author: PETERSON, District Judge.

text:
    M.G. SKINNER AND ASSOCIATES INSURANCE AGENCY, INC. and Western Consolidated Premium Properties, Inc., Plaintiffs-Appellants, v. NORMAN-SPENCER AGENCY, INC., Defendant-Appellee.
    No. 15-2290
    United States Court of Appeals, Seventh Circuit.
    Argued January 14, 2016
    Decided January 4, 2017

      James G. Argionis, Bryan Jeffrey Johnson, Bruce R. Meckler, Attorneys, Cozen O’Connor, Chicago, IL, for Plaintiffs-Appellants.

      Robert E. Elworth, Anthony J. Tunney, Attorneys, Hepler Broom, LLC, Chicago, IL, for Defendant-Appellee.
    Before FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.

       Of the Western District of Wisconsin, sitting by designation.

   PETERSON, District Judge.

This case arises out of a complex insurance transaction that ended badly because the supposed insurance turned but to be a complete fraud. Despite the complexities of the broader transaction and the litigation that it spawned, this appeal presents, essentially, a single question: whether Norman-Spencer Agency, Inc., an Ohio insurance agency, owed a duty to M.G. Skinner and Associates Insurance Agency, Inc. and Western Consolidated Premium Properties, Inc., two entities that had engaged a chain of sub-brokers to procure insurance for a vast collection of real property.

M.G. Skinner and Associates and Western Consolidated Premium Properties, plaintiffs-appellants here, contend that defendant-appellee Norman-Spencer Agency was one of the sub-brokers in the chain, and thus it owed them a duty of reasonable care in procuring the insurance, which Norman-Spencer Agency breached by failing to point out obvious signs that the ultimate provider of the insurance was dishonest. But according to Norman-Spencer Agency, it was never asked and it never agreed to procure insurance for plaintiffs-appellants, and thus it owed them no duty. The district court agreed with Norman-Spencer Agency, and in separate orders, granted summary judgment in its favor, against each plaintiff-appellant. We agree with the district court and affirm both orders.

I. Background

A, Factual background

Appellee Norman-Spencer Agency, Inc., which we will call Norman-Spencer, is an Ohio-based insurance agency. We will leave Norman-Spencer to the side for the moment and begin the story with appellants.

Appellant Western Consolidated Premium Properties, Inc. (WCPP), a California corporation, is a risk purchasing group through which the owners or managers of commercial property can purchase insurance. Appellant M.G. Skinner and Associates Insurance Agency, Inc. (MGSA), also a California corporation, is an insurance broker that acts as the program administrator for WCPP. Michael Skinner is the sole shareholder of both WCPP and MGSA. WCPP and its affiliated broker MGSA represent more than 600 commercial properties, including office buildings, shopping centers, and residential complexes. The total insured value of these properties is nearly $3.5 billion.

In late 2011, MGSA sought renewal coverage for the WCPP properties. MGSA contracted with MC Risk Services, LLC (MC Risk), a Texas insurance broker specializing in habitational and commercial real estate, to procure the renewal insurance for WCPP. Jed Morash was co-owner of MC Risk. Insurance placements as large as this one commonly involve sub-brokers. In this ease, MC Risk engaged National Condo & Apartment Insurance Group LLC (NCAIG), an Ohio insurance broker. NCAIG’s sole member is Kenneth Little-john. NCAIG had previous insurance-placement experience with Michael A. Ward and his company JRSO, LLC. By November 1, 2011, Littlejohn and Morash intended to place the WCPP coverage with JRSO. The chain of brokers was thus com-píete: from MGSA, to MC Risk, to NCAIG, and ultimately to Ward and JRSO, who would provide the insurance.

Except that Ward and JRSO did not provide insurance. As it turns out, Ward had created a fictitious insurance policy for WCPP that was not actually backed by a legitimate insurer. Ward was convicted of wire fraud, sentenced to 10 years in prison, and ordered to pay more than $9 million in restitution to various victims of his fraud, including WCPP.

So that’s the main arc of the story. To fit Norman-Spencer in, we must backtrack and add some details.

