Weekly Case Digests September 14, 2020 September 18, 2020.

Byline: Derek Hawkins

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Nathaniel Ruth

Case No.: 20-1034

Officials: SYKES, Chief Judge, and BAUER and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines Resentencing

In what is becoming an all-too-familiar subject, this appeal raises a question about whether a state drug statute sweeps more broadly than its federal counterpart because the former includes a particular isomer of a substance that the latter does not. Nathaniel Ruth pleaded guilty to federal gun and drug charges and received an enhanced sentence due to his prior Illinois conviction for possession with intent to deliver cocaine. The Illinois statute defines cocaine to include its positional isomers, whereas the federal definition covers only cocaine's optical and geometric isomers. Ruth now appeals and claims that the district court erred in sentencing him because, using the categorical approach, the overbreadth of the Illinois statute disqualifies his prior conviction as a predicate felony drug offense. We agree and therefore vacate Ruth's sentence and remand for resentencing.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Daniel Sarauer, et al., v. International Association of Machinists, et al.,

Case No.: 19-3142

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

Focus: Subject-matter Jurisdiction Collective Bargaining Agreement

Private labor relations in this country are governed almost exclusively by federal law. This case is about the "almost." Under federal law, unions and employers may enter into collective bargaining agreements with "union security" clauses, which require employees either to become union members after being hired or, if they do not join, to pay fees to the union for representing them, as federal law requires of the union. Congress has allowed states to take a different view of such clauses, however. More than half the states today have "right to work" laws prohibiting unions and employers from entering into union security agreements.

Wisconsin's Act 1 enacted in 2015 is a right-to-work law. Plaintiffs are ten Wisconsin employees who contend that Act 1 invalidated the union security clause in the 20152018 collective bargaining agreement between their employer and their bargaining unit's union, both defendants here. Plaintiffs filed this suit in a Wisconsin state court, and defendants removed to federal district court. The district court held that removal was proper because the case arises under federal law, not state law. The court then held as a matter of federal law that defendants' collective bargaining agreement was formed before Act 1 took effect so that plaintiffs are not entitled to relief. The court granted summary judgment for the defense. We affirm as to both jurisdiction and the merits.

Affirmed

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7th Circuit Court of Appeals

Case Name: Angela Tonyan v. Dunham's Athleisure Corporation

Case No.: 19-2939

Officials: EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.

Focus: ADA Violation Disparate Treatment Claim

Angela Tonyan worked as a store manager at Dunham's Athleisure Corporation (Dunham's) when she suffered a series of injuries, requiring multiple surgeries and temporary restrictions to her shoulder, arm, and hand movement. After her doctor imposed permanent restrictions, including one preventing her from lifting more than two pounds with her right arm, Dunham's fired her.

Dunham's asserts, because of its lean staffing model, that store managers must perform various forms of physical labor, such as unloading and shelving merchandise, as essential functions of their job duties. Tonyan, on the other hand, argues that physical tasks were not essential functions of her job and that, in any event, she was able to perform her job's essential functions.

We conclude that physical tasks were essential functions of Tonyan's job. As a result, in light of the severe restrictions on her movement, no reasonable factfinder could determine that Tonyan was capable of performing the essential functions of her position. We therefore affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Finas J. Glenn

Case No.: 19-2802

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

Focus: Probable Cause Suppression of Evidence

Police investigating drug trafficking in Vermilion County, Illinois, sent an informant to buy two ounces of cocaine at the home of Finas Glenn. The transaction was recorded on audio and video. About a month later the police asked for a warrant to search Glenn's home. A state judge put agent Pat Alblinger under oath, took his testimony (which was recorded), and issued a warrant. A search turned up cocaine and guns. Indicted on drug and weapons charges, Glenn moved to suppress the evidence seized in the search. A district judge held a hearing and concluded that the warrant was supported by probable cause. 2019 U.S. Dist. LEXIS 89507 (C.D. Ill. May 29, 2019). Glenn then pleaded guilty to one firearms charge, see 18 U.S.C. 922(g)(1), and the prosecutor dismissed the remaining counts. The plea reserved Glenn's right to contest on appeal the denial of his motion to suppress. See Fed. R. Crim. P. 11(a)(2). The judge sentenced Glenn to 102 months' imprisonment.

