Gall adopted the latter approach, rejecting this court’s requirement\nthat departures from the Guidelines should have a proportional justification. See id.\nat 40–60. In a companion case, the Supreme Court also held that appellate courts\ncould not reverse sentences that departed from the Guidelines based on sentencing\ncourts’ policy disagreements with the Guidelines. See Kimbrough v. United States,\n552 U.S. 85, 101–05 (2007).\n\n So, what is left for appellate courts to review in terms of substantive\nreasonableness in sentencing when they cannot meaningfully police compliance with\nthe Guidelines? Of course, sentences must still comply with the sentencing factors\nin 18 U.S.C. § 3553(a), but these “sentencing factors . . . are so broad that they\n\n\n 2\n It is worth noting that the only factual dispute here — whether the cash found\non Johnson’s person constituted drug proceeds — was decided in his favor. Thus,\nthere can be no Sixth Amendment violation here. Yet we are still required to use\nBooker’s remedy of treating the Guidelines as merely advisory, even though Congress\nmade them mandatory. This case bears out the truth of Justice Thomas’s assessment\nthat “the remedial majority in Booker was mistaken to craft a remedy far broader than\nnecessary to correct constitutional error.” Kimbrough v. United States, 552 U.S. 85,\n114 (2007) (Thomas, J., dissenting).\n\n -7-\n\nimpose few real restraints on sentencing judges.” Gall, 552 U.S. at 63 (Alito, J.,\ndissenting). Thus, appellate review of substantive reasonableness is usually an\nexercise in futility.\n\n There is no doubt that maximizing sentencing court discretion has its benefits.\nSee, e.g., Kimbrough, 552 U.S. at 101–05 (allowing sentencing courts to depart based\non a disagreement with the Guidelines’ unjustified disparity in treatment of powder\nand crack cocaine). But the downside, in other contexts, is the resulting disparities\nand inconsistencies in sentencing. In the Sentencing Reform Act, Congress sought\nto reduce sentencing disparities by placing some limitations on the discretion of\nsentencing courts by means of the mandatory Guidelines. However, “[i]t is\nunrealistic to think [the goal of reducing sentencing disparities] can be achieved over\nthe long term if sentencing judges need only give lipservice to the Guidelines.” Gall,\n552 U.S. at 63 (Alito, J., dissenting). In reality, the result of Gall and Kimbrough is\nthat “district judges have regained most of the unconstrained discretion that Congress\neliminated in 1984.” Feemster, 572 F.3d at 470 (Colloton, J., concurring).\n\n In this case, the district court imposed a sentence nearly three times the\nGuidelines range. The sentence appeared to be generally driven by Johnson’s\ncriminal history and specifically driven by the fact that Johnson had committed a\nhomicide 40 years prior, a fact the district court described at the sentencing hearing\nas “the elephant in the room.” Because of the remoteness of this conviction, it\nreceived no criminal history points under the Guidelines — although even if it had\ncounted, the Guidelines range would still be nowhere near the 204-month sentence\nimposed. The court considered Johnson’s criminal history in the context of the need\nfor deterrence. See 18 U.S.C. § 3553(a)(2)(B). At the core of the district court’s\ndecision to dramatically deviate from the Guidelines appears to be a policy\ndisagreement with the Guidelines about the weight to afford prior convictions vis-a-\nvis the facts surrounding the current crime of conviction. The Guidelines accounted\nfor Johnson’s criminal history, but not to the district court’s satisfaction. Despite the\n\n -8-\n\nextreme deviation, I cannot say the district court gave improper weight to this factor\nin light of the approach dictated by Gall and Kimbrough.3\n\n The problem with this approach is that Johnson’s sentence depended largely\non the fortuity of having his case assigned to a judge who gave his criminal history\nfar more weight than given under the Guidelines. This is the type of sentencing\ndisparity Congress sought to reduce and avoid in the Sentencing Reform Act.\nHowever, because Supreme Court precedent requires us to affirm this approach, I\nconcur dubitante.