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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. 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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