Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Online Gambling Lawsuit Flops Under the Illinois Loss Recovery Act

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Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University Law

Gambling losers Casey Sonnenberg and Daniel Fahrner, continued their losing streak after the Seventh Circuit ruled they could not recoup their gambling losses from online gambling websites in Fahrner v. Tiltware, LLC. The two Illinois men each lost at least $50 on various online gambling sites including one operated by the defendant, Tiltware, LLC.

Gambling is a crime under Illinois law, but the state allows gamblers to recover their losses in a civil suit against the winner under the Illinois Loss Recovery Act (ILRA). The statute of limitations under the act is six months, but if parties do not file a timely lawsuit, third parties may bring a claim on their behalf. In this case, the mothers of the two men sued the website operator after Sonnenberg and Fahrner failed to sue within the statute of limitations period.

The trial court originally dismissed the suit in 2015, after the plaintiffs failed to specify exactly how much money was lost and who the winner of the money was. Naming the website operator as the winner proved to be an unsuccessful argument with the Seventh Circuit, as the court reasoned that operating the site and taking some of the money as a website maintenance fee was not enough for the defendant to be classified as a winner. The Court opined, “A winner would be a person whom a player had played with and lost to.”

The plaintiffs also attempted to convince the court to build a civil cause of action into the criminal statute that would targets operators of illegal gambling sites. However, the Seventh Circuit noted that the full range of criminal penalties available under the law suggested legislators likely did not intend for that type of action to exist. In addition, the court discussed the disastrous legal and economic consequences the civil remedy could have on the gambling industry by inviting a flood of lawsuits from gamblers.

According to the court, creating legal remedies for gambling losses is not a proper deterrent against gambling because gamblers are aware of the risk of losing at the outset. Judge Posner, the author of the opinion, made sure to wrap up his analysis in true Posner fashion by ending with an facetious quote in reference to gambling losers, “I’d rather have won, but $50 wasn’t too high a price to pay for a night of gambling, and en route to losing $50 I did after all win some nice pots and get compliments from the guys I was playing with.”

Several cases arising under the ILRA have been dismissed, partially for failing to name a specific winner or loser, as in Langone v. FanDuel, a case involving a fantasy sports website.  Other states also have similar versions of the Loss Recovery Act. Although Sonnenberg and Fahrner cannot seem to win in or outside the courtroom, this case is certainly a win for the gambling industry. The Seventh Circuit’s ruling effectively insulates gambling website owners and operators from liability under the ILRA, further protecting the industry from being sued into oblivion. It may also be precedent for the growing strain of fantasy sports ILRA cases in the jurisdiction, and influential case law in other states with Loss Recovery Acts.

Claims of Age-related Bias in the Workplace

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

According to the Bureau of Labor Statistics, 1 in 5 workers in the U.S. is age 55 or older and of those surveyed, 64 percent of workers have experienced age discrimination in the workplace. Age discrimination (29%) doubled the claims for sex discrimination (14%) and nearly tripled the claims for race discrimination (11%) from 2007 to 2008, an increase from 19,103 to 24,582 claims. On January 20, 2016, U.S. District Judge, John J. Tharp, Jr. issued a ruling in one such case, Victor v. Village of Hoffman Estates.

Like many towns during the great recession of 2008, the Village of Hoffman Estates felt the pangs of the economic downturn. Budget shortfalls and revenues falling below projected levels forced management to scale back employees’ hours. Barbara Victor worked full-time as the Human Resource (HR) Generalist with the Village. Worried about being laid off, Barbara became emotionally distressed and took a long medical leave of absence. Barbara never returned to work in HR, so the Village assigned another employee, D’Ann Granger – nine years younger than her – to take over her duties.

On June 12, 2009, Barbara filed a grievance, claiming that superiors harassed and retaliated against her. She alleged her superiors refused to meet with her as scheduled to inform her of her employment status. Barbara sued the Village in the U.S. District Court, N.D. of Illinois, Eastern Division for age discrimination and retaliation for having filed or made grievances. Defendant moved for summary judgment.

Judge Tharp granted summary judgment in favor of defendant. When there is no genuine issue of material fact from the admissible evidence, the moving party is entitled to summary judgment as a matter of law.