One of the property groups in the WCPP program was Myan Management Group, representing dozens of commercial and multi-unit residential properties in the southwest. The Myan properties had a history of losses, and Morash (at MC Risk) thought that cheaper coverage could be obtained by splitting the Myan properties off from the main WCPP group. So, with Littlejohn’s advice, MGSA and MC Risk agreed to place Myan Management directly with JRSO for insurance. The Myan Management coverage was bound effective October 1, 2011, the premium was invoiced on October 4, and paid on November 3. But this coverage was also fictitious.

In previous deals in which NCAIG had worked with Ward and JRSO, they had used Mulberry Insurance Services as program administrator. But Mulberry’s work had been unsatisfactory, so NCAIG’s Litt-lejohn recommended to Ward that he replace Mulberry with Norman-Spencer as program administrator.

Ward, Littlejohn, and Norman-Spencer’s president, Brian Norman, met on November 11, 2011, to discuss Norman-Spencer’s potential retention as the JRSO program administrator. Following that meeting, Norman drafted a document titled “Memorandum of Understanding” that purported to outline the agreement between Ward and Norman. Among the terms of this agreement was that Norman-Spencer would issue a backlog of approximately 64 already-bound policies in exchange for $25,000, and that going forward, Norman-Spencer would underwrite and issue policies for the JRSO program. The memorandum of understanding was never signed, but Norman-Spencer was paid the $25,000 and began issuing the backlogged policies. The 64 backlogged policies included Myan Management’s coverage, but not WCPP’s.

Norman pushed to be involved in more business with Ward. But whatever the terms of Ward and Norman-Spencer’s November- 11, 2011, agreement, Ward did not allow Norman-Spencer to be involved in the WCPP placement. In December 2011, Norman and-Littlejohn (for NCAIG) discussed Norman-Spencer accepting a reduced commission to convince Ward to allow Norman-Spencer into the WCPP placement. But Ward never let Norman-Spencer into the deal. Littlejohn said this was because Ward thought the margin would be “too thin” if Norman-Spencer earned a commission on the placement.

Along the way, Norman became aware of facts that MGSA and WCPP contend should have been “red flags” showing Ward’s lack of trustworthiness. In November 2011, Norman discovered an order of conservation issued against Ward and JRSO by the Circuit Court of Cook County that Norman thought could cause concern about Ward’s ability to bind coverage. Norman knew that Ward worked out of his home following the order of conservation’s provision confiscating JRSO’s property. When Norman asked Ward for a copy of Ward’s reinsurance agreement, Ward delayed for over a month before producing a signed agreement, and even then, that agreement had irregularities that might have made it suspicious. But Norman-Spencer did not inform WCPP or MGSA about these, problems.

In December 2011, MC Risk gave WCPP a quote for the renewal coverage on JRSO letterhead, stating that Ward and JRSO had obtained coverage for WCPP. WCPP accepted the quote and paid more than $1.8 million as an initial installment of the premium. In the process, at least four insurance proposals were prepared for the WCPP coverage under the JRSO program. The various proposals were prepared on the letterheads of MC Risk, NCAIG, North American Capacity Insurance Company, and JRSO. None of the proposals or any pricing information came through Norman-Spencer. MC Risk and NCAIG each received a commission from the premium; Norman-Spencer did not.

After Ward’s fraud was discovered, the Myan Management coverage was reincorporated into the WCPP placement. MGSA and WCPP ultimately procured new insurance that cost more than $2 million more than the original, fraudulent insurance.

B. Procedural background

WCPP and MGSA filed a lawsuit in the United States District Court for the Northern District of Illinois against MC Risk, NCAIG, Norman-Spencer, JRSO, and Ward. All claims except those against Norman-Spencer were resolved through default or settlement. WCPP and MGSA each brought claims for negligence and breach of fiduciary duty against Norman-Spencer, alleging that Norman-Spencer should have alerted them to the “red flags” it had uncovered that suggested that Ward and JRSO were untrustworthy.

Norman-Spencer moved for summary judgment twice, first with regard to WCPP’s claims, and later with regard to MGSA’s claims. The district court granted Norman-Spencer’s motion for summary judgment regarding WCPP’s claims on February 25, 2015. The district court concluded that Norman-Spencer did not owe a duty to WCPP under the Illinois Insurance Placement Liability Act (IIPLA), 735 ILCS 5/2-2201, because neither WCPP nor any broker in the procurement chain ever requested Norman-Spencer’s assistance with that placement. The court granted Norman-Spencer summary judgment on WCPP’s breach of fiduciary duty claim for similar reasons, concluding that Norman-Spencer could not be liable under that theory because it did not participate in the placement or receive any WCPP funds from that placement.