\n ______________________________\n\n\n\n\n 3\n Under Kimbrough, it is not reversible error for the district court to follow its\nown preferred sentencing policy based on policy considerations, including\ndisagreements with the Guidelines. See Kimbrough, 552 U.S. at 101–05; see also\nSpears v. United States, 555 U.S. 261, 264 (2009). This raises the difficult but\npressing question of whether this circuit’s pre-Gall language describing abuse of\ndiscretion (in the context of the substantive reasonableness of sentences) as including\n“clear error of judgment” in weighing § 3553(a) factors is capable of being\nharmonized with Kimbrough and Gall. If variance from the Guidelines based on a\npolicy disagreement about how to weigh the sentencing factors in § 3553(a) is not an\nabuse of discretion, on what basis can we conclude that a sentencing court committed\na “clear error of judgment” in weighing these factors?\n\n -9-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370340/", "author_raw": "GRASZ, Circuit Judge, concurring"}]}	COLLOTON	BEAM	GRASZ	1	{"COLLOTON": ", Circuit", "BEAM": ", Circuit", "GRASZ": ", Circuit"}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593087/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,089		United States v. Anthony Brown	2019-02-22	18-1426	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1426\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\nAnthony Jovon Brown, also known as Anthony Brown\n\n lllllllllllllllllllllDefendant - Appellant\n ___________________________\n\n No. 18-1427\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\nAnthony Jovon Brown, also known as Anthony Brown\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeals from United States District Court\n for the Southern District of Iowa - Davenport\n ____________\n\n Submitted: January 14, 2019\n Filed: February 22, 2019\n [Published]\n\f ____________\n\nBefore GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Anthony Brown appeals his sentence of 120 months’ imprisonment for bank\nrobbery. He challenges the district court’s1 application of the crime of violence\nenhancement under the sentencing guidelines, contending that his Illinois attempted\nrobbery conviction does not qualify as a career offender predicate under the\nguidelines’s force clause. See U.S.S.G. § 4B1.2(a)(1). “We review de novo the\ndistrict court’s determination that a conviction constitutes a crime of violence.”\nUnited States v. Williams, 899 F.3d 659, 662 (8th Cir. 2018).\n\n We recently held that Illinois robbery is a “violent felony” under the force\nclause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(b).\nDembry v. United States, No. 17-2849, 2019 WL 436580, at *2-3 (8th Cir. Feb. 5,\n2019). “The relevant definition of a violent felony under the ACCA and the\ndefinition of a crime of violence under the guidelines are so similar that we generally\nconsider cases interpreting them interchangeably.” United States v. Sykes, 914 F.3d\n615, 620 (8th Cir. 2019) (internal quotation marks omitted). Applying this logic, we\nhold that Illinois robbery is a crime of violence under the guidelines. And because\nIllinois robbery is a crime of violence, so too is Illinois attempted robbery. See\nU.S.S.G. § 4B1.2(a)(1) n.1 (noting that a “crime of violence” includes attempts to\ncommit such an offense). This conclusion is consistent with Seventh Circuit\ndecisions, which have “repeatedly held that Illinois robbery is a crime of violence\n\n\n\n\n 1\n The Honorable John A. Jarvey, Chief Judge, United States District Court for\nthe Southern District of Iowa.\n\n -2-\n\funder the ‘force’ clause of § 4B1.2(a)(1).” United States v. Davis, 712 F. App’x 578,\n579 (7th Cir. 2018), cert. denied, 138 S. Ct. 2695 (2018).\n\n For these reasons, we affirm Brown’s sentence.\n ______________________________\n\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370342/", "author_raw": "PER CURIAM"}]}	GRUENDER	WOLLMAN	SHEPHERD	1	{"GRUENDER": ", Circuit", "WOLLMAN": ", Circuit", "SHEPHERD": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593089/	Published	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.