Opinions

7th Circuit Court of Appeals
The following opinions were issued after IL deadline Tuesday.
United States of America v. Michael B. McClellan
14-2449
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division; Chief Judge Philip P. Simon.
Criminal. Affirms convictions of harboring an illegal alien, three counts of mail fraud, and one count of engaging in a monetary transaction involving criminally derived property. The evidence presented to the jury was sufficient for the convictions, and jury instructions concerning the harboring count did not constitute plain error.

Indiana Supreme Court
In the Matter of: Steven J. Ouellette
02S00-1502-DI-107
Attorney discipline. Disbars Steven J. Ouellette for converting $8,725 in client funds and failing to cooperate with the disciplinary process. Ouellette, who currently was suspended indefinitely in a separate disciplinary matter, violated Rules of Professional Conduct 1.15(a), 8.1(b), 8.4(b) and 8.4(c). Respectively, those rules violations are for failing to hold client property in trust; failing to respond to disciplinary authorities; committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness; and conduct involving dishonesty, fraud, deceit or misrepresentation.

Indiana Court of Appeals
Charles R. Ferguson v. The Estate of Lera V. Ferguson
34A02-1411-ES-793
Estate. Reverses on interlocutory appeal an order that Charles R. Ferguson post a bond in excess of $1.1 million, representing the amount of his claim against the estate plus administrative costs in order to stay the sale of the family farm. Finding the trial court abused its discretion in ordering a bond in the amount of a claim against the estate plus costs, the panel remands with instructions that bond be posted at $60,000, the amount of administrative costs.

Indiana Tax Court
Richard D. Foster v. Indiana Department of State Revenue (mem. dec.)
49T10-1504-TA-17
Tax. Grants Indiana Department of State Revenue’s motion to dismiss. Foster appealed the revenue department’s seizure of his tax refunds and vehicles after he pled guilty to possession of marijuana. However, the Tax Court concluded it lacked subject matter jurisdiction since Foster had not taken his appeal from a final determination of the revenue department.

Indiana Tax Court
Indianapolis Public Transportation Corporation v. Department of Local Government Finance
49T10-1203-TA-19
Tax. Denies Department of Local Government Finance’s motion for judgment on the pleadings. Indianapolis Public Transportation Corp. (IndyGo) has standing to appeal the DLGF’s adjustment of its budget because under the facts of the case an “appeal” could not have contemplated adjustments made to the budget that are at issue in the case.

Indiana Court of Appeals
Robert Seal v. State of Indiana
48A02-1410-CR-775
Criminal. Affirms convictions of two counts of Class A felony child molesting; two counts of Class B felony incest; and one count of Class B sexual misconduct with a minor. Finds police’s failure to capture the audio on the recordings of the victims’ interviews does not violate Seal’s due process rights. Rules trial court did not abuse its discretion in instructing the jury that time is not an element of the offenses. Concludes the continuous crime doctrine does not apply.

Indiana Court of Appeals
Parkview Hospital, Inc. v. John J. Wernert, in his official capacity as Secretary of the Indiana Family and Social Services Administration, and The Methodist Hospitals, Inc.
02A03-1408-PL-296
Civil plenary. Affirms trial court ruling in favor of Indiana Family and Social Service Administration’s denial of Medicaid disproportionate share payments to Parkview Hospital. The decision of the FSSA secretary was not arbitrary, capricious, or unsupported by substantial evidence, and there was no contract or agreement of material terms and conditions regarding disproportionate share hospital payments supporting a forfeiture claim.

7th Circuit Court of Appeals
United States of America v. Joshua R. Mackin
14-3602
U.S. District Court, Northern District of Indiana, Fort Wayne Division;
Judge Theresa Springmann
Criminal. Vacates conviction of being a felon in possession of a firearm and remands for further proceedings. Finds the government’s failure to produce the correct and complete continuity slip until mid-trial violated Federal Rule of Criminal Procedure 16. Agrees with defense that the incomplete slip presented during discovery was the basis of the defendant’s trial strategy and his decision not to seek a plea agreement.

Indiana Supreme Court
In the Matter of: Tenneil E. Selner
71S00-1402-DI-96
Attorney discipline. Suspends Tenneil E. Selner for three years without automatic reinstatement for her federal conviction of distribution of pseudoephedrine to participants in a methamphetamine ring. Justices approved the conditional agreement for discipline by a 4-1 vote, with Justice Dickson dissenting, believing Selner’s conduct demonstrated unfitness.

