The 7th Circuit Stretch is designed to identify and discuss recent decisions of the Seventh Circuit Court of Appeals that touch on issues important to litigators, focusing in particular on issues of civil and criminal procedure, and more importantly, the rules of evidence.

The Transom Rule 21st Century Style

Farley v. Koepp |14-1695

September 2015

Overworked lawyers of bygone eras could sometimes rely on the transom rule. The rule allowed an attorney to “file” a document first thing in the morning as if the filing occurred the day before. The principle became known as the “transom rule.” With the advent of ECF, the transom rule lost its purpose. But ECF has created its own challenges. In Farley v. Koepp, 14-1695, the Seventh Circuit addresses when a document is considered filed for purposes of statute of limitations purposes when the ECF process goes awry.Read More >>

Supervised Release: First Things First

United States v. Moore |14-3559

September 2015

In United States v. Moore, 14-3559, the Seventh Circuit continued its hyper-vigilance in reviewing supervised release sentences. The facts of the case are inconsequential except for these salient issues: the district court placed the defendant on supervised release for three years (within the applicable guideline range for supervised release) “without first enunciating its finding that a term of supervised release was necessary.” The sentence was remanded for reconsideration.Read More >>

Another Sea Change in Sentencing?

United States v. Presley | 14-2704

September 2015

In the world of criminal sentencing, much has been in flux over the last decade, from the evisceration of the Sentencing Guidelines, to the new found discretion of Booker and its progeny, to supervised release issues. In United States v. Presley, 14-2704, the Seventh Circuit appears to have opened a new chapter in sentencing reform. Presley was a career offender whose multiple convictions had failed to dissuade him from continued criminal conduct. He was convicted of multiple drug and gun offenses. The district court sentenced him to 440 months in prison. By BOP estimates, he will be released from prison at almost 64 years of age.Read More >>

Reigning in the Scope of False Claims Act

United States v. Sanford-Brown, Ltd. | 14-2506

September 2015

The number of qui tam suits filed alleging fraud in federal programs has grown from 30 in 1987, to 300 to 400 a year from 2000 to 2009, to more than 700 in 2013 and 2014. See “Justice Department Recovers Nearly $6 Billion from False Claims Act Cases in Fiscal Year 2014,” DOJ Press Release, dated 11/20/14. A casual observer might conclude from these statistics that fraud against the government has been rapidly increasing over the last 25 years. Those more involved in this area of litigation might have a different take – to wit, the means of alleging claims under the False Claims Act has rapidly increased.Read More >>

Material World?

United States v. Clark | 14-1251

June 2015

In United States v. Clark, 14-1251, the Court confirmed that, like Madonna, it is “living in a material world” when it comes to prosecutions under 18 U.S.C. §1001, reversing a §1001 conviction based on lack of materiality of the false statement. Read More >>

Psychoanalysis from the Bench

United States v. Macias | 13-2166

June 2015

The Seventh Circuit has repeatedly warned that the deliberate indifference instruction (also known as the “ostrich instruction”) should be given in relatively limited circumstances. United States v. Macias, 13-2166, was not one of those limited circumstances, and thus the Court reversed the conviction. Read More >>

Your Honor, May I Try Again?

Childress v. Walker | 14-1204
Runnion v. Girl Scouts of Greater Chicago
and Northwest Indiana | 14-1729

June 2015

In Childress v. Walker, 14-1204 and Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana, No. 14-1729, the Court considered the standards under Federal Rule of Civil Procedure 15 for leave to amend a complaint. Read More >>

The Meaning of “Willful”

Dukane Precast v. Perez | 14-3156

June 2015

OSHA investigations are not usually the source of significant legal developments, but Dukane Precast v. Perez, 14-3156, bucks the trend. After a Dukane Precast worker was seriously injured, OSHA investigated and cited the company with three serious violations, and one willful violation of OSHA regulations, which an administrative law judge upheld. Dukane appealed the findings, arguing inter alia  that willful violation was not in fact “willful.” Read More >>

Revocation Proceedings: When It is Better to Say Something Than Nothing At All

United States v. Boutlinghouse | 14-2764
United States v. Downs | 14-3157

June 2015

In United States v. Boutlinghouse, 14-2764 and United States v. Downs, 14-3157, the Seventh Circuit considered various issues regarding revocation proceedings. Read More >>

