Weekly Case Digests January 4, 2019 January 11, 2019.

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Michael T. Bostock

Case No.: 18-1897

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

Focus: Sentencing Guidelines

Michael Bostock pleaded guilty to distributing methamphetamine and has been sentenced to 125 months' imprisonment, which he contends is unreasonably high. The statute that forbids sales of this drug distinguishes by its purity. For example, for the purpose of selling minimum and maximum sentences, "50 grams or more of methamphetamine" is treated the same as "500 grams or more of a mixture or substance containing a detectable amount of methamphetamine". 21 U.S.C. 841(b)(1)(A)(viii). The Sentencing Guidelines reflect this classification. The drug quantity table, U.S.S.G. 2D1.1(c), distinguishes among "Methamphetamine", "Methamphetamine (actual)", and "Ice". Note (A) to this table says that "methamphetamine" is the weight of any mixture or substance containing a detectable amount of the controlled substance; Note (B) defines the "actual" variant as the weight of the controlled substance disregarding any contaminants or cutting agents; Note (C) defines "ice" as the weight of "a mixture or substance containing d-methamphetamine hydrochloride of at least 80% purity." The Guidelines treat the "actual" and "ice" variants as ten times the weight of the detectable-quality variant. So, for example, 2D1.1(c)(5) provides that 500 grams to 1.49 kilograms of methamphetamine, 50 to 149 grams of methamphetamine (actual), and 50 to 149 grams of ice all produce an offense level of 30. Bostock, who concedes distributing 63.8 grams of ice, falls into this category. Given his criminal history category, the Guidelines recommended a sentence in the range of 130 to 162 months' imprisonment.

It is not necessary to go through Bostock's objections to the judge's other statements. The bottom line is that she stuck with the distinction between "methamphetamine" and "ice," as she was entitled to do. She gave Bostock an individualized sentence that depended substantially on his criminal history category of VIthe judge found him undeterrable, with crimes increasing in gravity after each release from prisonand the need to protect the community from high quality methamphetamine made in industrial laboratories in other places, which had become a plague after police managed to shut down most of the local manufacturers. Bostock should count himself fortunate, given the judge's observations, that his sentence is below rather than above the range recommended by the Sentencing Commission.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Thomas C. Balsiger

Case No.: 17-1708

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

Focus: Sufficiency of Evidence

For his role in designing and implementing a scheme to defraud manufacturers that issue coupons for consumer products, a grand jury charged El Paso businessman Thomas Balsiger with 25 counts of wire fraud and conspiracy both to commit wire fraud and obstruct justice. A decade of litigation followed, culminating in a bench trial at which Balsiger represented himself with the assistance of stand-by counsel. The district court convicted Balsiger on 12 counts and sentenced him to 120 months' imprisonment.

On appeal Balsiger argues the district court deprived him of his Sixth Amendment right to retain the counsel of his choice by failing to grant an 18-month continuance and by refusing to order the government to remove a so-called lis pendens on his homea notice to potential buyers that title to the property might be impaired by the outcome of his criminal prosecution. He also contends the district court erred when, following the death of his attorney, it concluded he waived his right to counsel and required him, over his objection, to proceed pro se. Finally, Balsiger challenges the sufficiency of the evidence, venue, and several of the district court's sentencing determinations. With the limited exception of the district court's calculation of forfeiture, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: H.P. v. Naperville Community Unit School District # 203

Case No.: 18-2272

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges.