The district court granted summary judgment in favor of Norman-Spencer on MGSA’s claims on May 13, 2015, concluding in part that MGSA was not an “insured” on the Myan Management policy for purposes of the IIPLA. The court granted summary judgment in favor of Norman-Spencer on MGSA’s breach of fiduciary duty claim, concluding that because MGSA was not the “insured” on the Myan Management policy and did not make any payment toward that policy, Norman-Spencer could not have wrongly retained any MGSA funds.

II. Discussion

A. Standard of review

We review the district court’s opinions granting summary judgment in favor of Norman-Spencer de novo and construe the facts in the light most favorable to WCPP and MGSA as the non-moving parties. Rahn v. Bd. of Trs. of N. Ill. Univ., 803 F.3d 285, 287 (7th Cir. 2015). Summary judgment is appropriate if there is no genuine dispute of material fact and Norman-Spencer is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

B. WCPP’s claims

1. Negligence

Under Illinois law, an insurance broker has a duty to exercise ordinary care and skill in renewing, procuring, binding, or placing coverage requested by the insured or proposed insured. See 735 ILCS 5/22201. This duty was an aspect of Illinois common law of negligence even before the statute was enacted. AYH Holdings, Inc. v. Avreco, Inc., 357 Ill.App.3d 17, 40-41, 292 Ill.Dec. 675, 695-96, 826 N.E.2d 1111, 1131-32 (2005).

There are three principles applicable to the duty of insurance brokers that are significant here. First, if the broker is authorized to engage sub-brokers, then the duty extends down the line to the sub-brokers who are engaged to procure insurance. Id. 292 Ill.Dec. at 690-91, 826 N.E.2d at 1126-27. Second, the duty can be breached if a broker fails to disclose information about the insurer that would be material to the insured’s decision to place the insurance with that insurer. Id. 292 Ill.Dec. at 696, 826 N.E.2d at 1132. And third, the duty arises once the insured — or prospective insured — requests specific insurance coverage. Skaperdas v. Country Cas. Ins. Co., 2015 IL 117021, ¶ 37, 390 Ill.Dec. 94, 103, 28 N.E.3d 747, 756 (“Under section 2-2201(a), a duty to exercise ordinary care arises only after coverage is ‘requested by the insured or proposed insured.’ ”).

WCPP relies heavily on AYH Holdings, because that case, too, involved placement of a large, complex risk through a chain of brokers and sub-brokers. WCPP contends that, like the negligent sub-brokers in AYH Holdings, Norman-Spencer was negligent in failing to inform WCPP about the red flags Norman-Spencer discovered while investigating Ward and JRSO. WCPP argues that Norman-Spencer had a duty to WCPP under the IIPLA because NCAIG “directly requested that Norman-Spencer participate as a sub-agent.” Appellants’ Brief, at 8. But this last point is a factual contention that must be supported by evidence.

On appeal, WCPP contends that three pieces of evidence supported this contention: (1) the unexecuted “Memorandum of Understanding” created by Brian Norman memorializing Norman-Spencer’s role in Ward’s JRSO program, as discussed at their November 11, 2011, meeting; (2) a December 2011 conversation between Norman and Littlejohn (of NCAIG) discussing Norman-Spencer accepting a reduced commission for it to be involved in the WCPP insurance placement; and (3) a January 17, 2012 email from Mark Young of York Risk Services to Norman and Little-john regarding WCPP claims that identified Norman-Spencer as the “broker on this program.”

But none of this evidence creates a genuine dispute of material fact about Norman-Spencer’s involvement. We start with the memorandum of understanding. Even if we ignore the fact that the memorandum was not executed, the document as written indicated only Ward’s desire to have Norman-Spencer involved in the WCPP placement. The document does not support WCPP’s argument that NCAIG requested Norman-Spencer’s involvement. And WCPP does not develop an argument that a request from Ward or JRSO would trigger liability for Norman-Spencer under § 2-2201(a). Such an argument would be futile because Ward and JRSO were the providers of the purported insurance; they were not positioned to ask Norman-Spencer to procure insurance for WCPP. But all this is hypothetical, because the undisputed facts show that Ward made it clear that Norman-Spencer was not to be involved with the WCPP placement because Ward did not want to cut Norman-Spencer in on the commissions.