First, the Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against an individual based on age. Barbara claimed the Village reduced her hours because she was 57 years old. The court turned to a four-prong indirect method test to assess the validity of the claim. It requires the plaintiff to show that she: (1) is a member of a protected class; (2) who met her employer’s business expectations; but (3) suffered an adverse employment action; and (4) employees outside of the protected class (i.e., younger employees) were treated more favorably.

Judge Tharp pointed out that Barbara’s pay rate rose since she first got hired in 1998. She went from part-time to full-time in 2004 working 37.5 hours, and she eventually worked 40 hours when she became HR Generalist in 2007. Because Barbara failed to prove that her age, pay rate, or seniority was ever an issue, the court dismissed the age discrimination claim.

Secondly, Judge Tharp dismissed the retaliation claim under a three-prong direct method test. Barbara filed numerous internal grievances and met the first element of engaging in statutorily protected activity. The second element was not met because her claims consisted of generalities rather than specific instances. For example, she claimed her employer used “hostile treatment, less favorable evaluations, and non-selection for various positions.” Thus, she was unable to make a causal connection in order to meet the final element. Her failure to exhaust all administrative remedies with the Equal Employment Opportunity Commission (EEOC) to challenge unfair employment practices under Title VII also did not work in her favor.

If your employer has discriminated against you in Indiana, you may file a claim of age-related bias in the workplace with either the state administrative agency, the Indiana Civil Rights Commission, or the federal administrative agency, the EEOC. There is no place in this world for discrimination and there is no room in the workplace for age-related bias either.

 

Justice Is Never Free… In Regard to Attorney’s Fees

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By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Goesel v. Boley International (H.K.) Ltd., et al., is a very unfortunate case involving a minor child that suffered a life changing injury resulting from a negligently designed and produced toy robot. This case never made it to trial because the two parties settled the day before the trial was set to start.

Goesel, who was five years old at the time of the incident, was playing with a toy robot that was designed and produced by Boley International (Boley). The toy robot shattered which lead to pieces of the robot piercing Goesel’s right eye lens. This injury resulted in irreversible damage, and caused him great pain and suffering. Goesel’s parents hired the law firm of William, Bax & Saltzman to sue Boley for the damage they caused to their son.

This case came before the Seventh Circuit on appeal because of a disagreement between Goesel’s counsel and the presiding judge on how much the attorney’s fees would be. The parties settled on the amount of $687,500 to be paid to Goesel by Boley for the injury he sustained. Personal injury cases are, traditionally, taken on by attorneys on a contingency fee basis. This means that the attorney will only get paid if the plaintiff were to win the case. If the plaintiff were to lose the case, then the attorney will not get paid for the services provided. This is exactly the type of arrangement that was agreed upon in this case. The retainer agreement stipulated that if Goesel won the case then the firm would receive one-third (1/3) of the settlement, and all litigation expenses were to be paid by Goesel from the settlement. This type of retainer is common practice for firms that take on personal injury cases.

The seventh circuit decided that Goesel’s counsel was entitled to all of the attorney’s fees under the retainer agreement, which was reasonable, and that the trial judge was wrong in the ruling. The seventh circuit awarded the attorney’s fees saying that they were reasonable. The fees ended up being about 58% of the settlement leaving Goesel with only about 42% of the settlement. Opinions will be different on whether or not this amount was fair; however, the key principle to remember is that there is an expectation (and an obligation) for an attorney to work endless hours to get the best result for their clients. Therefore, they not be compensated reasonably and fairly.

 

Moderate Requirements Results in Strict Penalties for Child Abusers. 

Witness swearing on the bible telling the truth in the court room

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

Recently, the Seventh Circuit Court of Appeals reviewed what the district court called one of the most serious crimes it has ever seen. In doing so, it looks at evidence submitted during trial, consecutive v. concurrent sentences, supervised-release conditions, and restitution. So just what exactly occurred in USA v. Bour you ask?

Bour paid a woman on several occasions to molest her daughters, who were between 4-18   months and 3-5 years during the course of abuse. Bour, himself, sexually touched the youngest child, penetrated her mouth and genitals, and filmed at least two encounters with her. Additionally, he photographed the genitals of the older daughter. Bour later plead guilty to purchasing a child for the production of child pornography under 18 U.S.C. § 2251A(b), three counts of producing child pornography under 18 U.S.C. § 2251(a), and one count of possessing child pornography under 18 U.S.C. § 2252(a)(4). Bour was sentenced to life for purchasing a child for pornography production and 85 consecutive years on the remaining counts.

