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Opinions July 25, 2013

July 25, 2013
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7th Circuit Court of Appeals
United States of America v. Jama Mire and Hassan Rafle
12-2792, 12-2793
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Affirms both men’s convictions of one count of conspiracy to possess with intent to distribute cathinone; affirms Mire’s additional convictions of knowingly using or maintaining a place for the purpose of distributing and using cathinone; and possession with intent to distribute a mixture or substance containing cathinone. Rejects claims that that their due process rights were violated because they were not given fair warning that the possession of “khat” may be illegal; and that the District Court erred under Daubert in admitting government expert witness testimony regarding khat plants that were seized at the coffee house and tested for cathinone, a controlled substance. Rejects Mire’s argument that his conviction for conspiracy to distribute khat and his conviction for maintaining a place for the distribution or use of khat violate the Double Jeopardy Clause.

Indiana Court of Appeals
Jason King v. State of Indiana
64A04-1209-CR-464
Criminal. Affirms conviction and 45-year sentence for attempted murder. The trial court did not abuse its discretion in denying King’s motion to suppress evidence regarding his confession.

Farmers Mutual Insurance Company of Grant and Blackford Counties v. M Jewell, LLC, Auditor of Grant County, Indiana and Treasurer of Grant County, Indiana
27A05-1211-MI-593
Miscellaneous. Reverses order denying Farmers Mutual’s petition to set aside a tax deed issued to M Jewell, LLC. The denial of the petition was clearly erroneous because it was based on the conclusion that the auditor’s failure to search his records was, in essence, harmless. Remands with instructions to grant the petition.

Eddie G. Showley, Executor, Estate of Phillip J. Showley v. Tracey Kelsey, Individually and as Successor Personal Representative of the Estate of Sonya Sue Showley
09A04-1301-ES-22
Estate, supervised. Affirms order distributing the wrongful death proceeds to Tracey Kelsey, individually and as successor personal representative of the estate of Sonya Sue Showley. The trial court properly applied the law and thus, did not abuse its discretion by applying Rhode Island statutory law to the distribution of the wrongful death settlement. Judge Brown dissents.

Jason E. Morales v. State of Indiana

82A05-1302-CR-72
Criminal. Affirms denial of petition for placement in the Vanderburgh County Forensic Diversion Program. Concludes that the trial court’s denial of sex offender Morales’ petition was not an abuse of discretion because there was no final administrative decision for the trial court to review and that, even if the program had explicitly rejected Morales, its decision would not have been arbitrary or capricious because Morales was ineligible under the statute. Finally, even assuming solely for argument’s sake that Morales had been eligible under the statute, Indiana counties have the ability to determine the scope of their forensic diversion programs.

Bradley T. Steidle v. State of Indiana (NFP)

12A04-1212-CR-623
Criminal. Reverses conviction of Class A misdemeanor operating while intoxicated and remands with instructions to vacate Steidle’s Class A misdemeanor conviction and sentence and enter a judgment and an appropriate sentence for operating a vehicle while intoxicated as a Class C misdemeanor.

Virgil Pyles v. State of Indiana (NFP)
34A02-1301-CR-94
Criminal. Reverses calculation of the remaining balance of Pyles’ suspended sentence upon revocation of his probation. The trial court is directed to amend its sentencing order on petition to revoke to reflect that as of Nov. 29, 2012, Pyles had 609 days left to serve on his original suspended sentence.

Lorraine V. Kucki, Michael J. Kucki, Michael R. Bradash, Ziese & Sons Excavating, Inc.: Construction Services.; Biesen Excavating, Inc. and V & H Excavating, Inc. v. Jessica Archer (NFP)
45A03-1210-CT-422
Civil tort. Affirms order denying the Kuckis’ and other defendants’ joint motion for summary judgment, contending that the trial court erred in ordering the substitution of a plaintiff with no damages as the real party in interest.

Mark R. Hurst v. State of Indiana (NFP)
64A03-1209-CR-391
Criminal. Affirms convictions of Class C felony robbery and Class D felony criminal confinement.

Na-Son D. Smith v. State of Indiana (NFP)
48A02-1210-CR-872
Criminal. Affirms convictions and sentences for two counts of murder and one count of robbery as a Class A felony.

Donald R. Smitty v. State of Indiana (NFP)
32A05-1212-CR-610
Criminal. Affirms conviction of Class A misdemeanor operating while intoxicated causing endangerment and sentence. Remands for the limited purpose of correcting the record to show that the operating while intoxicated charge is enhanced by the three-year sentence that was imposed in light of the habitual substance-offender finding.

Clarissa Brewer v. State of Indiana (NFP)
49A05-1212-CR-633
Criminal. Affirms two convictions of Class D felony neglect of a dependent. Concludes that the trial court abused its discretion by imposing community service in lieu of fines and costs and by improperly delegating Brewer’s ability to pay fines and costs to the probation department. Remands with instructions.

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

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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