Weekly Case Digests April 22, 2019 April 26, 2019.

Byline: Rick Benedict

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Rafael Giovanni Herrera-Garcia, v. William P. Barr

Case No.: 18-1511; 18-3196

Officials: KANNE, ROVNER, and BARRETT, Circuit Judges.

Focus: Immigration Removal Order

Rafael Giovanni Herrera-Garcia seeks to avoid removal to El Salvador because he says that he will be tortured by gangs or corrupt government authorities if he is forced to return there. An immigration judge found that Herrera-Garcia had not shown that he, specifically, would be in danger and denied his request for relief. The judge also concluded that Herrera-Garcia had not established that the government would have inflicted or allowed the alleged torture. The Board adopted and affirmed that decision.

Because the administrative decisions are supported by substantial evidence in the record, we deny Herrera-Garcia's petition for review of these decisions. We also reject his second petition for review on the denial of his motion for reconsideration because we agree with the Board that it was untimely.

Petition Denied

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7th Circuit Court of Appeals

Case Name: Elena Hernandez v. Marque Medicos Fullerton, LLC

Case No.: 18-1789

Officials: WOOD, Chief Judge, and SYKES and SCUDDER, Circuit Judges.

Focus: Statutory Interpretation Illinois Worker's Compensation Act

When Elena Hernandez filed a voluntary Chapter 7 bankruptcy petition in December 2016, she reported one sizable asset: a pending workers' compensation claim valued at $31,000. To place that claim beyond the reach of creditors, she listed it as exempt under section 21 of the Illinois Workers' Compensation Act ("the Act"), 820 ILL. COMP. STAT. 305/21 (2011), applicable via 11 U.S.C. 522(b). Two days after filing for bankruptcy, Hernandez settled the claim.

We confront an important question of statutory interpretation: whether the Illinois Workers' Compensation Act, as amended, allows care-provider creditors to reach the proceeds of workers' compensation claims. Section 21 of the Act has been interpreted by bankruptcy courts to create an exemption for these assets. The 2005 amendments made several changes to the Illinois workers' compensation regime, imposing a new fee schedule and billing procedure for care providers seeking remuneration. Did those changes alter the scope of section 21?

The Illinois Supreme Court hasn't addressed the interplay between these competing components of state workers' compensation law. Without that controlling authority, we find ourselves genuinely uncertain about the correct interpretation. This state-law issue is dispositive, likely to recur, and implicates the effective administration of workers' compensation in Illinois. Therefore, we respectfully certify the question set forth in this opinion to the Illinois Supreme Court.

Question Certified

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7th Circuit Court of Appeals

Case Name: Ja'Lin Williams v. Norfolk Southern Corporation, et al.

Case No.: 18-2517

Officials: FLAUM, BARRETT, and SCUDDER, Circuit Judges.

Focus: Personal Injury Comparative Negligence

Ja'Lin Williams was struck by a train while he and his friends were running away from a police officer. He sued the railway, which he believed was at fault for his injuries. But the district court granted summary judgment to the railway, concluding that Williams was barred from recovery by Indiana law because he was more than 50% at fault for the accident. We agree and affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Donald Wanjiku

Case No.: 18-1973

Officials: ROVNER, SYKES, and BARRETT, Circuit Judges.

Focus: Warrantless Search

Donald Wanjiku pled guilty to one count of transportation of child pornography in violation of 18 U.S.C. 2252A, but he retained his right to appeal the district court's denial of his motion to suppress the primary evidence against him. That evidence included photographs and videos recovered from his cell phone, laptop and external hard drive during a warrantless border search at O'Hare International Airport. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Andres Garcia

Case No.: 18-1735

Officials: ROVNER, HAMILTON, and BRENNAN, Circuit Judges.

Focus: Sufficiency of Evidence

A jury found defendant-appellant Andres Garcia guilty of distributing cocaineactually distributing a kilogram of the stuffto co-defendant Alan Cisneros in violation of 21 US.C. 841. The government offered no direct evidence that Garcia possessed or controlled cocaine, drug paraphernalia, large quantities of cash, or other unexplained wealth. There was no admission of drug trafficking by Garcia, nor any testimony from witnesses (undercover agents, criminal confederates, innocent bystanders, or surveillance officers) that Garcia distributed cocaine. Instead, the government secured this verdict based upon a federal agent's opinion testimony purporting to interpret several cryptic intercepted phone calls between Garcia and Cisneros, a known drug dealer.