Bour objects to the description of the masturbation videos based on claims of the Fifth and Fourteenth Amendment right to privacy. Under 18 U.S.C. § 3661, Congress provides that for the purpose of imposing an appropriate sentence, no limits should be placed on information concerning the background, character, and conduct of a person. The guidelines, statutory law, and the constitution only limit information on certain enumerated characteristics from being admitted. Bour’s masturbatory conduct was relevant to sentencing in that it demonstrated that he took pleasure in producing graphic films.

The court reviewed Bour’s challenge on imposing consecutive versus concurrent imprisonment terms on procedural error and substantive reasonableness grounds. Bour alleges the district judge erred in failing to explain why he imposed consecutive sentences. If the sentence for the highest statutory maximum is “less than the total punishment, the district court may run counts consecutively”; when a ruling is made above this guideline an explanation must be given. Sentencing “based on factors sufficiently particularized to the individual circumstances of the case” will not be found to be in error. As the district court considered all factors set out in Bour’s memorandum and considered mitigation, no procedural error is found. Further, a sentence is not deemed unreasonable because it is above the advisory sentencing guidelines. “While a more significant justification is needed for a major departure from the guidelines, that justification need not be extraordinary”.  Considering the horror of Bour’s crimes, the district court did not abuse its discretion in substantive reasonableness. The judge believed it was necessary to ensure Bour never left prison.

The court reviewed the challenge of supervised release for plain error. Bour challenged six conditions of supervised release that were inapplicable to him, overbroad, or vague. He failed to show that his substantive rights, the criminal proceeding’s fairness or integrity, or the proceeding’s public reputation would suffer. As Bour is serving a life sentence he will never be subject to his conditions of release, therefore his point is moot.

Finally, Bour challenged the restitution award, which was reviewed for plain error. If a victim’s losses are not apparent ten days before sentencing, the prosecutor must inform the court, and the court shall set a final-determination date no more than ninety days from sentencing. As the minor victims had no guardian at the time of sentencing, the government could not decide the needed restitution until after the minors received court-appointed guardians. However, if the district court makes it clear that restitution will be ordered, the power is retained to set restitution after the time period. The district judge made it clear 89 days after sentencing that restitution would be ordered, reserving the right to set it at a later time.

The court affirmed all challenges in this order. This case sets out a precedent that not only will affect the defendant, but the rest of society. Bour’s case proves that children are among one of the most protected classes of individuals and we aim to keep it that way.

Thug Life: Cocaine, Marijuana Bars to Asylum

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Zach Melloy
Juris Doctor Candidate, 2016
Valparaiso University Law

In the context of U.S. immigration law, seekers of asylum or refugee status must demonstrate “persecution.”Persecution involves three essential elements: the petitioner must establish harm, that the harm was authorized by a foreign government, and that the harm stems from race, religion, nationality, political opinion, or membership of a particular social group.

Jonathan Castillo-Ibarra, a 24-year-old citizen of El Salvador, applied for a withholding of removal and protection under the United Nations Convention Against Torture based on his former membership of Mara Salvatrucha, better known as MS-13.

Castillo-Ibarra originally entered the United States with a relative when he was 12 years old. He was placed in immigration proceedings, and in 2005 he received a final order of removal after failing to depart voluntarily. Instead of heading back to El Salvador, however, Castillo-Ibarra remained in the U.S. and became a member of MS-13. He was found in Indiana in 2011 with 21 grams of cocaine on his person, and was subsequently removed back to El Salvador.

Two months later he was found in Indiana again, and this time was arrested for possession of marijuana. This arrest led to Castillo-Ibarra’s previous cocaine charge being reinstated, and in December 2012 he was sentenced to 20 years imprisonment for dealing cocaine.

While in prison, the Department of Homeland Security contacted Castillo-Ibarra and notified him that he would be removed back to El Salvador pursuant to his 2005 order. Castillo-Ibarra, who had multiple tattoos indicating his membership in MS-13, stated that he was afraid to return to El Salvador because he had quit the gang and would likely be murdered in retaliation. His aunt had already been threatened and beaten, and Castillo-Ibarra himself had also been threatened. He stated that the police would likely not help him in El Salvador.