A New Route for Post-Conviction Sentencing Challenges

Webster v. Daniels 14-1049

June 2015

In Webster v. Daniels No. 14-1049, a sharply divided en banc court tried to clarify the confusing jurisprudence around habeas petitions. Read More >>

Document Retention Policy Saves the Day

Aircraft Check Services Co. v. Verizon Wireless | 14-2301

April 2015

Next time you are meeting with the general counsel of your favorite  corporate client and trying to impress upon her the importance of an established document retention policy, pull out Aircraft Check Services Co. v. Verizon Wireless, 14-2301. Aircraft Check Services had the potential to be a huge, consuming antitrust class action lawsuit involving the pricing of text messages. Read More >>

Time to Raise Timeliness

Hillman Health Center of Rochester v. Abbott Laboratories
14-2282 & 14-2909

April 2015

In Hillman Health Center of Rochester v. Abbott Laboratories, a civil RICO case based on alleged off-label promotion of certain pharmaceuticals, the Seventh Circuit reaffirmed its view that dismissal of a complaint based on statute of limitations “at the pleading stage is an unusual step, since a complaint need not anticipate and overcome affirmative defenses, such as statute of limitations.” Read More >>

“Self-Critical Analysis Privilege” Nonexistent in Illinois State Courts

Harris v. One Hope United, Inc. | 2015 IL 117200

April 2015

Although our focus is Seventh Circuit jurisprudence, occasionally we come across a case that is so significant that we are compelled to bring it to your attention. Harris v. One Hope United, Inc., 2015 IL 117200, is such a case.  In Harris, the Illinois Supreme Court found that the “self-critical analysis privilege” does not exist in Illinois courts. Therefore, a private social service agency’s internal review of an infant’s death while the infant and her family were under the agency’s care was not privileged, and consequently discoverable in civil litigation.Read More >>

Developing Second Amendment Jurisprudence

Friedman v. City of Highland Park | 14-3091

April 2015

Most of us do not spend a significant (if any) amount of time litigating Second Amendment issues, but it is one of those hot button political issues that some like to use to infuriate your favorite liberal friend or NRA member.  In Friedman v. City of Highland Park, 14-3091, a split panel considered Highland Park’s complete ban on possession of assault weapons or large-capacity magazines (accepting more than 10 rounds), including AR-15’s and AK-47’s. Read More >>

Use and Misuse of IRS Administrative Subpoenas

United States v. Procknow | 14-1398

April 2015

In United States v. Procknow, 14-1398, the Seventh Circuit reviewed the appropriate use of administrative subpoenas by the IRS to further a criminal investigation. In Procknow, IRS agents issued administrative subpoenas to initiate a criminal investigation based on information provided by the local police. After issuing the administrative summonses, and after receiving some responsive documents, a Department of Justice criminal investigation was opened. The agents then destroyed any records received from the administrative subpoena, issuing grand jury subpoenas in their stead. Read More >>

When the Judge Knows More Than the Attorneys

United States v. Modjewski | 13-3012

April 2015

Have you ever presented an expert witness and the direct goes swimmingly?  Opposing counsel’s cross does not get much mileage, and you slowly exhale thinking all went well, when the judge utters those few, dangerous words, “Excuse me, I just have a few questions.”

In United States v. Modjewski, the Seventh Circuit explored the appropriate limits of a trial judge engaging in questioning during a sentencing hearing. Read More >>

Keep the Door Closed

United States v. Curtis | 14-2069

April 2015

In U.S. v. Curtis, after an expensive divorce and some looting by a former law partner, Curtis fell behind on his taxes. The IRS worked cooperatively with Curtis over the next decade but eventually referred the matter for criminal investigation. Curtis was charged with three misdemeanor counts of willfully failing to pay taxes in 2007, 2008, and 2009 in violation of 26 U.S.C. § 7203. The only issue at trial was whether he acted willfully. Read More >>

