Weekly Case Digests September 20, 2021 September 24, 2021.

Byline: Derek Hawkins

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Nadia Bohdanivna Chuchman v. Merrick B. Garland

Case No.: 20-3205

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

Focus: Immigration Asylum

Nadiia Chuchman, a citizen of Ukraine, appeals the denial of her application for asylum based on political opinion. She maintains that the Ukrainian government persecuted her nearly a decade ago for her political activity in opposing the former president. She primarily argues that the Immigration Judge and the Board of Immigration Appeals erred in finding that she had not experienced past persecution after government actors beat her severely, detained her for a day, and pressured her university's dean to expel her if she remained politically active. She also maintains that they ignored evidence of ongoing corruption in Ukraine when finding that her political party's rise to power meant she was unlikely to be persecuted in the future. Because substantial evidence supports the Board's conclusion that Chuchman's experience in Ukraine did not rise to the level of persecution, and because she failed to present compelling evidence that the new Ukrainian government would persecute her if she returned, we deny the petition for review.

Petition denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Michael Coscia

Case No.: 19-2010; 20-1032

Officials: EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.

Focus: Abuse of Discretion Newly Discovered Evidence

A jury convicted Michael Coscia of six counts of commodities fraud, in violation of 18 U.S.C. 1348, and six counts of spoofing, in violation of 7 U.S.C. 6c(a)(5)(C) and 13(a)(2). On direct appeal, we affirmed his conviction. We now have before us the appeals of two proceedings that Mr. Coscia initiated after we resolved his direct appeal. The first is a motion for a new trial on the basis of new evidence in which he alleges (1) that data discovered after trial establishes that there were errors in the data presented to the jury and (2) that subsequent indictments against other traders for similar spoofing activities undercut the Government's characterization of Mr. Coscia as "unique" or a trading "outlier." The second proceeding is a motion to vacate his conviction pursuant to 28 U.S.C. 2255, in which Mr. Coscia claims that his trial counsel, Sullivan & Cromwell LLP, provided ineffective assistance of counsel. Specifically, he alleges that Sullivan & Cromwell had an undisclosed conflict of interest with several of the Government's witnesses and that this conflict adversely affected counsel's performance. He also alleges that, even if there was no conflict of interest, his trial counsel nevertheless provided constitutionally deficient representation.

The district court denied both motions, and Mr. Coscia now appeals. He submits that the district court abused its discretion when it denied his new trial motion. In his view, the newly discovered evidence demonstrated that key evidence relied on by the Government to establish his intent to spoof was false and inaccurate. As for his habeas motion, he contends that the district court correctly found that counsel had a conflict of interest, but incorrectly concluded that there was no adverse effect on counsel's performance. He further submits that the district court erred in rejecting his argument that, even in the absence of a conflict of interest, his defense counsel's performance was constitutionally deficient. In the alternative, Mr. Coscia requests further discovery and an evidentiary hearing on his ineffective assistance of counsel claims.

We now affirm the district court's judgments on both the new trial and 2255 motions. We conclude that the district court did not abuse its discretion in denying Mr. Coscia's motion for a new trial on newly discovered evidence grounds. We further conclude that the district court correctly determined that Mr. Coscia failed to demonstrate an adverse effect or prejudice in either of his ineffective assistance of counsel claims.

Affirmed

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7th Circuit Court of Appeals

Case Name: Damon Goodloe v. Christine Brannon

Case No.: 18-2908

Officials: FLAUM, ROVNER, and WOOD, Circuit Judges.

