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Opinions Sept. 3, 2013

September 3, 2013
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7th Circuit Court of Appeals
USA v. Farshad Ghiassi
12-3596
Criminal. Affirms 70-month sentence for Ghiassi’s guilty plea to being a felon in possession of a firearm, in violation of 18 U.S. Code 922(g)(1). Finds the District Court was uniquely and well-situated to assess the credibility of Ghiassi’s co-defendant and her statements that she purchased eight firearms on his behalf. Also rejects Ghiassi’s alternative argument that the District Court deprived him of due process. Rules Ghiassi knew the court was going to rely on his co-defendant’s statements and he had opportunity to challenge those statements.

Indiana Court of Appeals
Peru City Police Department and City of Peru v. Gregory Martin
52A02-1304-PL-350
Civil plenary. Reverses a trial court ruling that overturned a city board’s firing of a police officer for use of excessive force against a 64-year-old nursing home patient hit with five Taser deployments in one minute. The panel held that the trial court erroneously substituted its judgment for that of the city board, impermissibly reweighed evidence, disregarded evidence favorable to the board’s decision, credited the testimony of witnesses that the trial court did not personally hear, and misstated evidence regarding the scope of the officer’s training.

Peter F. Amaya v. D. Craig Brater, M.D., In his Capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; et al.
49A04-1212-PL-620
Civil plenary. Affirms trial court grant of summary judgment in favor of Indiana University School of Medicine and related co-defendants for the dismissal of third-year medical student Peter Amaya on allegations of cheating on an exam. The panel held that Amaya was not denied due process and that it could not conclude that the decision to dismiss Amaya was not based on substantial evidence or was arbitrary or capricious.

Marion Turner v. State of Indiana
49A05-1302-CR-59
Criminal. Affirms conviction for dealing in cocaine as a Class A felony. Finds no reversible error in the trial court’s exclusion of a confidential informant’s offer to pay more money for cocaine. The jury could “reasonably interpret” from Turner’s testimony saying “the intensity was basically up the ante,” that the purchase price was being increased. Also rules the evidence is sufficient to prove Turner’s predisposition to deal cocaine. Turner’s interaction with an undercover detective indicated he was familiar with drug jargon and was soliciting a future transaction.  

TP Orthodontics, Inc., Christopher K. Kesling, DDS, MS, Adam Kesling, and Emily Kesling, Individually and derivatively on behalf of TP Orthodontics, Inc. v. Andrew C. Kesling, et al.
46A03-1207-MI-324
Miscellaneous. Affirms trial court’s order compelling TP Orthodontics to file a copy of the special litigation committee’s entire report under seal and to produce a copy for the siblings and their counsel. Rules the heavily redacted report gives a partial picture at best. It does not provide any information on what the committee may have failed to do or may have done incorrectly. Consequently, the derivative plaintiffs must have access to the complete unredacted report in order to determine if the committee was disinterested or conducted its investigation in good faith.

Kem Duerson v. State of Indiana (NFP)
82A01-1301-CR-23
Criminal. Affirms conviction of Class A felony dealing in cocaine and adjudication as a habitual offender.

Yulanda C. Petty v. John T. Petty (NFP)
71A03-1301-DR-11
Domestic relation. Affirms in part, reverses in part and remands a trial court order in favor of John Petty. Remands for a hearing to determine the balance in a trust account and a corresponding recalculation of Yulanda Petty’s share of support for a daughter’s college expenses.

Ruben Mancillas, Jr. v. State of Indiana (NFP)
55A04-1208-CR-444
Criminal. Affirms aggregate sentence of seven-and-a-half years for conviction of Class D felony resisting law enforcement with a motor vehicle, misdemeanor counts of failure to stop at an accident resulting in damage to a vehicle and operating a vehicle while intoxicated enhanced by a habitual offender finding.

Dwight McPherson v. State of Indiana (NFP)
48A05-1302-CR-64
Criminal. Remands to the trial court for proceedings, finding error in imposing a $200 public defender fee and in leaving a determination of restitution for the probation department.

Guy Ivester v. State of Indiana (NFP)
33A04-1209-PC-491
Post conviction. Affirms denial of post-conviction relief from 18-year executed sentence for conviction of Class A felony dealing in a Schedule II controlled substance.

In the Matter of the Termination of the Parent-Child Relationship of E.M., L.M., & G.M., and S.M. (Mother) v. The Indiana Department of Child Services (NFP)
29A02-1301-JT-89
Juvenile. Affirms termination of parental rights.

Robert J. Winings v. State of Indiana (NFP)
20A03-1301-PC-26
Post conviction. Affirms denial of post-conviction relief from 40-year executed sentence for convictions of Class A felony dealing methamphetamine within 1,000 feet of a school and Class B felony dealing methamphetamine.

Robert Small v. State of Indiana (NFP)
48A04-1301-CR-38
Criminal. Affirms revocation of probation.

The Indiana Supreme Court and Tax Court issued no opinions prior to IL deadline.

 

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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