Out of Circuit, But Worth a Read

In re: Kellogg Brown & Root | 14-5055
U.S. Court of Appeals for the D.C. Circuit

August 2014

While we like to focus on Seventh Circuit cases, the influential U.S. Court of Appeals for the D.C. Circuit issued an extremely important ruling on the scope of attorney-client privilege in the context of internal investigations. In re: Kellogg Brown & Root, No. 14-5055, the D.C. Circuit reaffirmed that confidential statements made during the course of an internal investigation are privileged. Read More >>

Guilty Pleas by Magistrate Judges

United States v. Harden | 13-1323

August 2014

In United States v. Harden, No. 13-1323, the Seventh Circuit found under the Federal Magistrates Act, 28 U.S.C. §636, that federal magistrates cannot accept Rule 11 guilty pleas to felonies. Read More >>

Revealing Relevance

Wilson v. City of Chicago | 13-1279

August 2014

In Wilson v. City of Chicago, the Court touched on an evidentiary issue that may be fodder next time you are arguing in favor of admission of relevant and damning evidence. Read More >>

Right to Have a Fool for a Client

United States v. Lee | 13-1976

August 2014

In United States v. Lee, No. 13-1976, the Court re-affirmed that a “competent” defendant has the right to represent himself at all phases of a criminal case, including a suppression hearing. Read More >>

Timing is Everything

United States v. Gutierrez | 14-1159

August 2014

Davis v. United States, 131 S. Ct. 2419 (2011) holds that evidence will not be suppressed under the Fourth Amendment if “binding appellate precedent specifically authorize[d]” the officers’ conduct at the time they acted. And United States v. Gutierrez illustrates well the results this can cause.Read More >>

Just the Facts Ma'am

Reeves v. Jewel Food Stores, Inc. | 13-3782

August 2014

In Reeves v. Jewel Food Stores, Inc., 13-3782, the Seventh Circuit re-affirmed an underlying precept of fact pleading.Read More >>

What Are the Facts Ma'am?

Bradner v. Am. Academy of Orthopaedic Surgeons, et al. | 12-3426

August 2014

The next time you face a summary judgment motion in which an opponent has failed to properly support a conclusory allegation, consider citing to Brandner v. American Academy of Orthopaedic Surgeons, No. 12-3426.Read More >>

Putting Civility Back in Civil Litigation

Salata v. Weyerhaeuser Co. | 13-3136

August 2014

Salata v. Weyerhaeuser Co. is a good reference next time you are faced with truly contumacious conduct by opposing counsel. Read More >>

Available Relief for the Unavailable Witness

United States v. Jonassen | 13-1410

August 2014

In United States v. Jonassen, the Seventh Circuit found that a defendant who causes the unavailability of a witness does not reap the benefits of his own misconduct. Read More >>

Sentencing Potpourri

United States v. Chychula | 12-3695

August 2014

In United States v. Chychula, No. 12-3695, the Court reminded litigants and district courts that when an obstruction of justice enhancement is applied (USSG §3C1.1) based on a defendant’s perjurious statements, the district court “should make a finding as to all the factual predicates necessary for a finding of perjury: false testimony, materiality, and willful intent.” Failure to do so is error (although in this case, the failure was harmless).Read More >>

Restitution Trifecta

United States v. Moeser | 13-3718

August 2014

Next time a defendant questions why he or she is required to be jointly and severally liable for restitution in a criminal case, pull out United States v. Moeser, No. 13-3718, as a primer to explain the fundamentals of restitution. Read More >>

Even Federal Judges Make Mistakes

Shuffle Tech int'l, LLC v. Wolff Gaming Inc. | 13-3576

August 2014

Judges make mistakes and understanding Rule 60, which allows district courts to correct certain types of errors in otherwise final judgments is important for any litigator. Read More >>

FINRA Outside the Law?