The December 2011 conversation between Norman and Littlejohn discussing Norman-Spencer accepting a reduced commission to be involved in the placement does not establish that there was any request from NCAIG either. At that point, NCAIG was a part of the chain of insurance procurers in the WCPP placement. But by November 1, NCAIG had already agreed to place the WCPP renewal with JRSO. Littlejohn “suggested that he didn’t think it was fair” that Norman-Spencer was not involved in the placement, and clearly, Norman-Spencer would have liked to be involved in the placement. Appellants call this discussion a “negotiation with NCAIG for reduced commission rates for the WCPP renewal,” Reply Brief, at 13 n.5, but that is a misleading characterization, because there were no commissions for Norman-Spencer to reduce. To the extent that Norman-Spencer ever “negotiated” for any commission on the WCPP placement, that negotiation was with Ward, who rejected Norman-Spencer’s attempts to be involved.

Finally, the January 17, 2012 email from Mark Young suggesting that Norman-Spencer was the broker on the WCPP placement was simply a mistake on Young’s part. Young’s confusion about the scope of Norman-Spencer’s involvement in the various components of the JRSO program does not create a dispute of material fact about Norman-Spencer’s actual involvement. WCPP concedes that the message from Young was inaccurate. And in any event, the message does not support the specific argument WCPP makes here: that NCAIG requested that Norman-Spencer become a sub-agent in the chain of procuring agents.

The district court was correct: there is no evidence that any broker in the procurement chain ever requested that Norman-Spencer serve as a sub-broker to procure insurance for WCPP. Norman-Spencer had no duty to WCPP under § 2-2201(a).

WCPP poses an alternative argument: that Norman-Spencer owed a duty not just under § 2-2201(a), but under more general “common law negligence principles.” Appellants’ Brief, at 34 n.4. WCPP argues that “every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act,” id. at 25 (citing Skaperdas, 2015 IL 117021, ¶ 25, 390 Ill.Dec. 94, 28 N.E.3d 747), and that “[a]n insurance producer also owes a duty of care based on the negligence principle of affirmative undertaking, which provides that a person who begins a service for another must exercise reasonable care in performing the service to avoid injury to the beneficiary of the undertaking,” id. (citing Talbot v. Country Life Ins. Co., 8 Ill.App.3d 1062, 1065, 291 N.E.2d 830, 832 (1973)).

WCPP’s alternative argument is neither well developed nor persuasive. None of the cases that WCPP cites involve an insurance agent or broker held to have undertaken a duty in the absence of a request for specific coverage or the equivalent of such a request. For example, in Talbot, the insured filled out an application and paid a premium for life insurance. 291 N.E.2d at 831. But the agent failed to process the application, and the beneficiary’s claim was denied. Id. The Illinois appellate court held that the agent had entered an affirmative undertaking by taking the application and thus had induced the insured’s reliance, and under those circumstances, the agent owed a duty to the applicant. Id. at 832; see also Bovan v. Am. Family Life Ins. Co., 386 Ill.App.3d 933, 940, 325 Ill.Dec. 40, 46, 897 N.E.2d 288, 294 (2008) (“If an insurance agent acts so as to induce detrimental reliance by the proposed insured, the agent thereby undertakes an individual duty not to betray that reliance by his subsequent acts.”). Here, the evidence shows that Norman-Spencer wanted to get in on the WCPP deal, but no one asked it to pi’ocure insurance for WCPP, and it made no affirmative undertaking to do so.