During an interview with an asylum officer, the officer concluded that Castillo-Ibarra did not have a reasonable fear of persecution or torture because no one had actually tried to harm him in El Salvador, and he couldn’t link possible gang retaliation with the government. Not only that, but an Immigration Judge also found that because Castillo-Ibarra had been convicted of a “particularly serious crime” (cocaine trafficking), he was not eligible to remain in the United States. The Board of Immigration Appeals agreed, and as a result Castillo-Ibarra filed a petition for deferral under the Convention Against Torture.

The Seventh Circuit Court of Appeals looked over Castillo-Ibarra’s petition, but eventually sided with the Immigration Judge and the Board of Immigration Appeals. As both previous agencies had noted, Castillo-Ibarra was barred from seeking a withholding of removal because he had already been convicted of a particularly serious crime.

Notwithstanding that determination, the Seventh Circuit also held that even if he had not been convicted, Castillo-Ibarra still would not be entitled to relief under the Convention Against Torture, because he had not shown that he more likely than not would experience severe pain and suffering authorized by the Salvadoran government. As a result, Castillo-Ibarra will be forced to return back to El Salvador, regardless of his previous convictions and former participation in MS-13.

Indiana’s Personalized License Plates: Government Speech or Individual Expression?

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Today, specialty license plates are commonly seen on cars and trucks across the country. Some display amusing or entertaining messages, while others are simply used as a unique way to identify a driver’s vehicle. Earlier this month, the Supreme Court of Indiana considered a case dealing with the intersection of state-issued specialty license plates and the freedom of speech. In his opinion, Justice Dickson held that Indiana’s personalized license plates are government speech and therefore immune from First Amendment attacks.

In Indiana, owners of registered vehicles can apply to the Bureau of Motor Vehicles (BMV) for personalized license plates (“PLPs”). Ind. Code § 9-18-15-1. PLPs display a combination of letters and/or numbers which identifies the vehicle and is “requested by the owner or lessee of the vehicle and approved by the bureau.”

Over the years, PLPs in Indiana have become quite popular. For example, between January 1, 2011 and July 19, 2013, the BMV received 71,452 applications for personalized plates.

After receiving an application for a PLP, the BMV has the authority to reject a PLP that: (1) contains a connotation offensive to good taste and decency; (2) would be misleading; or (3) is otherwise determined by the bureau to be improper for issuance. Ind. Code § 9-18-15-4(b). Similarly, the BMV can revoke a previously issued PLP if it receives a substantial number of complaints about the PLP’s message, or if the PLP contains references or expression that Indiana law prohibits. 140 IAC 2-5-4(a).

A class of Indiana citizens, all of whom had their applications reject or PLPs revoked, challenged the constitutionality of the PLP program, claiming that the BMV’s decision-making process violates the First Amendment and the Due Process Clause of the Fourteenth Amendment. The BMV argued that its PLP decision-making process was constitutional because personalized license plates are a form of government speech.

Initially, the lawsuit arose two years ago when the BMV refused to renew a license plate that said “0INK.” The American Civil Liberties Union (ACLU) of Indiana sued the BMV on behalf of Rodney Vawter, who claimed the message was an innocent attempt to make light of his work as a police officer.

In its opinion, the Indiana Supreme Court relies on several factors from Walker v. Tex. Div., Sons of Confederate Veterans, Inc. to determine if PLPs are a form of government speech. In Walker, the Supreme Court considered whether Texas’s specialty license plates were government speech. First, the Court considered whether the government has historically used the medium to speak to the public. In its analysis, the Court reasoned that license plates have long been used for government purposes, such as providing identifiers for the public and law enforcement. The Court further reasoned that license plates have historically been used as a way to communicate between states. For example, all fifty states have unique graphics and slogans on their plates which put drivers and law enforcement on notice as to where the driver is from and where the vehicle is registered.

Next, the Court looked at whether, in the public’s mind, the message is closely identified and associated with the state. Here, the Court reasoned that the PLPs technically belong to the BMV and display “Indiana” at the top of every plate, indicating that the state of Indiana owns and issues them. Therefore, the public reasonably associates PLPs with the government.

Finally, the Court examined the degree of control that the state maintains over the messages conveyed. Analyzing these factors together, the Court held that PLPs are a form of government speech. Accordingly, it found that the BMV did not violate the First Amendment right to free speech or the Due Process Clause of the Fourteenth Amendment.

