Seventh Circuit Update Part 1: Cases from July
It’s September, so that leaves us asking the usual question: What happened to the summer? It turns out that July and August were busy months for the Seventh, so we’ll be updating readers in two installments. We will also be posting separately on the big defense win with respect to AI child porn. This installment features discussion of whether those previously involuntarily committed can possess guns, the contractual interpretation of plea bargains, and a smattering of Fourth Amendment cases.
United States of America v. Jonathan S. Rose, No. 24-1086: Rose was previously involuntarily committed and, despite that possible bar to gun ownership, managed to acquire several due to a possible clerical error. He was eventually prosecuted under a federal statute prohibiting anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution” from having guns. The Court believes Rose’s as-applied Second Amendment challenge might have merit but also holds that Rahimi might permit at least some disarmament of mentally ill persons. It therefore remands so the lower court can consider additional factual issues.
United States of America v. Babajide G. Adefusi, No. 25-2385: Adefusi was prosecuted by federal prosecutors in Texas for a passport fraud scheme. His plea contained a promise that he would not face future prosecution for that conduct. However, he was then prosecuted by federal authorities in Illinois for wire fraud and, as the Court concludes, there is some factual overlap between the two cases. The matter therefore requires the Court to analyze the non-prosecution agreement using contract principles. Ultimately, the Court concludes that the contract does not preclude the prosecution at issue. The case contains a good summary of the relevant case law regarding the interpretation of plea bargains when challenged on appeal.
United States of America v. Daniel Samuel Eta, No. 25-1891: Eta’s phone was searched when he entered a US airport on his way back from Nigeria. He argues this was an unconstitutional search. The Seventh, however, points to the well-established exception for searches conducted at the border. Although Eta tries to use scholarship and some favorable authorities to argue that searches of his cell phone contents are different, the Court is unpersuaded that this was anything other than a “routine” border search not requiring reasonable suspicion. (And thus, interestingly, a doctrine once used to inspect goods coming ashore is now used to trawl through a person’s digital life).
United States of America v. Ausencio Martinez, No. 24-1890: This is an interesting and rare Fourth Amendment win. Police received a tip that Martinez’s semitruck was hauling contraband. So they utilized an Illinois regulatory rule permitting warrantless inspection of such a commercial vehicle to conduct a traffic stop. During that stop, a K9 then alerted and narcotics were ultimately found. Although SCOTUS has permitted such warrantless administrative inspections, those inspections must be “reasonable” and cannot be used as a mere pretext for gathering evidence of criminal activity. This is therefore one of the only 4A circumstances where the subjective motivations of the officer matter. Here, the sole motivation for the stop was to further a criminal investigation; accordingly, the conduct of law enforcement was unlawful and, even more notably, the doctrine of good faith does not come to the rescue.
United States of America v. Eric Kendrick, No. 25-2067: Police posted a pole camera outside of Kendrick’s business and used the footage to obtain a search warrant. However, “The government does not invade an expectation of privacy that society is prepared to accept as reasonable when the government uses a common technology, located where officers are lawfully entitled to be, and captures events observable to passerby.” Here, although Kendrick erected a fence around his business, there was a sizable thirty-foot gap which allowed passersby–and those viewing the camera feed–to see inside. Accordingly, there was no 4A violation.
The Estate of Jason Thomson v. Thomas Behn et al, No. 25-2827: As usual, we like to include these cases for those in the specific region. This is a sad § 1983 case involving the Green Bay Police Department. Thomson was arrested at St. Vincent Hospital and died of cardiac arrythmia during his contact with law enforcement. The Court affirms the lower court order finding that the officers in question are entitled to qualified immunity.
United States of America v. Andrew Boltz, No. 25-1986: Boltz was tried on allegations that he exploited a A.S., a teenage girl he met over the internet and allegedly induced to send him nude photos. At trial, apparently to dispute the claim that he “enticed” A.S. to send him the photos in question, he tried to elicit evidence that the victim had freely sent similar material to other adult men online. The Court concludes that the evidence is inadmissible under the federal version of the rape shield. Moreover, because there was other “overwhelming” evidence of guilt, the Court concludes his claim that he was denied the right to present a defense also fails. Next, Boltz argues that the lower court erred when it allowed the government to introduce statements Boltz made regarding similar conduct with respect to another minor. The Court points out that, because Boltz raised an identity defense (and argued the penis in a photograph could have been someone else’s), the government was entitled to introduce this evidence showing a similar modus operandi to prove identity. Finally, the Court also rejects Boltz’s argument that the district court erred by permitting A.S.’s mother to testify about her daughter’s demeanor and personality as this was probative and relevant evidence showing how the victim was “persuaded, induced, or enticed.” In other words, the government was entitled to show the jury what made A.S. a “vulnerable” victim.