After the enactment of § 2-2201, Illinois courts considering negligence claims against insurance brokers have been reluctant to expand the duties of brokers and agents beyond those articulated in the statute. Generally, a duty to the insured arises only after specific coverage is requested, and courts have not considered negligence claims grounded in more general negligence principles outside the scope of § 2-2201(a)’s language. See Skaperdas, 2015 IL 117021, ¶ 37, 390 IlLDec. 94, 28 N.E.3d 747; see also Office Furnishings, Ltd. v. A.F. Crissie & Co., Ltd., 2015 IL App (1st) 141724, ¶ 25, 398 Ill.Dec. 533, 539-40, 44 N.E.3d 562, 568-69 (“Plaintiff, however, is essentially arguing that by engaging in the aforementioned conduct, Werner created a duty, beyond the exercise of ordinary care outlined in Skaper-das, to verify the accuracy of the information on the insurance application and to review the application with defendants. [The Illinois Supreme Court] made clear in Skaperdas that section 2-2201(a) of the Code imposes on an insurance producer only a duty to exercise ordinary care in renewing, procuring, binding, or placing the coverage specifically requested by the insured.”), petition for leave to appeal denied, 400 Ill.Dec. 653, 48 N.E.3d 1093 (2016); Melrose Park Sundries, Inc. v. Carlini, 399 Ill.App.3d 915, 920, 339 Ill. Dec. 591, 595, 927 N.E.2d 132, 136 (2010) (“To hold Carlini responsible for insurance coverage beyond that requested by Mel-rose Park would extend the duty of ordinary care beyond that expressly defined [in § 2-2201(a) ] by the legislature.”).

We conclude that under Illinois law, and the facts of this case, Norman-Spencer had no duty to WCPP, and the district court properly entered summary judgment in favor of Norman-Spencer on WCPP’s negligence claim.

2. Breach of fiduciary duty

WCPP appears to have abandoned its breach of fiduciary duty claim, because appellants briefed the fiduciary duty issue only in the context of the Myan Management policy. Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal authority. United States v. Hook, 471 F.3d 766, 775 (7th Cir. 2006). In any event, this claim would fail for reasons similar to the negligence claim.

The district court granted Norman-Spencer summary judgment on WCPP’s breach of fiduciary duty claim, applying § 2-2201(b) of the IIPLA. That section narrowly defines the scope of a breach of fiduciary duty claim, limiting such claims to “conduct ... involving] the wrongful retention or misappropriation ... of any money that was received as premiums, as a premium deposit, or as payment of a claim.”

The court concluded that Norman-Spencer could not be liable under this provision because it did not receive any money from the WCPP placement or participate in that placement. We agree. WCPP does not present any evidence showing that Norman-Spencer retained or misappropriated any WCPP funds. Rather, it is undisputed that Norman-Spencer did not receive a commission for the WCPP placement.

C. MGSA’s claims

1. Negligence

MGSA also brought a negligence claim against Norman-Spencer regarding the Myan Management policy. Norman-Spencer was involved in the Myan Management policy; it was one of the 64 backlogged policies that Norman-Spencer issued as part of its administration agreement with Ward. But the policy was bound before Norman-Spencer got involved, and Norman-Spencer received a flat fee for performing certain administrative tasks on all the backlogged policies.

Norman-Spencer’s limited role in the Myan Management policy raises similar questions to those discussed above about whether Norman-Spencer owed a duty to the insured — here, Myan Management. The district court opinion suggests that MGSA’s claim failed for multiple reasons: because Myan Management itself did not request insurance from Norman-Spencer; because none of the brokers in the procurement chain requested insurance from Norman-Spencer; and because none of Norman-Spencer’s actions constituted “renewing, procuring, binding, or placing” the Myan Management policy under § 2-2201(a).

But it is unnecessary for us to consider these possibilities because there is a more obvious defect in this claim. Even if Norman-Spencer had a duty to the “insured” under § 2-2201(a), MGSA could not sustain a claim regarding the Myan Management policy because MGSA was not the insured on that policy. This is clear from the face of the policy, which lists “Myan Management Group” as the insured, not MGSA. Dist. Ct. Dkt. 215-11.

MGSA does not explicitly address this issue in its brief-in-chief, which would be reason enough to consider any objection to that portion of the district court’s ruling waived. See Hook, 471 F.3d at 775. Even overlooking the potential waiver, MGSA fails to show that it is entitled to a trial on this claim.