Under Walker’s reasoning, personalized license plates can be seen as a form of government speech because the state is issuing them. And the state certainly has a legitimate interest in rejecting or revoking inappropriate PLPs. But how can a personalized license plate really be government speech when the individual, rather than the state, is using it as a form of self-expression? If only there was some sort of happy medium between government speech and individual expression.

Disability Rights Victory: Court Allows Disabled Plaintiff a Second Chance at Litigation

Disability Rights Victory

Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University School of Law

Despite the existence of disability laws, disabled people still face many barriers to equality. For instance, disabled persons are less likely to be employed than those without disabilities. From 2013 to 2014, the rate of employment for disabled people was only 17.1 percent compared to 64 percent for those who are not disabled.

In Reed v. Illinois, the Seventh Circuit recently rejected the state of Illinois’ collateral estoppel claim against a disabled plaintiff seeking to sue the state court for failing to provide her with disability accommodations during her pro se lawsuit.

The case stems from an earlier personal injury suit brought by the Plaintiff, Linda Reed, in 2011. Reed was diagnosed with Tardive dyskinesia, which causes involuntary muscle spasms, choking, tremors, pain, and occasional muteness and screaming. She also had posttraumatic stress disorder. These two disabilities severely limited her communication, thinking, and mobility skills. Reed litigated the case without a lawyer, and asked for accommodations beforehand, such as a friend to take notes for her, and a podium. These requests were honored. However, the court denied other requests for a microphone, an interpreter to express Reed’s thoughts when she could not communicate, and a set of special jury instructions that explained her disability.

Unfortunately, the trial devolved into nightmare for Reed without these accommodations. She had to grunt and use hand gestures during the times she could not verbally communicate her thoughts, which the jury was unable to understand. And even worse, was the judge’s conduct. He often yelled at Reed, told her to “hurry up” in front of the jury, and cut off her examination of witnesses. The judge’s behavior and the embarrassment related to it even caused Reed to go into a fit of convulsions at one point.

Unsurprisingly, the jury did not find in favor of Reed, but she moved for a new trial on the grounds that she was disabled and had been denied reasonable accommodations under the Americans With Disabilities Act (ADA). The ADA prohibits discrimination in on the basis of disability in employment, public accommodations, and other areas of life. The ADA also defines disabilities.

The trial court judge denied her motion for a new trial because he concluded that her pauses in speech were related to indecisiveness rather than a disability. He also stated that her speech impediment had been observed and fully accommodated. The Illinois appellate court affirmed the ruling. She later filed an ADA action in federal court against the Cook County court for failing to adequately accommodate her disability. The state argued that her lawsuit was barred under collateral estoppel, and the district court agreed.

The Seventh Circuit noted that all the requirements of collateral estoppel had been met in this case, but explained that the more important issue in collateral estoppel analysis was whether Reed had a full and fair opportunity to litigate the case. The Seventh Circuit reasoned that she had not had a full and fair opportunity because her chance at oral arguments was denied on the basis of her disability and she had no lawyer to help litigate her case. She also did not mention the Rehabilitation Act of 1973 in her state appeals, as she had in federal court. The trial judge’s inconsistent statements regarding her accommodations were also important to the decision, along with the judge’s determination that the plaintiff’s issues were related to indecisiveness rather than an actual disability.

The court of appeals also brought up the judicial system’s history of disparate treatment towards disabled persons, citing to Supreme Court cases such as Tennessee v. Lane, which led to the enactment of Title II of the ADA to ensure the disabled had equal access to the courts.

It is clear that even with anti-discrimination laws that are designed to protect the disabled, they are often denied their rights by the very system that should be enforcing them. The Seventh Circuit did provide one small victory in this case by recognizing the injustices committed against the disabled and the importance of equal opportunities in the court system.

Smiling in the Face of Religious Adversity

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Zach Melloy
Juris Doctor Candidate, 2016
Valparaiso University Law

An employee filed suit against her employer, the Circuit Court of Cook County, Illinois, alleging that they had subjected her to a hostile work environment on the basis of her religion and national origin.

Fozyia Huri, a native of Saudi Arabia and a practicing Muslim, began working in 2000 for the Circuit Court of Cook County as a childcare attendant. She was to work under Sylvia McCullum, a devout and vocal Christian who did not bother to introduce herself to Huri until Huri had been there for two weeks. According to Huri, McCullum was unfriendly from the moment they were introduced. Over eight years, McCullum repeatedly told Huri, who routinely wore a hijab, that one of her colleagues was a “good church-going Christian” and that the she and the chief judge were both “good Christians.”