This case illustrates the role trial judges have in guarding the requirement of proof beyond a reasonable doubt in criminal cases. It also reminds us of the connection between the roles that judges play in criminal cases, requiring proof beyond a reasonable doubt, and in civil cases, where motions for summary judgment and for judgment as a matter of law require judges to evaluate the outer limits of reasonable inferences under the lower civil standard of proof by a preponderance of the evidence. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25253 (1986) (comparing civil summary judgment standards to criminal standard discussed in Jackson v. Virginia, 443 U.S. 307, 31819 (1979)). If the evidence would not allow a civil case to survive a motion for summary judgment or a directed verdict, then the case has no business being given to a jury in a criminal trial.

We assume the government's circumstantial evidence here might have supported a search warrant or perhaps a wiretap on Garcia's telephone. It simply was not sufficient to support a verdict of guilty beyond a reasonable doubt for distributing cocaine. We reverse the district court's decisions denying Garcia's motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and reverse his convictions for insufficient evidence.

Reversed

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7th Circuit Court of Appeals

Case Name: United States of America v. Geraldo Colon

Case No.: 18-1233

Officials: EASTERBROOK, BARRETT, and SCUDDER, Circuit Judges.

Focus: Sentencing Guidelines Enhancement

Geraldo Colon used his Indianapolis furniture store and a related business as a front to hide his more lucrative enterprise: buying large quantities of cocaine and heroin from Arizona and reselling the drugs to local dealers in Indiana. For his role as a middleman in this scheme, a grand jury charged Colon with drug conspiracy, money laundering, and making false statements in a bankruptcy proceeding. Following two jury trials, Colon was convicted on all counts and sentenced to 30 years' imprisonment.

Colon challenges his convictions for money laundering, arguing that the government's evidence was insufficient. He also contends that the district court committed error in calculating his advisory sentencing range by applying leadership enhancements under 3B1.1 of the Sentencing Guidelines. The leadership enhancement is inapplicable, as Colon sees the evidence, because, as an independent middleman, he did not oversee any participants. Neither challenge succeeds. We affirm Colon's money laundering convictions. And although we agree that the district court erred in applying leadership enhancements, a careful review of the sentencing transcript reveals that these errors were harmless.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals District I

Case Name: State of Wisconsin v. Daetrell Jamal Watson

Case No.: 2017AP2249-CR

Officials: Kessler, P.J., Brennan and Dugan, JJ.

Focus: Sentence Modification

Daetrell Jamal Watson appeals a judgment of conviction entered upon his guilty plea to one count of armed robbery as a party to a crime. He also appeals an order denying postconviction relief. He contends that disparate sentences imposed on his codefendants warrant modification of the twenty-two-year term of imprisonment imposed on him. We reject his arguments and affirm.

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WI Court of Appeals District III

Case Name: State of Wisconsin v. Marshawn Terell Johnson

Case No.: 2017AP2445-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion Sentencing

Marshawn Johnson appeals a judgment of conviction for possession with intent to deliver heroin and an order denying his motion for postconviction relief. He contends the circuit court erroneously exercised its sentencing discretion because the court based its sentence in part on the fact that Johnson was from Chicago, Illinois, and had traveled to Superior, Wisconsin, to commit his crime. Johnson contends such a consideration violated the Privileges and Immunities Clause of the United States Constitution. See U.S. CONST. art. IV, 2, cl. 1. We reject this argument because the record shows Johnson was not sentenced because he was from Chicago, but rather because he had brought heroin from another area to be distributed locally. We conclude such a consideration did not violate the Privileges and Immunities Clause, and we affirm.

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WI Court of Appeals District III

Case Name: Emer's Camper Corral, LLC v. Michael A. Alderman, Inc., et al.

Case No.: 2018AP458

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Insurance Claim Negligence

Emer's Camper Corral, LLC, ("Camper Corral") sued Michael Alderman and Alderman, Inc. d/b/a Jensen-Sundquist Insurance Agency (collectively, "Alderman"), asserting a single claim for negligence. Specifically, Camper Corral alleged that Alderman breached his...