Birkelbach v. SEC| 13-2896

July 2014

Birkelbach v. SEC suggests that if the government sufficiently delegates enough of its authority to the right people, it just might be able to operate outside of the law.Read More >>

Going "Too Far" Back in Time

United States v. Purham | 13-2916

July 2014

In United States v. Purham, the Seventh Circuit issued a rare setback to the government in its pursuit of relevant conduct. Read More >>

Conditions of Release

United States v. Siegel | 13-1633; -1640
United States v. Norfleet | 13-1767 (consolidated)

July 2014

At a sentencing hearing, most defense attorneys give little (if any) thought to supervised release conditions. The goal is to minimize a client’s prison sentence – not worry about how often he is drug tested once he gets out. The opinion in the consolidated appeals of  United States v. Siegel and United States v. Norfleet should change that. Read More >>

"John Doe" Warrants in Federal Court

United States v. Purham | 13-2475

July 2014

“John Doe” search warrants are commonplace in state prosecutions, and as federal prosecutors continue to adopt criminal cases investigated by state law enforcement officers, defense counsel will see more “John Doe” warrants being litigated in federal court. While “John Doe” warrants are not per se prohibited in federal court, United States v. Glover is an example of their limitations.Read More >>

Problems with the "I Didn't Mean to Do It" Defense

United States v. Beavers | 13-3198

July 2014

While corrupt Chicago politicians generally do not provide good examples of the political leadership that we deserve, their trials are often instructive on other matters. United States v. Beavers is no different.Read More >>

Odds & Ends

United States v. Daoud | 14-1284
United States v. Newman | 13-3467
Eubanks, et al. v. Pella Corp., et al. | 13-2091;
-2133; -2136; -2162; -2202

July 2014

The Court also issued a series of decisions that while not generally applicable to a wide range of cases, may be of interest to you. Read More >>

Silent Movie

United States v. Wallace| 13-2160

July 2014

While a picture is often said to be worth 1,000 words, according to the Seventh Circuit, a video recording is no statement at all. In United States v. Wallace, the government introduced a dark and fairly ambiguous video purporting to show Wallace buying drugs. The video was taken by his nephew working as a paid DEA informant, but by the time of trial, the nephew had recanted his testimony against Wallace in an affidavit and refused to testify for the government. The DEA nevertheless played the video without sound and a DEA agent testified as to what he thought it showed.Read More >>

Proffer Letter Pitfalls

United States v. Bryant | 13-1578

May 2014

Any defense attorney who advises a client to enter into a cooperation deal with the government needs to read United States v. Bryant. It is a good reminder that the protections offered in exchange for candid testimony are rarely as firm as one might believe.

Read More >>

The Procedural World of Sentencing

United States v. Donelli | 13-2548

May 2014

Donelli is another case of which defense counsel needs to be aware. In U.S. v. Cunningham, 429 F.3d 673 (7th Cir. 2005), the Seventh Circuit announced that sentencing judges must “address a defendant’s principal arguments in mitigation when those arguments have recognized legal merit.” Donelli instructs what a defense attorney must do at the time of sentencing to make a district court aware of a principal mitigation argument, such that the requirement of Cunningham consideration attaches.

Read More >>

Staleness: A Dying Doctrine?

United States v. Carroll | 13-2600

May 2014

Bad facts make bad law. This was true in U.S. v. Carroll, No. 13-2600, which held that evidence more than five years old could support a finding of probable cause to search a home and computers within it.

Read More >>

"Don't Call Me Shirley"

United States v. Haldar | 13-1238

May 2014

Haldar is a good reminder that trial counsel must be diligent in raising and maintaining evidentiary objections during the give and take of the trial process in order to preserve issues for appeal. Haldar also demonstrates that comedic references can have a very long shelf-life.

Read More >>

FRE 404(b)

United States v. Gomez | 12-1104
United States v. Torres-Chavez | 13-1340
United States v. Reed | 12-3701

April 2014

The fight to keep out evidence of prior bad acts often leaves defendants (and their counsel) feeling battered and beaten – and sometimes cheated. It is anybody’s guess whether this will change in the coming months when the Seventh Circuit hears en banc a case asking whether to change the test for determining the admissibility of evidence under FRE 404(b). See U.S. v. Gomez, No. 12-1104 (7th Cir. June 14, 2013).

Read More >>

Prosecutorial (In)Discretion

United States v. Abair | 13-2498
RRD v. Holder | 13-2141

April 2014

We could not pass up an opportunity to highlight two cases in which judges on the Seventh Circuit openly questioned the aggressive exercise of prosecutorial discretion.

