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Opinions April 17, 2012

April 17, 2012
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7th Circuit Court of Appeals
United States of America v. Kimani Lanier Fleming
11-1404
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms Fleming’s revised sentence of 480 months imprisonment for convictions of several serious drug and firearm charges. There was no clear error in the District Court’s decision to include routine drug purchases as relevant conduct when it computed his revised sentencing guideline range. Denies Fleming’s implicit request for an expanded certificate of appealability.  

Indiana Tax Court
Utilimaster Corporation v. Indiana Dept. of State Revenue
71T10-1008-TA-43
Tax. Rules Utilimaster’s attorneys are not necessary witnesses pursuant to Professional Conduct Rule 3.7, as information they could testify about can be obtained from Utilimaster employees. The Department of State Revenue has invoked Professional Conduct Rule 3.7 in an attempt to conceal its failure to timely pursue discovery as well as to remove Utilimaster’s attorneys from the case, calling their professionalism into question. The court will not countenance the rule’s abuse as a procedural weapon by invading Utilimaster’s right to counsel of its choice.

Indiana Court of Appeals
Charles Westmoreland v. State of Indiana
49A04-1107-CR-356
Criminal. Reverses denial of motion to suppress marijuana, finding the trial court erred in denying the motion because the officers did not reasonably believe Westmoreland was armed and dangerous. Remands with instructions for the trial court to dismiss the possession of marijuana charge.

Barbara (Rosario) Bessolo v. William I. Rosario
29A02-1108-DR-789
Domestic relation. Affirms finding that Bessolo failed to dismiss the protective order against Rosario as required by the dissolution decree, that she was in contempt, and the award of compensatory damages and attorney fees to Rosario. Reverses the 10-day suspended sentence imposed on Bessolo for future violations of any of the court’s orders. Because Bessolo was aware that she was required to dismiss the protective order but failed to do so and later relied upon it in her dealing with police, the trial court did not err in finding her in contempt.

Trust No. 6011, Lake County Trust Company, Trustee, Simon Beemsterboer, and Victoria J. Beemsterboer v. Heil's Haven Condominiums Homeowners Assn.
43A05-1108-PL-433
Civil plenary. Reverses the portion of paragraph 1 of the judgment that permanently enjoins the Beemsterboers from obstructing the homeowners association’s use of the walkway easement and placing a fence that blocks access to that area, paragraph 2 of the judgment ordering the couple to remove the staircase and repair the sidewalk, and paragraph 3 of the judgment prohibiting the couple from interfering with the reconstructed sidewalk. Affirms paragraph 4 in which the couple was permanently enjoined “from in any fashion interfering with the (association’s) deck.”

Gerald Mayberry v. State of Indiana (NFP)
49A02-1109-CR-879
Criminal. Affirms conviction of Class A misdemeanor interference with reporting a crime and Class B misdemeanor battery.

Jamie E. Green v. State of Indiana (NFP)
49A05-1106-CR-316
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct.

Robbie S. McCain-Ficklin v. State of Indiana (NFP)

27A02-1108-CR-767
Criminal. Affirms conviction of Class D felony battery on McCain-Ficklin’s minor stepson.

Charles Frederick Miller v. State of Indiana (NFP)

41A01-1106-CR-250
Criminal. Affirms conviction of Class D felony auto theft.

John Brooke v. State of Indiana (NFP)
75A05-1106-CR-297
Criminal. Affirms conviction of Class B felony conspiracy to commit armed robbery and 22-year sentence.

The Law Office of Deborah Agard v. Unemployment Insurance Appeals of the Indiana Department of Workforce Development (NFP)
93A02-1107-EX-672
Agency appeal. Affirms finding that the law office owed unemployment insurance tax contributions for an individual the office paid to perform cleaning services at its office and at Kids’ Voice, a nonprofit center where Deborah Agard, the sole proprietor of the law office, serves on the board of directors.

Sterling B. Nelson v. Michelle L. Nelson (NFP)
29A05-1110-DR-533
Domestic relation. Affirms post-dissolution order, in which the trial court imputed $415 in gross weekly income to father during his 12-week period of unemployment and refused to deviate from the Child Support Guidelines.

Manuel Martinez v. State of Indiana (NFP)
57A03-1109-CR-554
Criminal. Affirms restitution order following guilty plea to battery.

Michael M. and Lana S. Ashley, et al. v. Jeffrey and Holly Spaw, et al. (NFP)
02A03-1108-MI-340
Miscellaneous. Affirms trial court’s affirmation of the Indiana Natural Resources Commission’s decision to rule in favor of several back-lot owners in the Long Lake Park subdivision regarding riparian rights.

Indiana Supreme Court had posted no opinions at IL deadline.
 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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