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Opinions April 16, 2013

April 16, 2013
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The following 7th Circuit Court of Appeals decisions were handed down after IL deadline Monday:

United States of America v. Ronald Zitt and Joshua Wampler
12-1277, 12-2865
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. In a consolidated appeal, affirms denial of Zitt’s motion for a mistrial. The District Court properly exercised its discretion in denying the motion. Dismisses Wampler’s appeal. Wampler pleaded guilty to two drug charges. Wampler waived his right to appeal as a condition of his agreement. Grants his counsel’s motion to withdraw and denies Wampler’s motion for substitute counsel.

Torray Stitts v. Bill Wilson, superintendent, Indiana State Prison
12-2255
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Reverses denial of petition for writ of habeas corpus. Remands to the District Court to resolve the actual extent of trial counsel’s alibi investigation. If the District Court finds that the trial counsel performed no further investigation, then it should grant Stitts’ habeas petition. If the court finds that trial counsel did more, then it must determine de novo whether that investigation was reasonable under Strickland.

Tuesday’s opinions
7th Circuit Court of Appeals

Renee S. Majors v. General Electric Co.
12-2893
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Affirms grant of summary judgment on Majors’ claims that GE violated the Americans with Disabilities Act when it denied her positions and that GE retaliated against her for filing EEOC charges of discrimination.

Robert Leimkuehler, as trustee of and on behalf of the Leimkuehler Inc. Profit Sharing Plan, and on behalf of all others similarly situated v. American United Life Insurance Co.
12-1081, 12-1213, & 12-2536
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Civil. Affirms ruling that American United Life Insurance Co. was not a fiduciary of the Leimkuehler Inc. Profit Sharing Plan with respect to AUL’s revenue-sharing practices. Although very little about the mutual fund industry or the management of 401(k) plans can plausibly be described as transparent, agrees that AUL is not acting as a fiduciary for purposes of 29 U.S.C. § 1002(21)(A) when it makes decisions about, or engages in, revenue sharing. Finds it unnecessary to express any view on the question whether revenue sharing yields net benefits to individual 401(k) investors.

Indiana Court of Appeals
David Arnett v. Julia Arnett (NFP)
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/april/04161301par.pdf  
32A01-1208-DR-383
Domestic relation. Affirms dissolution of marriage.

Enrique Perez v. State of Indiana (NFP)
49A04-1208-CR-419
Criminal. Affirms conviction of Class B felony robbery.

Herman P. Johnson v. State of Indiana (NFP)
49A02-1207-PC-606
Post conviction. Affirms denial of petition for post-conviction relief.

David Delong v. Kim Delong (NFP)
43A03-1206-DR-299
Domestic relation. Affirms custody order, reverses order on support and regarding a parenting coordinator and remands for further proceedings.

Harold M. Bacchus, Jr. v. Fazia Deen-Bacchus (NFP)
02A03-1203-DR-119
Domestic relation. Affirms in part and reverses in part order finding the net worth of the marital property to be $1,405,763, and giving wife 55 percent and husband 45 percent. Remands with instructions.  

The Indiana Supreme Court and Tax Court posted no decisions by IL deadline.
 

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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