7th Circuit Court of Appeals
The following opinion was posted Wednesday after IL deadline
Carlene M. Craig, et al. v. FedEx Ground Package System, Inc.
10-3115
Appeal from U.S. District Court, Northern District of Indiana, South Bend Division;
Judge Robert L. Miller, Jr.
Civil. Reverses multi-district litigation court’s grant of summary judgment to FedEx and remands with instructions to enter summary judgment in favor of plaintiffs, the Kansas drivers. The drivers are employees of FedEx rather than independent contractors under the Kansas Wage Payment Act, the court ruled. Proceedings may include remand to the Kansas District Court for a determination of damages.

7th Circuit Court of Appeals
Choice Hotels International, Inc. v. Anuj Grover, Arjun Grover and Dharam Punwani
14-3294
Appeal from the U.S. District Court, Northern District of Indiana, Hammond Division;
Judge Joseph S. Van Bokkelen
Civil. Affirms denial of motion for relief from judgment. Finds the investors cannot have the judgment set aside because their attorney failed to protect their interests. Instead they should seek remedy through a malpractice action.

Indiana Court of Appeals
Bryan A. Cox v. State of Indiana
27A02-1412-CR-599
Criminal. Affirms 15-year aggregate executed sentence for Class B felony dealing cocaine and adjudication as a habitual offender. The doctrine of amelioration does not apply to Cox’s habitual offender sentence enhancement. Cox argued that he should have been sentenced under a more lenient amended habitual offender statute effective July 1, 2014, but his crime occurred before this, and the Legislature clearly did not intend for the doctrine of amelioration to apply to the amended statute.

7th Circuit Court of Appeals
Corre Opportunities Fund, LP, et al., v. Emmis Communications Corp.
14-1647
Civil. Affirms ruling against Corre on a complaint that Emmis owed some $34 million in unpaid dividends to owners of preferred stock in the company. Under Indiana’s unique law allowing corporations to vote their shares, Emmis had authority to vote shares that the preferred stock owners claimed were outstanding.  

7th Circuit Court of Appeals
The following opinions were issued after IL deadline Wednesday.
U.S.A. v. Willie J. Harris
14-1846
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Philip P. Simon
Criminal. Affirms convictions of fraud, conspiracy to commit fraud with identification documents, production and trafficking in counterfeit devices, and aggravated identity theft. Finds a notebook taken from Harris’ truck was admissible at trial and the evidence was sufficient to support his convictions. Also finds the District Court did not err in applying sentencing enhancements.

7th Circuit Court of Appeals
The following opinion was issued after IL deadline Tuesday.
David Lawson v. Sun Microsystems, Inc.
13-1502 and 13-1503
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard Young
Civil. Reverses jury award to Lawson for $1.5 million and remands with instructions to enter judgment for Sun Microsystems. Finds the employee compensation plan that was instituted when Sun acquired StorageTek Inc., is unambiguous and Lawson is not entitled to the jury award of $1.5 million.

7th Circuit Court of Appeals
Richard Bell v. Cameron Taylor
14-3099
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Dismisses interlocutory appeal for lack of jurisdiction and remands to the District Court for resolution of outstanding issues. The 7th Circuit had no jurisdiction because Bell’s suit was still alive even though partial summary judgment had been granted.

Indiana Supreme Court
Larry D. Russell, Jr. v. State of Indiana
84S01-1409-CR-583
Criminal. Affirms 10-year sentence for conviction of five counts of Class C felony neglect of a dependent and two counts of Class C felony criminal confinement. Despite an erroneous application of a particular section of Indiana Code on a perceived statutory cap on sentencing, the plea agreement is enforceable because Russell received the benefit of the bargain and there is no compelling reason to set aside the conviction, the majority held. Chief Justice Loretta Rush concurred in result only. Justice Mark Massa dissented, finding that the trial court’s acceptance of a plea agreement based on an error of law amounted to an abuse of discretion.

7th Circuit Court of Appeals
Renato DeBartolo v. United States of America
14-3579
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller.
Reverses denial of a petition for relief from a removal order resulting in the deportation of DeBartolo to Italy. The panel held that the failure of DeBartolo’s attorney to inform him that pleading guilty to a drug charge could result in deportation proceedings was ineffective assistance of counsel.

7th Circuit Court of Appeals
United States of America v. Pascal Sylla
14-2813
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Affirms 2013 conviction of attempted bank robbery stemming from an attempted robbery in 2003. Sylla’s DNA was matched to the crime scene in 2010, thus making his conviction not outside the statute of limitations.