Read More >>

The Sanctity of the Jury

U.S. v. Torres-Chavez | 13-1340

April 2014

Thomas Jefferson famously said: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Someone should have told the Seventh Circuit. In U.S. v Torres-Chavez, No. 13-1340, the Court held that a jury verdict will stand even if the jurors defy the Constitution.Read More >>

FRE 608(b)

U.S. v. Abair | 13-2498

April 2014

Stop us if you have heard this story before: A Russian woman wanted to buy a home in Indiana. But Citibank Moscow would not let her transfer funds directly into her account in the United States because of bureaucratic reasons. So she slowly withdrew funds from the Russian account at ATMs in Indiana and deposited the cash into her United States account. The next thing she knows, she is convicted of structuring currency transactions, after facing a relentless and brutal cross-examination that accused her of lying on two totally unrelated documents – a student loan application and federal tax return.

Read More >>

Statistically Speaking

U.S. v. Chhibber | 12-2728

March 2014

For those of you who practice in the health care arena, Chhibber is a must read, and is probably worth sharing with the chief compliance officer of your favorite health care client. Read More >>

Vouching for Agent Doright – the Do’s and Dont’s

U.S. v. Alexander | 12-3498

March 2014

Have you ever sat at counsel table after delivering a powerful closing argument highlighting your impeachment of Agent Doright, only to hear the government prosecutor in her rebuttal stand up and vouch for his honesty and integrity?  Did you think to yourself, “That’s not fair”?  It may not have been – and United States v. Alexander tells us why.Read More >>

Hearsay Exceptions: Here to Stay

U.S. v. Boyce | 13-1087

March 2014

As discussed in Boyce, the “excited utterance” and “present sense impression” exceptions to the hearsay rule are alive and well in the Seventh Circuit . . . for now.Read More >>

Rule 12(b)(a) Standard: Where are the Facts?

Adams v. City of Indianapolis | 13-3422

March 2014

Next time you are searching for an excellent case for legal support of your motion to dismiss, grab Adams.  Read More >>

Sentencing Potpourri

U.S. v. Prado | 12-3762
U.S. v. Jackson | 13-1496
U.S. v. Peters | 12/3830

March 2014

While the Court issued no monumental sentencing decisions in February, there were two opinions issued worth filing in your folder of quotable cases – and one worth filing in the recycling bin.  Read More >>

Mens Rea Revisited: Knowingly does not mean not knowing the law.

U.S. v. O'Malley (aka "Butch") | 12-2771

January 2014

Federal regulations abound. It has been reported that more than 13,000 final rules were published in the Federal Register during President Obama’s first term. Over 330 of those rules were classified as “major.” Nevertheless, in O’Malley, the Seventh Circuit reminds us that a person is presumed to know all of these regulations, and can be found guilty of “knowingly” violating one of them, without proof that he ever opened up the Code of Federal Regulations or was otherwise aware of the substance of the regulation. Read More >>

Duality of Lay and Expert Witness, and Its Potential Pitfalls

U.S. v. Jones and Brown | 11-3864; 12-1695

January 2014

It is always important to remember that a single witness can provide both lay and expert testimony, and the line between the two is fine. Lay testimony is based upon one’s own observations. That testimony transforms to expert testimony if the witness brings his experience or training to bear on her “personal observations and makes connections for the jury based on that specialized knowledge.”

In Jones, a police officer walked – and crossed – this line when testifying about a dye pack that exploded in the messenger bag of a bank robber. Read More >>

Lay and Expert Witness Issues – Round II

U.S. v. Cheek | 12-2472

January 2014

In Cheek, the Seventh Circuit again expounded on the lay witness/expert witness distinction – this time reviewing the testimony of an FBI agent who testified about the meaning of “code words” used by drug dealers on intercepted telephone calls. Read More >>

Discovery Sanctions: The Wisdom of an Iowa Farmer

In Re: Boehringer Ingelheim Pharmaceuticals | 13-3898

January 2014

Sanctionable discovery conduct has seen a precipitous rise, especially in the context of e-discovery. According to industry studies, from 2009 to 2012, parties sought sanctions for discovery abuses in 459 cases. Boehringer reminds us that parties engaged in such spats should remember a wise saying often used by Iowa farmers: “Pigs get fat, and hogs get slaughtered.”Read More >>

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