A judge in a criminal prosecution must afford "great deference" to the probable-cause finding by the judge who issued a warrant. See Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. McIntire, 516 F.3d 576 (7th Cir. 2008). That norm is as applicable to warrants based on live testimony as it is to warrants based on affidavits. See United States v. Patton, 962 F.3d 972 (7th Cir. 2020). This warrant rests on the "controlled buy" plus Alblinger's testimony that the informant had for more than a decade provided reliable information. Glenn contends that this is not enough to show probable cause, because Alblinger did not tell the state judge whether agents had searched the informant before the transaction, that the informant had a long criminal record and was cooperating to earn lenience, and that the informant's record of providing accurate information was with the local police as a whole rather than with Alblinger personally. Like the district judge, we think these omissions unfortunate. But they do not negate probable cause, when, as Gates requires, the evidence is viewed as a whole and the federal court gives the state judge great deference.

The principal reason to search an informant before a controlled buy is to make sure that he does not try to trick the investigators by providing the drugs himself and then asserting that he bought them from the target. It is possible that some sleight of hand might be practiced even when a transaction is recorded, but the audio and visual record of this transaction would have allowed a conviction beyond a reasonable doubt. Probable cause is a lower standard. The Fourth Amendment does not require best practices in criminal investigations. That the agents could have managed this controlled buy to provide an even higher level of confidence does not imply that probable cause is missing.

Given the audio and video evidence of the controlled buy, the informant's reliability and motivations are not material to the existence of probable cause. Gates observed that these considerations can be important to the total mix of information, which is why police do well to provide details to the judge asked to issue a warrant, but the omissions do not detract from the powerful audio and video evidence. Glenn contends that the evidence provided by the controlled buy was stale by the time the agents searched his house. Yet the passage of time does not necessarily imply that a retail site for drug sales has ceased to be so. See United States v. Lamon, 930 F.2d 1183, 118788 (7th Cir. 1991). If the house had been sold in the interim, or if there were some reason to think that Glenn had changed his line of business, then the passage of time would provide reason to doubt the inference that a place used to distribute drugs in the recent past is still used for that purpose. But there is no such evidence. To the contrary, in an interview shortly before agent Alblinger applied for the warrant, Glenn conceded that he sold cocaine from his homeand although Glenn said that he sold only "small quantities," retail drug sales are retail drug sales. Alblinger did not present this confession to the state judge, so it does not factor into the finding of probable cause, but it negates any possibility that Alblinger knew that the information after the controlled buy implied that Glenn's house no longer contained cocaine. Alblinger told the federal court that the delay was designed to prevent Glenn from inferring the informant's identity. That's a good reason to wait, and Glenn was not injured by the delay.

Affirmed

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7th Circuit Court of Appeals

Case Name: Central States, Southeast and Southwest Areas Health and Welfare Fund, et al., v. Shelby L. Haynes, et al.,

Case No.: 19-2589

Officials: BAUER, EASTERBROOK, and WOOD, Circuit Judges.

Focus: ERISA Repayment Clause Covered Dependent

Doctors removed Shelby Haynes's gallbladder in 2013. She was injured in the process and required additional surgery that led to more than $300,000 in medical expenses. Her father's medical-benefits plan (the Fund) paid these because Haynes was a "covered dependent". The plan includes typical subrogation and re payment clauses: on recovering anything from third parties, a covered person must reimburse the Fund. In 2017 Haynes settled a tort suit against the hospital, and others, for $1.5 million. But she and her lawyers refused to repay the Fund, which brought this action to enforce the plan's terms under 502(a)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1132(a)(3).

Haynes concedes that the Fund paid...