Weekly Case Digests August 24, 2020 August 28, 2020.

Byline: Derek Hawkins

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Yong Juan Zhao v. United States of America

Case No.: 19-3071

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

Focus: Damages

This is an appeal from a Federal Tort Claims Act judgment in favor of the plaintiff. When plaintiffYong Juan "Maggie" Zhao gave birth to her son "S.," he suffered an avoidable brachial plexus injury. The injury has severely and permanently impaired the function of his right arm. During her pregnancy and S.'s birth, Mrs. Zhao was attended by an obstetrician employed by a federally supported grant clinic in southern Illinois. Because he is considered an employee of the United States Public Health Service under 42 U.S.C. 233(g), Mrs. Zhao sued the United States for medical malpractice under the Federal Tort Claims Act. The court found after trial that the obstetrician had been negligent and awarded Mrs. Zhao, on behalf of S., $8.3 million. That sum included $2.6 million in lost earnings and $5.5 million in noneconomic damages.

On appeal, the United States does not contest liability or damages awarded for past and future medical expenses. The government appeals only the portions of the damages award that are inherently difficult to quantify. S. was not quite five years old at the time of trial. The United States argues first that the district court's calculation of S.'s future lost earnings was improperly speculative, given the uncertainties inherent in projecting a five-year-old's career opportunities. The question may have been difficult to answer, but we find no reversible error. The district court took a reasonable approach to estimate the lost earnings award based on data provided in expert testimony. The United States also challenges the award of noneconomic damages as arbitrary and excessive in comparison to similar cases. The district court could have provided a more detailed explanation of its comparative process, but we can follow the court's reasoning and find no reversible error in this portion of the judgment. We affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jacqueline Kennedy-Robey

Case No.: 19-2421

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

Focus: Sentencing Guidelines

Jacqueline Kennedy-Robey pleaded guilty to one count of mail fraud in violation of 18 U.S.C. 1341. The district court imposed an above-guidelines sentence. On appeal, Kennedy-Robey argues that the district court failed to consider either her mental health condition or the more lenient sentences received by defendants convicted of similar crimes. She also argues that the sentence was substantively unreasonable. We disagree and affirm the district court's judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: James Crawford v. Frank Littlejohn, Deputy Warden, Wabash Valley Correctional Facility

Case No.: 19-1949

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

Focus: Inmate Trust Fund Policy Unauthorized Financial Transactions - Reduction of Good Time Credit

A prison disciplinary board in Indiana concluded that James Crawford had participated in an "unauthorized financial transaction" by telling Scott Wolf, a fellow inmate, to send $400 to his mother, Becky Crawford. Wolf sent the check, which Becky Crawford cashed. Wolf told prison officials that the payment covered the cost of drugs that Crawford had supplied.

The prison's Code B-220 bans possessing materials for, or engaging in, "unauthorized financial transactions". (Language in Code B-220 has changed recently; we quote the rule in force at the time of the events.) Section IX of the Inmate Trust Fund Policy supplies this definition of unauthorized financial transactions: "attempting or completing financial transactions, including the sending of monies from one offender to another or the sending of monies from the family/friends of one offender to another." The prison penalized Crawford by the loss of 30 days' good-time credit. In this proceeding under 28 U.S.C. 2241 a district judge held that the penalty is not supported by evidence and directed Indiana to restore the 30-day credit.

Superintendent v. Hill, 472 U.S. 445 (1985), holds that a prison may discipline an inmate by reducing good-time credit unless the record is "devoid of evidence" (id. at 457). Elsewhere the Court stated the rule as a requirement that "some evidence in the record" (id. at 454) support the penalty. Indiana contends that "some evidence" supports the decisionthat, indeed, Wolf's remittance to Crawford's mother is undisputed. Only the reason for the payment was contested (Crawford asserts that it was for a car that Wolf's aunt and Wolf's daughter were buying), but the reason for the payment is not part of the offense defined by Code B-220.