Focus: ADA Violation

The plaintiffH.P., a minor, through her father W.P., claims that the defendant Naperville Community Unit School District #203 violated H.P.'s rights under the Americans with Disabilities Act and the Rehabilitation Act by disallowing H.P. from completing high school in District #203 after she moved to another school district. In the case below, the district court granted summary judgment to the District and denied it to H.P. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Khalid Hamdan

Case No.: 18-1327

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

Focus: Abuse of Discretion Evidentiary Ruling

Khalid Hamdan appeals his 2014 conviction on three counts related to his activities involving XLR-11, a Schedule I synthetic cannabinoid used to make the street drug "spice." On appeal, Hamdan argues the district court abused its discretion by granting the government's motion to quash Hamdan's subpoenas of two Wisconsin state troopers. The troopers previously arrested and questioned Hamdan after a 2012 traffic stop where Hamdan possessed a different synthetic cannabinoid. According to Hamdan, this evidence would have supported his defense that he honestly believed synthetic cannabinoids were legal substances and he therefore lacked the requisite mens rea to commit the alleged crimes. Hamdan similarly argues that the district court abused its discretion in failing to grant his motion for a new trial because the district court's evidentiary rulings jeopardized his right to present his theory of defense. Because the district court did not abuse its discretion, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Justin Kohl

Case No.: 18-2548

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines

Justin Kohl was convicted of three federal controlled substance offenses. At sentencing, the district court assigned Kohl criminal history category IV. The district court included one criminal history point for a 2016 conviction in Wisconsin for operating a vehicle with a detectable amount of a restricted controlled substance in his blood. Kohl argues that the district court erred by including the 2016 conviction because a first violation of the Wisconsin statute at issue does not carry a criminal penalty and should not have been counted. We disagree with Kohl's interpretation of the Sentencing Guidelines and affirm the district court's sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Rhonda Kemper v. Deutsche Bank AG

Case No.: 18-1031

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

Focus: Anti-Terrorism Act

On May 16, 2009, U.S. Army Specialist David Schaefer, Jr., was killed by a roadside bomb while serving a tour of duty in Iraq. This litigation represents his mother's attempt to hold someone responsible for the senseless loss of her son. It is easy to understand why she wishes to do so. But not everything is redressable in a court. Terrorist attacks such as the one that took Spc. Schaefer's life often elude the conventional judicial system. Those directly responsible may be beyond the reach of the court, because they are unidentifiable, or because they are beyond the reach of the court's personal jurisdiction, or because they themselves have come to a violent end. Secondary actors, such as the organizations that fund the terrorists, are often amorphous and difficult to hale into court. Finally, despite Congress's effort to make state sponsors of terrorism accountable in U.S. courts, see 28 U.S.C. 1605A, any resulting judgment may be uncollectible. See, e.g., Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018).

Rhonda Kemper attempted to get around these formidable obstacles by alleging that the bomb that killed her son was a signature Iranian weapon that traveled from the Iranian Revolutionary Guard Corps ("the Guard") to Hezbollah to Iraqi militias, who then placed it in the ground in Basra, Iraq, where it killed Spc. Schaefer. Kemper asserts that Deutsche Bank AG, a German entity with U.S. affiliates, is responsible for her son's death under the Anti-Terrorism Act ("ATA"), 18 U.S.C. 2333. She ties Deutsche Bank to the fatal bomb through the Bank's alleged membership in an Iranian conspiracy to commit acts of terror. It joined that conspiracy, she contends, when it instituted procedures to evade U.S. sanctions and facilitate Iranian banking transactions.

The district court found that Kemper failed to plead facts that plausibly indicated that Deutsche Bank's actions caused her son's death. It thus dismissed her complaint for failure to state a claim. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Andrea Hirst, et al. v. SkyWest, Inc., et al.

Case No.: 17-3643; 17-3660

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

Focus: Fair Labor Standards Act Violation Dormant Commerce Clause

In this case, a number of current and former flight attendants challenge an airline's compensation policy of paying for their work in the air but not on the ground. Plaintiffs-appellants ("the Flight Attendants") all work or worked for defendant-appellee SkyWest Airlines, Inc., an airline owned by co-defendant-appellee SkyWest, Inc. (collectively "SkyWest"). The Flight Attendants filed suit alleging violations of the Fair Labor Standards Act, 29 U.S.C. 201 et seq. ("FLSA"), and various state and local wage laws, seeking to certify a class of similarly situated SkyWest employees. The district...