In 2009, McCullum started becoming more and more vocal, telling her co-workers to work with a “good Christian” rather than Huri, whom McCullum described as “evil.” McCullum also began treating Huri resentfully; she made false claims against her, subjected her to different rules than her co-workers, screamed at her, and subjected her to stricter scrutiny than her co-workers. McCullum also asked the other office attendants to holds hands and say a prayer “in the name of Jesus Christ.”

A year later, Huri was transferred to the Court Reporters’ Office at the Cook County Circuit Court. Her new supervisors, however, treated her just as badly as McCullum had. Huri was prohibited from entering her office early, although other employees have 24-hour access. She was also prohibited from letting her daughter wait in the lobby, although children of non-Muslim, non-Arab employees are allowed in the lobby and the office. She was also excluded from departmental social gatherings, and was also denied time off for an Islamic holiday. Huri complained to the Chief Judge’s Office, but never heard anything.

As a result of this harassment, Huri filed a pro se claim against the Circuit Court of Cook County pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983, alleging that she had been subjected to a hostile work environment, because she is Muslim and an Arab. The United States District Court for the Northern District of Illinois dismissed the action, and Huri filed an appeal with the Seventh Circuit Court of Appeals.

The Seventh Circuit held that the District Court’s analysis was “replete with error.” The District Court had dismissed the entire case for two reasons: failure to exhaust administrative remedies, and failure to state a claim. However, as the Seventh Circuit noted, Huri had already filed three complaints with the Equal Employment Opportunity Commission before going to court.

The Seventh Circuit also held that Huri’spro se complaint accurately stated a claim under Title VII. In order to state a Title VII hostile work environment claim, a plaintiff must allege that they were subject to unwelcome harassment based on a reason forbidden under Title VII. Huri alleged the basis for her harassment and discrimination was her religion and national origin, both of which are forbidden under Title VII.

In addition to unwelcome harassment and a forbidden reason under Title VII, a plaintiff must also allege that the harassment was so severe or pervasive that it created a hostile or abusive working environment, and that there is a basis for employer liability. The Seventh Circuit held that Huri met this requirement, stating that “[i]t is enough to say that it is plausible that the screaming, prayer circles, social shunning, implicit criticism of non-Christians, and uniquely bad treatment of Huri and her daughter could plausibly be abusive.” As a result, the District Court erred when it dismissed Huri’s claim.

The Seventh Circuit then reversed the District Court’s decision and remanded the case for further proceedings. Huri will still have to overcome the burden to produce evidence to prove her claim, but now she will finally be able to demonstrate the religious harassment and discrimination she’s suffered for over a decade.

Life in prison for juveniles under RICO?

Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

Should juveniles be sentenced to life in prison without the possibility of parole? In a recent case, the Seventh Circuit Court of Appeals addressed this unsettling question.

In 2005, Latin Kings gang members Martinez and Vallejo were indicted under the Racketeer Influenced and Corrupt Organization Act (RICO) for crimes they committed as juveniles, including first degree murder. After pleading guilty, both Martinez and Vallejo were sentenced to life in prison. The defendants now claim that they are entitled to new sentencing hearings under Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole for juveniles violate the Eighth Amendment.

Martinez and Vallejo were both sentenced to life in prison under 18 U.S.C. § 1963, which states that anyone who violates any RICO provision shall be imprisoned not more than 20 years, or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.

In his opinion, Judge Flaum identifies two possible interpretations of the statute. On one hand, it is possible that the statute mandates a life sentence whenever the crime carries a maximum sentence of life in prison. If so, the statute is unconstitutional under Miller. On the other, it is possible that the statute sets only a maximum sentence of life in prison in such cases, and a court could choose to give a lower sentence.

Although Judge Flaum states that most courts have interpreted the statute to impose a sentence of no more than twenty years, he reasons that because the defendants were given individualized sentencing hearings and not sentenced by statutory mandate, the district court did not violate Miller.

Given the severe nature of the defendants’ crimes, life sentences can certainly be justified even if they were minors at the time. However, the ambiguity behind the sentencing guidelines suggests that even courts have trouble interpreting them. Maybe the legislature should change the language of the statute to be less ambiguous. But perhaps it is time for a complete overhaul of the mandatory minimum sentencing guidelines.

In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

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