Opinions Feb. 4, 2014

February 4, 2014
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The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
United States of America v. Darnell Jackson
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms conviction and sentence for unlawful possession of a weapon as a convicted felon. By selling the Ruger pistol to David Dircks, who like Jackson was prohibited from possessing a firearm, Jackson transferred the firearm in connection with a felony offense separate and distinct from the possession offense of which he was charged and convicted. Consequently, the District Court properly increased Jackson’s offense level pursuant to section 2K2.1(b)(6)(B).

Tuesday’s opinions
7th Circuit Court of Appeals

Eric Smith v. Executive Director of the Indiana War Memorials Commission, et al.
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses denial of Smith’s motion for a preliminary injunction against the enforcement of a policy that requires a permit before gathering on commission properties. The new policy, revised shortly after the District Court denied the motion, retains the problematic features of the old policy. Also, Smith has met the requirements for obtaining a preliminary injunction. Remands with instructions to enter an appropriate preliminary injunction.

Indiana Court of Appeals
Ruben Gonzalez v. State of Indiana
Criminal. Reverses conviction for Class B felony aggravated battery because of a double jeopardy violation. Remands for trial court to reduce restitution award by $41,200, the amount of a permanent partial impairment settlement paid to Rodney Gahl, a correctional officer Gonzalez severely beat while incarcerated. A PPI payment is compensation for an injured employee’s permanent loss of physical function(s) rather than for an inability to work. Gahl, himself, could not have sought restitution at the criminal proceeding for loss of physical function, as it does not encompass already-incurred lost wages or medical expense. Accordingly, JWF Specialty Company, the third-party administrator for the state’s workers’ compensation benefits, cannot recover the PPI payment via its status as a surrogate victim.

In the Matter of C.U., A Child in Need of Services, C.U. and J.U. v. Indiana Department of Child Services
Juvenile. Affirms adjudication that child is a child in need of services. The evidence supports the designation under I.C. 31-34-1-1 that the parents abandoned the child. Rejects the parents’ claim that the boy should have been adjudicated under I.C. 31-34-1-6 because he substantially endangers his own health or the health of his family members.  

Jason A. Fishburn v. Indiana Public Retirement System
Miscellaneous. Affirms summary judgment for INPRS and the revised determination that Fishburn’s total monthly disability benefit payment from the 1977 fund is 79.85 percent of monthly salary of a first-class patrol officer. Although the statute is ambiguous, the court finds INPRS’ interpretation to be reasonable. Also, based upon the General Assembly’s inaction in the face of the INPRS’ interpretation of Ind. Code 36-8-8-13.5(f), the General Assembly is deemed to have acquiesced in INPRS’s interpretation of the disability benefit statutes.

In the Matter of Des.B. and Dem.B., Minor Children in Need of Services, E.B. v. Indiana Department of Child Services

Juvenile. Affirms determination the children are children in need of services. The evidence supports the trial court’s findings that, as of the fact-finding hearing, the mother continued to have extensive problems with drugs and violent relationships with the children’s fathers. The evidence also supports the trial court’s findings that these problems are harmful to the children. The trial court’s findings support its judgment that “there is a substantial risk of endangering the children” and that the children are in need of care, treatment, or rehabilitation that they are not receiving and that is unlikely to be provided or accepted without the coercive intervention of the court.

Jerry Cooper v. State of Indiana (NFP)
Criminal. Affirms conviction of Class B felony unlawful possession of a firearm by a serious violent felon and remands with instructions to correct a sentencing error.

James B.Wynne v. Review Board of the Indiana Department of Workforce Development and Thyssenkrupp Presta (NFP)
Agency action. Affirms finding that Wynne voluntarily left his employment without good cause.

Steven Smith v. State of Indiana (NFP)
Criminal. Affirms conviction of Class A felony attempted dealing in cocaine and adjudication as a habitual offender. Remands with instructions that the trial court clarify in its records that it did not enter a judgment of conviction on Class B felony possession of cocaine.

Paul Fletcher v. National Financial Services d/b/a Fidelity Investments and Mark Zupan (NFP)
Civil plenary. The trial court did not err in considering the issue of the ownership of the 401(k) account because Fidelity filed a complaint for interpleader of the account and the parties filed a joint motion acknowledging that the account was at issue. The trial court erred in granting Zupan’s motion for summary judgment because Fletcher designated some evidence creating a genuine issue of material fact with regard to forgery. The trial court did not abuse its discretion when it closed discovery after the case had been pending for more than three years.

Ramon Santana, Jr. v. State of Indiana (NFP)
Criminal. Affirms convictions of Class B felony rape and criminal deviate conduct.

Bradly Hornsby v. State of Indiana (NFP)
Criminal. Affirms convictions of Class B misdemeanors public intoxication and disorderly conduct.

Brian Brough v. C. Richard Rush (NFP)
Civil plenary. Affirms summary judgment in favor of Rush on Brough’s legal malpractice complaint.

Junius U. Brooks v. State of Indiana (NFP)
Criminal. Affirms sentence for Class B felony robbery.

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


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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...