Charles Friend v. City of Decatur, Illinois, No. 25-2065: Following an acquittal on domestic violence allegations, Friend pursues a § 1983 claim against the officer who arrested him, alleging an unlawful arrest. Although Friend focuses on reasons to dispute the report of the alleged victim, the Seventh concludes that her statement describing alleged abuse (coupled with some other minimal facts gleaned by the officer) even if “questionable” was sufficient to give probable cause for arrest.
Alyssa Schukar and Scott Olson v. Kenosha County, No.25-2935: This case arises from the civil unrest that occurred following the shooting of Jacob Blake. Schukar and Olson were on the scene in Kenosha as journalists when police shot them with foam rounds from the windows of the courthouse. They argue that their civil rights were violated because the officers fired at them because they were journalists. They fail to persuade that there is evidence that there were so targeted, however, so the Court affirms the lower court’s grant of summary judgment in favor of the police.
United States of America v. Barnett K. Fung, No. 25-1605: Fung’s appeal related to controlled substances violations is yet another opportunity for the Court to explore the nuances of expert vs. lay testimony, an issue that is complicated in this case by the fact that the government called a pharmacist (a seeming expert) as a fact witness to testify about apparent over-prescribing by Fung. The Court concludes that the pharmacist’s testimony did not cross the line and merely described facts about Fung’s relationship with the pharmacy in question.
United States of America v. Steven Dorfman, No. 24-2275: This white collar fraud case contains an interesting discussion as to whether the lower court erred by providing the jury an exhibit during deliberations that “was never used at the trial or published to the jury.” Although Dorfman tries to argue that the exhibit was improperly admitted into the record, the record shows that defense counsel apparently entered a stipulation to various exhibits, including the challenged exhibit at issue. (It would appear, from this appeal, that Dorfman may not have realized the exhibit was admitted at all.) Whether the trial court erred by allowing the jury to consider the otherwise unused exhibit is a “closer call.” However, Dorfman did not object below, so he must meet the onerous demands of plain error review. Although the exhibit was harmful to Dorfman, there is ultimately no prejudice to Dorfman considering the totality of the evidence.
Stanley Felton, Sr. v. Steven Johnson, No. 25-1047: Felton worked for the DOC. In a recorded phone call, he apparently alerted his son–who was incarcerated at a different institution–of an upcoming “shakedown” at that facility. His claim that this was constitutionally protected speech fails.
United States of America v. Mark Randle, No. 25-2278: Police first became alerted to Randle’s drug dealing via a confidential source. They set up a controlled buy; however, the recording device failed. Police obtained a warrant for a GPS tracker, but opted not to get a warrant to search the car. Police then pulled Randle over for a minor (and disputed) traffic violation. While police processed the citation, a K9 alerted and, in response, Randle fled on foot. He was taken into custody and a search of the car revealed a sizable quantity of meth. On appeal, the Court rejects Randle’s arguments for suppression of evidence, holding that “the controlled buy provided probable cause to search Randle’s vehicle under the automobile exception.” In the alternative, the Court holds that its prior decision in Cole regarding dog sniffs also mandates affirmance.
Jaciel Cirrus Rojas v. Samuel Olson, No. 25-3127: We include this decision because it originates from Wisconsin and involves an immigration question that might be relevant to some of our more crimmigration-savvy readers. The Court concludes that certain aliens subject to removal proceedings are, contrary to the Trump Administration’s position, not subject to mandatory detention and eligible for bond. We are clearly *not* immigration lawyers so we won’t try to further summarize matters here, but this site provides a good summary.
United States of America v. John Tyler Jones, No. 25-1355: Police obtained a warrant to search Jones’s home and cited two pieces of evidence establishing probable cause. First, there was a web of suggestive evidence including drug deliveries and phone records tending to suggest Jones’s involvement in drug activity. Second, police found a small amount of discarded marijuana in Jones’s trash. The Seventh is unwilling to conclude, as the lower court did, that the trash evidence alone was enough. But, when aggregated with the other evidence, the Court concludes the averments in the affidavit were sufficient to establish the required probable cause.