In appellants’ reply brief, MGSA contends that it qualified as an “insured” because it was acting in the same capacity toward Myan Management as WCPP was acting toward the properties in the WCPP program. But this is belied by the face of the insurance documents: WCPP is listed as the insured on the executed WCPP insurance proposal, whereas MGSA is not listed as the insured on the Myan Management policy. MGSA goes on to say that it “was not acting simply as the Myan Account’s broker; it was acting as an end user, client representative, non-site management entity, and program administrator.” Reply Brief, at 16. But MGSA does not explain how any of these other roles convert it into an “insured” on Myan Management’s insurance contract for purposes of a claim under § 2-2201(a). This undeveloped argument gives no reason to reverse the district court’s judgment on this claim.

MGSA attempts to sidestep § 2-2201(a) entirely by arguing that its negligence claims are based on “common law negligence principles” in addition to § 2-2201(a), which we take to be an argument that Norman-Spencer owed MGSA a duty even if MGSA is not actually the “insured” on the Myan Management policy. MGSA argues that “every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act.” Appellants’ Brief, at 25. As we explained above, Illinois courts have not viewed the duty of insurance brokers so expansively: § 2-2201(a) alone defines the duty of ordinary care regarding the procurement of insurance in Illinois. MGSA does not fall within that definition because it is not the insured, and appellants point us to no case in which an insurance broker owed a duty to a similarly situated non-insured.

Finally, MGSA argues that because it absorbed the additional cost in obtaining replacement insurance rather than passing those costs onto Myan Management, it “bore the costs on behalf of another and, in equity, should receive reimbursement for the payment of such costs.” Reply Brief, at 17 (citing Remsen v. Midway Liquors, Inc., 30 Ill.App.2d 132, 143-44, 174 N.E.2d 7 (1961) (discussing subrogation agreement in car insurance policy)). This argument is waived, both because MGSA did not raise it until its reply brief and because MGSA does not explain why subrogation principles should apply in this instance.

2. Breach of fiduciary duty

MGSA also brought a breach of fiduciary duty claim against Norman-Spencer for wrongfully retaining money it received for issuing the Myan Management policy. MGSA cannot bring a claim under § 2-2201(b) of the IIPLA because Norman-Spencer did not misappropriate MGSA’s funds. Because Myan Management was the insured on that policy, Myan Management’s funds paid for the premium, not MGSA’s — MGSA merely forwarded the premium payment using Myan Management’s funds.

D. MC Risk’s and NCAIG’s cross-claims

MC Risk and NCAIG assigned their respective cross-claims for contribution and indemnity against Norman-Spencer to WCPP and MGSA. Because neither WCPP nor MGSA can sustain direct claims against Norman-Spencer, the cross-claims for contribution and indemnity also fail.

III. Conclusion

The judgment of the district court is AFFIRMED.

      . MGSA and WCPP obtained entries of default against Ward and JRSO for their failure to appear and defend. MGSA and WCPP reached a settlement agreement with MC Risk and NCAIG in January 2014. MC Risk and NCAIG assigned their respective cross-claims for contribution and indemnity against Norman-Spencer to MGSA and WCPP.

      . In both orders, the district court granted Norman-Spencer summary judgment on MC Risk’s and NCAIG’s cross-claims for contribution and indemnity that had been assigned to appellants, because Norman-Spencer was not liable on any of appellants’ direct claims.

      . Plaintiffs-appellants brought their claims under Illinois law, and Norman-Spencer does not dispute that Illinois law governs their claims.

      . In the fact section of their brief-in-chief, appellants state that NCAIG "directly requested that Norman-Spencer participate as a sub-agent.” Appellants’ Brief, at 8. Appellants’ cite for this proposition the expert report of Scott Stein, Dist. Ct. Dkt. 199-17. But appellants do not cite or rely on this report in the argument section of their brief. Our review of the report shows that the specific page cited by appellants, id. at 9, does not contain any suggestion that NCAIG directly requested Norman-Spencer’s involvement as a sub-agent, nor does the document as a whole explain when or how NCAIG requested Norman-Spencer’s involvement. And, of course, this is a factual proposition that would not likely be within the personal knowledge of an expert.

      . To the extent that MGSA brought a negligence claim based on the WCPP policy, the district court concluded that its order dismissing WCPP's claims applied to any claims MGSA might have brought regarding the WCPP policy as well. We agree with that conclusion, and affirm the district court’s ruling on those claims for the same reasons discussed above regarding WCPP’s claims.