Focus: Habeas Relief 6th Amendment Violation Confrontation Clause

An Illinois jury convicted Damon Goodloe of first-degree murder in the death of Pierre Jones. After losing his direct appeal and all post-conviction proceedings available in state court, Goodloe petitioned for a writ of habeas corpus in federal court under 28 U.S.C. 2254. After the district court denied relief on all of his claims, this court granted a certificate of appealability on his claim that evidence was admitted at his trial in violation of the Confrontation Clause. We later expanded that certificate to include his assertion that his trial counsel provided ineffective assistance. We now affirm the district court's denial of habeas relief.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Oscar Calan-Montiel

Case No.: 20-2082

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

Focus: Immigration Removal Order

Oscar Calan-Montiel, a citizen of Mexico, entered the United States without color of legal right to be here. He was caught in 2010 and ordered removed. Federal authorities returned him to Mexico in 2012. He came back, again evading inspection at the border, and was caught again in 2019. This time he was prosecuted under 8 U.S.C. 1326, a statute that applies to aliens who reenter the United States, without permission, after a removal order. He pleaded guilty and was sentenced to about 16 months in prison. The plea reserved the right to argue on appeal that his first removal was unlawful and that the criminal prosecution should have been dismissed.

According to Calan-Montiel, the agency never furnished him with a date for his removal hearing. We know that he did not attend and was ordered removed in his absence. That might be because a notice was not sent, because Calan-Montiel had not kept his address up to date, because a correctly addressed notice miscarried in the mails, or because Calan-Montiel decided that he lacked a defense to removal and so did not think attendance worthwhile. We need not determine which of these possibilities occurred, for Calan-Montiel does not deny that he had actual knowledge of the removal order. He could have asked the agency to reopen the proceedings, see 8 U.S.C. 1229a(b)(5)(C)(ii), but did not. He could have made that request even after being returned to Mexico. He could have sought judicial review before or after his removal. But he did not do that either. Instead he returned by stealth. That strategy makes it impossible to satisfy 1326(d), even if the agency erred in failing to send a proper notice of the hearing's date. See United States v. Hernandez-Perdomo, 948 F.3d 807 (7th Cir. 2020).

Affirmed

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7th Circuit Court of Appeals

Case Name: Sally Gaetjens v. City of Loves Park, et al.,

Case No.: 20-1295

Officials: KANNE, SCUDDER, and KIRSCH, Circuit Judges.

Focus: 4th Amendment Violation Unlawful Seizure

PlaintiffSally Gaetjens sued various local government officials for entering and condemning her home and confiscating her thirty-seven cats, all without a warrant. She's right that the Fourth Amendment would usually prohibit such conduct. But emergencies breed exceptionsand this case is littered with emergencies.

Namely, Gaetjens went missing in action, and Defendants had reason to believe that she was experiencing a medical emergency. Plus, when Defendants attempted to check her home, they deemed it so noxious that it posed a public-safety risk. Given these exigencies, the Fourth Amendment did not require Defendants to wait for judicial approval before acting. We thus affirm the decision of the district court granting summary judgment to Defendants.

Affirmed

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7th Circuit Court of Appeals

Case Name: Mike Butler v. Kilolo Kijakazi

Case No.: 20-3187

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

Focus: ALJ Review Disability Benefits

Mike Butler sought disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. 401433, and that claim for benefits was denied by the Administrative Law Judge (ALJ) following a hearing. The Appeals Council declined to review the denial, and therefore the decision of the ALJ is the final decision for purposes of our review. Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2010); 20 C.F.R. 404.955, 404.981. Butler now challenges the ALJ's determination that he was capable of doing light work with some restrictions, and that a sufficient number of such jobs existed that he could perform. The relevant time period at issue is from the alleged date of disability, November 4, 2015, through the ALJ's decision on April 19, 2018.

We review de novo the district court's affirmance of the ALJ's decision and review directly the decision of the ALJ. Id. The ALJ's decision will be affirmed if it was supported by substantial evidence, which is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id., quoting Yurt v. Colvin, 758 F.3d 850, 856 (7th Cir. 2014). "An ALJ need not specifically address every piece of evidence, but must provide a 'logical bridge' between the evidence and his conclusions." Id., quoting O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010).

On appeal, Butler argues that the ALJ failed to properly apply the grids in denying benefits. He alleges that in determining that Butler could perform three occupations with 136,000 jobs, the ALJ failed to consider that Butler had the additional adverse vocational factor of being a person closely approaching advanced age, in that he was between the ages of 5054. But that argument is belied by the record. The ALJ quite clearly recognized that Butler was in the...