A federal appeals court on Tuesday overturned the conviction of a man who posted Internet messages threatening Barack Obama during his 2008 presidential campaign.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Walter Bagdasarian's violent and racist screeds against Obama were "repugnant" but not criminal. The court also said it was obvious the San Diego man wasn't planning to attack the candidate and that the postings were protected by Bagdasarian's free speech rights.

Bagdasarian was convicted in 2009 of two felony counts of threatening a major presidential candidate.

Bagdasarian posted several messages to a Yahoo Finance message board in October 2008, including one that called Obama a racial epithet and another that said "he will have a 50 cal in the head soon" — a reference to a .50 caliber gun.

A retired Air Force officer forwarded the postings to the Secret Service. Yahoo provided Bagdasarian's subscriber information to investigators, who raided his house and seized six guns and a hard drive containing an email with similar sentiments.

Bagdasarian admitted posting the messages, but said he was drunk and joking.

He waived his right to a jury trial. District Judge Marilyn L. Huff found him guilty and sentenced him to 60-days in a half-way home.

But the appeals panel said no "reasonable person" could have taken seriously Bagdasarian's posts.

On July 19, 2011, the Indiana Court of Appeals issued a decision which I found surprising in McCann v. City of Anderson, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 48A02-1009-PL-1060. At issue was whether a trial court had properly granted summary judgment on the question of whether a warrant officer was an employee of the Anderson City Court. Despite the procedural posture of the case and factors that weighed in favor of finding an employer-employee relationship, the Court affirmed a decision granting summary judgment to the defendants.

In this case, McCann was a police officer, who eventually became warrant officer for the Anderson City Court in 1998. He held that post until 2005, when the judge asked that McCann be reassigned. As a result of this dismissal, McCann filed suit based on the Indiana Wage Statute, arguing that he had been an employee of the Court and was entitled to funds that had been allocated to the position of warrant officer by that court. The parties filed cross-motions for summary judgment and the trial court granted the defendants' motion.

On appeal, the Court quoted GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001), for the seven factors that a court should consider when determining whether an employer-employee relationship exists. The Court then analyzed each of these factors and determined that three weighed in favor of the existence an employer-employee relationship and four against, with the "most important" factor weighing against.

Thus, over all, four of the seven factors, including the most important, "Control over the Means Used," indicate McCann was not an employee of the City Court. Because the City Court was not McCann's employer, he cannot be due any "unpaid wages" from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute.

The aspect of this decision that is most surprising is that the Court reached this conclusion despite the procedural posture of the case. It could have easily held that, viewing the facts in the light most favorable to McCann, the seven factors weighed both for and against a finding of an employer-employee relationship between McCann and the City Court created a genuine issue of material fact. This indicates that the factor the Court identified as being "most important", whether the purported employer exercised control over the means used by the purported employee to perform work, is very important indeed.

Lesson:

1.It will be exceedingly difficult to prove the existence of an employer-employee relationship if the purported employer did not exercise control over the means that the purported employee used to perform his work.

Brad A. Catlin
Price Waicukauski & Riley, LLC

http://www.indianalawupdate.com/entry/When-is-a-Person-an-Employee-of-Another

A former corporate executive officer of a New York-based automotive-chemical company was convicted Tuesday in a multimillion-dollar investor fraud scheme that enabled him to buy expensive jewelry and take private jets.

A jury in Manhattan state Supreme Court found Cleveland lawyer James Margulies guilty of charges including grand larceny and scheme to defraud. He faces up to 25 years on the top two counts, which could run consecutively. Bail was set at $1.5 million.

Ira London, an attorney for Margulies, said he planned to file "a very vigorous appeal."

"The jury has spoken. I believe they have convicted an innocent man," he said.

While serving as the company's finance chief — and briefly as CEO — of Industrial Enterprises of America, Inc., from 2004 to 2008, Margulies illegally issued millions of shares of stock to friends and relatives, inflating the share price by making the company look more profitable than it was, prosecutors said.

A teachers' pension fund in Ohio and a church were among the victims of the scheme, prosecutors said.

Margulies personally reaped more than $7 million, spending it on lavish luxuries such as a $350,000 diamond ring for his wife from jeweler Harry Winston, prosecutors said.

He also paid more than a million dollars on the mortgage of his first home, bought a second home and spent $500,000 on a vacation club membership, prosecutors said.

Margulies was charged in the scheme in 2010 along with John D. Mazzuto, who pleaded guilty Jan. 14 to his role in issuing fraudulent shares of stock.

A woman accused of providing alcohol to a teenage driver who caused a deadly Greyhound bus crash has been charged with a misdemeanor, officials said Tuesday.

Michelle Kay Cole, 22, was charged with purchasing an alcoholic beverage for a person under 21 resulting in death, Fresno County District Attorney Elizabeth Egan said at a news conference.

Cole was cited Monday but not arrested, Egan said. She could face up to six months in jail and a $1,000 fine if convicted.

A California Highway Patrol report placed sole blame for the crash on 18-year-old Sylvia Garay. Investigators said she was drunk when her SUV hit a concrete barrier and overturned on Highway 99 on July 22, 2010.

The oncoming bus, carrying 31 passengers on a route from Los Angeles to Sacramento, struck the SUV, skidded into a concrete center divider, then tumbled down a 15-foot embankment and plowed into a eucalyptus tree shortly after 2 a.m. a few miles from downtown Fresno.

Garay, her two passengers and three people on the bus were killed. Authorities say Garay had a blood alcohol level of .11 when she died. The legal limit is .08.

The CHP report said the bus driver had no way to avoid the SUV, which was left without lights when it overturned.

Authorities say a South Florida paralegal stole hundreds of thousands of dollars from her Fort Lauderdale law firm.

Miami-Dade officials on Tuesday charged 53-year-old Brenda Wilcott-Kelly with more than 80 felonies, including grand theft and forging documents. Records show she's also took money from a lawyer who was on his deathbed.

Employees of Hermelee & Geffin were in court Tuesday as Judge Dennis Murphy set Wilcott-Kelly's bond at $116,000.

Defense attorney Morgan Cronin said his client is innocent.

According to the arrest affidavit, Wilcott-Kelly took $82,472 from the firm to pay off her husband's credit cards. She is also accused of stealing $31,050 from lawyer Steven A. Schultz, while he was in the hospital. Schultz leased space from the firm.

In a blow to thousands of hopeful would-be immigrants who had been told they'd won a chance to apply for a green card, a federal judge ruled that the State Department can toss out the results of its May visa lottery, which were deemed invalid because of a computer error.

The State Department said the results of a fresh drawing would be available Friday.

Members of the group had been seeking class action status in their bid to stop the government from nullifying their selection in the visa lottery.

In early May, about 22,000 people were notified they had won a chance to apply for a visa as part of the Diversity Visa Lottery Program, which is aimed at increasing the number of immigrants from the developing world and countries with historically low rates of emigration to the U.S.

One of them, 42-year-old French native Armande Gil, who lives in Florida, called Thursday's decision by U.S. District Judge Amy Berman Jackson another disappointment.