Crawford contends that the reason must matter; otherwise why did the prison punish him rather than Wolf? That's a good question, but if we agree with Crawford that the reason matters, some evidence remains: Wolf said during a formal interview that he was paying Crawford for drugs by routing money to Crawford's mother, and the disciplinary board found that this is true. Wolf did not testify before the board, so his statements are hearsay, but hearsay is "some evidence". Hearsay is used in federal sentencing all the time. This is the sort of hearsaya statement against penal interestthat could have been admissible under Fed. R. Evid. 804(b)(3) in proceedings to which the Rules of Evidence apply.

For what it may be worth, we doubt that the state officials have misunderstood the prison's rules. The definition covers "attempting or completing financial transactions, including" three examples (emphasis added). The examples illustrate some applications. The judge did not explain why he read this definition to cover only the examples, as opposed to the full spectrum of "financial transactions" that the prison has not authorized.

Crawford says that the structure of this definitiona broad term ("financial transactions") followed by three non-exclusive examplesmakes it unconstitutionally vague. We do not agree. The phrase "financial transactions" is broad, but broad differs from inscrutable. The rule is sweeping, not vague. People of common understanding can see what is forbidden.

Reversed

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7th Circuit Court of Appeals

Case Name: Victoria Jeffords v. BP Products North America Inc., et al.,

Case No.: 19-1533

Officials: FLAUM, RIPPLE, and HAMILTON, Circuit Judges.

Focus: Negligence Claim Duty of Care

Donald Jeffords was a crane operator on a construction project at an oil refinery. One day at work he fell seven feet from the catwalk on the body of a crane and injured his feet and back. He sued the project owner and several of its contractors for negligence. While this lawsuit was pending, Jeffords died, apparently of unrelated causes, so the suit is now being prosecuted by his widow, Victoria Jeffords, as his estate's administrator. The district court granted the defendants' motions for summary judgment, finding that none of the defendants whom Jeffords sued owed him a duty of care. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Abdullah T. Alkhalidi v. Ron Neal

Case No.: 19-1378

Officials: WOOD, Chief Judge, and BAUER and BRENNAN, Circuit Judges.

Focus: Habeas Corpus

Abdullah Alkhalidi ("Alkhalidi") was convicted of murder, robbery, and theft. He appealed, claiming that his attorney failed to advise him of a plea offer. The Indiana state court denied relief, holding Alkhalidi's innocence claim strongly indicated he would not have accepted the plea deal. The state court also held that Indiana requires a defendant to admit a plea deal's factual basis otherwise the trial court would be prevented from entering the plea. Alkhalidi filed for habeas corpus relief and the district court denied the petition. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Justin Luft, et al., v. Tony Evers, Governor of Wisconsin, et al.,

Case No.: 16-3003; 16-3052

Officials: EASTERBROOK, KANNE, and SYKES, Circuit Judges.

Focus: Voting Rights Absentee & In-Person Voting One Location Rule

Change is a constant in Wisconsin's rules for holding elections. Two suits, which we have consolidated for decision on appeal, present challenges to more than a dozen provisions that have been enacted or amended since 2011. Although we have tried to treat similar legal questions together and otherwise simplify the exposition, a brief introduction may help the reader.

Wisconsin used to rely on special registration deputies, who registered voters at places such as high schools. Municipalities could require landlords to distribute registration forms to new tenants. The state replaced these mechanisms with an electronic registration system. 2011 Wis. Acts 23, 240; 2013 Wis. Act 76; 2015 Wis. Act 261. Persons who want to register now must send proof of residence in either electronic or hard-copy format. 2013 Wis. Act 182, as elaborated in a ruling by the Government Accountability Board. (The Board has since been replaced by the Wisconsin Elections Commission, whose members are defendants.) Students who want to prove residence using an educational institution's dormitory list may do so only if the list contains citizenship information. 2011 Wis. Act 23. And to vote for an office other than President or Vice President, voters must have been residents for at least 28 days (instead of 10 days, as before). Ibid.

Voters may cast absentee ballots. A ballot may be picked up in person, or the state will mail one, but email and fax can be used to obtain a ballot in only a few circumstances. 2011 Wis. Act 75. Wisconsin will reject or return an absentee ballot for spoilage, damage, or defective certification. 2011 Wis. Act 227. Such irregularities are visible without opening the ballot...