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Wednesday, October 13, 2004

Indiana Decisions - 7th Circuit posts 5 today

Ghebremedhin, Ghebre v. Ashcroft, John (On Petitions for Review of an Order of the Board of Immigration Appeals)

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. * * * Because we conclude that the evidence Ghebremedhin presented to the IJ compelled the conclusion that he would be subject to persecution should he be forced to return to Eritrea, we grant the petition for review and reverse the decision of the BIA. * * *

Because the evidence supporting Ghebremedhin’s fear of persecution is so compelling that no reasonable factfinder could agree with the BIA’s decision, we GRANT the petition for review and REVERSE the BIA’s order. The case is REMANDED to the BIA to enter an order granting Ghebremedhin asylum.

USA v. Oliva, Edwin (ND Ill.)
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Edwin Oliva was caught attempting to sell two kilos of cocaine to a confidential informant. He pleaded guilty to conspiracy to possess and distribute more than 500 kilograms of cocaine. Oliva’s plea agreement reserved the right to appeal the district court’s denial of his motion to suppress his arrest and the search of his car. Because we find that the arrest and subsequent search were supported by probable cause, we affirm the conviction.
Osler Institute Inc v. Forde, Lois (SD Ind., Chief Judge Larry J. McKinney)
EVANS, Circuit Judge. The Osler Institute, Inc. appeals from an order granting its former employee, Lois Forde, attorney fees following her successful defense to this lawsuit. * * *

We now arrive at the current controversy. In addition to the noncompetition clause, the employment contract contained a provision providing for attorney fees to the prevailing party. Under that provision, Forde sought and was granted attorney fees of almost $55,000. Osler appeals the fee award, contending that the employment contract was found to be void and therefore, for various reasons, the attorney-fees provision cannot be used to support an award of fees. The argument is, in effect, that Forde prevailed too thoroughly and cannot now recover her fees.

It is uncontested that Indiana law provides the basis for decision. Indiana adheres to the American rule, under which, in the absence of a statutory provision or an agreement providing for fees, each party is required to pay its own attorney fees. When a contract exists allowing for the recovery of attorney fees, the provision will be enforced according to its terms unless it violates public policy. [cites omitted] * * *

The [attorney's fees] clause provides a significant benefit to either party and is not limited to an award of fees for actions on the contract. The present action involved four separate claims against Forde, all involving her employment. The fact that she won by convincing us that she did not qualify for coverage under the noncompetition clause surely cannot mean that she loses the benefit of the sweeping attorney fees provision. We AFFIRM the district court’s award of attorney fees.

USA v. Ceballos, Alfredo (SD Ind., Judge Richard L. Young)
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Two of the defendants, Alfred Ceballos and Jose
Trejo-Pasaran, proceeded to trial on charges of drug trafficking and related crimes. The jury convicted both defendants of all of the charges contained in the indictment. Ceballos and Trejo-Pasaran appeal their convictions. The defendants argue: (1) that the district court committed error when it found that Ceballos’ statements at the time of his arrest were voluntary, (2) that the district court abused its discretion in admitting the testimony of Special Agent Michael Kress with respect to his interpretation of drug code language, (3) that the district court was in error in finding that law enforcement agents did not violate the defendants’ Fourth Amendment rights by interviewing them about booking information, and (4) that the district court abused its discretion in permitting the use of transcripts of the intercepted telephone conversations with identifying names in the margins of the transcripts. For the reasons stated herein, we affirm the convictions and sentences of Ceballos and Trejo-Pasaran.
Corley, Robert N. v. Rosewood Care Center (CD Ill.)
Before RIPPLE, ROVNER and EVANS, Circuit Judges.
ROVNER, Circuit Judge. Placing an elderly parent in a nursing home is a trying experience under the best of circumstances. Running a nursing home can also be challenging; the industry is highly regulated and the customers are often anxious and unhappy about the need for nursing home services. Needless to say, when a customer believes he has been defrauded and the proprietors of the establishment have been accused not just of fraud but racketeering, emotions can be expected to run high. One would hope their respective attorneys would be able to defuse the situation and litigate the case in a dispassionate manner. No such luck here: the parties and their attorneys have chosen the scorched earth model of litigation. This relatively simple case has generated more than one thousand entries in the district court docket. The record fills a back-breaking seven bankers boxes stuffed to bursting, and the briefs on appeal do little to untangle the mess the parties have made of the case. This is the second time we have reviewed a district court’s grant of summary judgment against the plaintiff in this civil RICO action. We previously reversed and remanded a grant of summary judgment because the district court halted discovery before the plaintiff had a full opportunity to prove his case. Now that the plaintiff has been given every opportunity to make his case, we affirm the district court’s grant of summary judgment because the plaintiff is still unable to produce enough evidence to demonstrate a viable RICO claim against the defendants here. The defendants have cross-appealed, arguing that the district court abused its discretion in declining to sanction the plaintiff for multiplying the proceedings in an unreasonable and vexatious manner. Finding no abuse of discretion, we affirm the district court’s judgment in all respects.

Posted by Marcia Oddi on October 13, 2004 01:13 PM
Posted to Indiana Decisions