Seventh Circuit Week in Review: What Do a MySpace Predator, an Unrepresented Corporation, and a Pair of Meth Traffickers Have in Common?

Answer: They all lost their appeals in the Seventh Circuit last week.  In fact, our diligent Seventh Circuit judges issued five new opinions in criminal cases last week, and the defendants lost in all of them.  Here are the highlights:

In the MySpace case, United States v. Morris (No. 08-2329), the defendant attempted to contact a minor through the minor’s MySpace page.  The minor’s mother responded by creating her own MySpace page, in which she posed as a 15 year old, and began a series of communications with the defendant.  After the mom agreed to have sex with him, Morris mailed a bus ticket to her so that they could meet.  The mom reported Morris to the FBI, resulting in his arrest and prosecution.  After his conviction for attempting to transport a minor across state lines to engage in illegal sexual conduct, Morris raised a single issue on appeal: that the person he intended to transport across state lines was neither a minor nor a law enforcement officer posing as a minor, but a private citizen conducting her own sting operation.  However, it is well established in such cases that the defendant has no defense if his intended victim is really an undercover law enforcement officer, and the Seventh Circuit (per Judge Posner) found no basis for distinguishing undercover private citizens: in either situation, the criminal justice system appropriately punishes the defendant for his demonstrated dangerousness. 

Continue ReadingSeventh Circuit Week in Review: What Do a MySpace Predator, an Unrepresented Corporation, and a Pair of Meth Traffickers Have in Common?

Judge Throws NFL For A (Preliminary) Loss In Doping Litigation

Yesterday a federal court judge in Minneapolis preliminarily enjoined the National Football League from enforcing its four-game suspensions of five players (the Vikings’ Kevin Williams and Pat Williams, and the Saints’ Charles Grant, Deuce McAllister, and Will Smith) for violating the League’s drug testing policy.  In July or August 2008, each of the players tested positive for a diuretic, whose alleged source was a dietary supplement with the brand name StarCaps, a substance banned by the NFL and other sports governing bodies because it may be used to mask  usage of anabolic steroids (whose usage by athletes also is prohibited).  The National Football League Players Association, the union representing the players, asserts they did not use StarCaps to mask steroid usage or know that it contained bumetanide, a diuretic not listed as one of the product’s ingredients. They deny any knowing use of a diuretic and voluntary exposure to the adverse health risks of doing so.  Rather, they believed their usage of StarCaps, an over-the-counter weight loss product, was permissible.  The NFL contends that its drug testing policy, which was collectively bargained with the players union, provides for strict liability. The NFL’s Policy on Anabolic Steroids and Related Substances states:

Subject to your right of appeal, if you test positive or otherwise violate the Policy, you will be suspended. You and you alone are responsible for what goes into your body. Claiming that you used only legally available nutritional supplements will not help you in an appeal. . . . Even if they are bought over-the-counter from a known establishment, there is currently no way to be sure that they contain the ingredients listed on the packaging or have not been tainted with prohibited substances . . . . If you take these products, you do so AT YOUR OWN RISK! For your own health and success in the league, we strongly encourage you to avoid the use of supplements altogether, or at the very least to be extremely careful about what you choose to take.

In response, the NFLPA claims the physician chosen by the NFL to independently administer the drug testing program knew, allegedly based on a laboratory’s analysis of StarCaps after an unidentified NFL player’s November 2006 positive test for bumetanide, that StarCaps’ labelling did not disclose this ingredient, but he failed to warn NFL players not to use this specific product in breach of his alleged fiduciary duty to do so.  It also claims that the NFL in-house attorney who oversees the League’s drug testing program had such knowledge, but also failed to notify the NFLPA or players about the presence of bumetanide in StarCaps.

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Supreme Court to Tackle Non-Title VII Mixed Motive Standard

4united_states_supreme_court_112904 I was just completing an exam review today with my employment discrimination law students and I noted that they should remember that the old Price Waterhouse standard might still apply to mixed motive cases under Section 1981, the ADEA, ADA, and retaliation claims under Title VII.  The argument is that the Civil Rights of Act of 1991 only applies to Title VII claims and not to the other laws which are not mentioned in the amendment.

Today, the Supreme Court decided to take cert. in the case of Gross v. FBL Financial Services, Inc., No. 08-441 (opinion below: Gross v. FBL Financial Services, Inc. (8th Cir 05/14/2008), which will help decide exactly what standards should apply in a non-Title VII mixed-motive discrimination case.

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