      . The parties agree on this point, but they do not point to the actual WCPP insurance policy in the record.


source: Caselaw Access Project

author: HAMILTON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas CURETON, Defendant-Appellant.
    Nos. 15-3575 & 15-3581
    United States Court of Appeals, Seventh Circuit.
    Argued November 16, 2016
    Decided January 5, 2017

      Nicholas J. Biersbach, Attorney, Office of the United States Attorney, Civil Division, Fail-view Heights, IL, for Plaintiff-Appellee.
    Johanna M. Christiansen, Attorneys, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
    Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

Thomas Cureton appeals his conviction for using a firearm during a crime of violence. He contends that the crime of making a ransom demand in violation of 18 U.S.C. § 875(a) does not qualify as a “crime of violence” under 18 U.S.C. § 924(c). Because Cureton did not raise this challenge in the district court, we examine it through the demanding lens of plain-error review. We see no plain error in interpreting the federal crime of demanding ransom as necessarily including at least an implied threat of physical force. Because a crime that includes a threat of physical force as an element qualifies as a crime of violence, we affirm.

I. Factual and Procedural Background

While Thomas Cureton was under investigation for dealing crack cocaine, he used a gun to demand ransom. A roommate of his, Ashley Lawrence, failed to bring him some money he expected. Cureton tied her up, choked her, beat her, pointed a gun to her head, and made her call family members to ask for ransom money. Lawrence’s grandfather agreed in a telephone call to wire Cureton $4,500. The police were waiting for Cureton at his home when he returned there with Lawrence.

A jury convicted Cureton on four federal charges: one count of interstate communication of a ransom demand or request under 18 U.S.C. § 875(a), one count of attempted extortion under 18 U.S.C. § 1951(a), and two counts of possessing a firearm during a crime of violence under 18 U.S.C. § 924(c). The first § 924(c) charge, Count 2, was based on the ransom demand. The second one, Count 4, was based on attempted extortion. In the district court, this case (Case No. 3:10-CR-30200-DRH-l or Case 200) was consolidated for trial and sentencing with another case against Cureton involving drug possession (Case No. 3:10-CR-30106-DRH-1 or Case 106).

At sentencing, the guideline range in the drug case (Case 106) was 360 to 720 months; the guideline range for the ransom demand and attempted extortion (Case 200) was 240 months, the statutory maximum sentence. The district court imposed a sentence of 360 months for the drug counts in Case 106 to run concurrently with a 240 month sentence for the ransom and attempted extortion in Case 200. The court then added consecutive sentences in Case 200 for the convictions on the two § 924(c) counts — 84 months on Count 2 and 300 months on Count 4. That increased the total sentence from 360 months to 744 months (62 years).

In his first appeal, United States v. Cureton, 739 F.3d 1032, 1039-45 (7th Cir. 2014) (Cureton I), this court ruled that two § 924(c) charges against Cureton for a single course of conduct involving only one use of one firearm were multiplicitous. We vacated Cureton’s sentence and remanded for resentencing. 739 F.3d at 1045. On remand the district court sentenced Cure-ton to 444 months (37 years) in prison, eliminating the 300 months originally imposed on Count 4 in Case 200, the § 924(e) charge based on attempted extortion.

Cureton appealed again. We vacated the sentence again because the district court set. conditions of supervised release without complying- with United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). United States v. Cureton, Nos. 14-2576 & 14-2586 (7th Cir. June 30, 2015) (Cureton II). On remand the district court imposed the same 444-month sentence. Cureton has now appealed for a third time.

II. Analysis

Cureton' challenges only his § 924(c) conviction on Count 2. That conviction is based on his having demanded a ransom and accounts for 84 months of his 444month sentence. Section 924(c)(1)(A) applies to the use of a firearm during or in connection with the commission of a “crime of violence.” . ,

An offense may qualify as a “crime of violence” under § 924(c) in one of two ways."First, under the “elements” clause, an offense qualifies if it is a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Second, under the “residual” clause, the predicate offense qualifies if it is a felony that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B).

Cureton’s primary argument on appeal is that the residual clause is unconstitutionally vague and thus cannot render his ransom-demand offense a “crime of violence.” He contends that Johnson v. United States, 576 U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that a similar residual clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e), is unconstitutionally vague, applies to render § 924(c)(3)(B) unconstitutional as well.

We recently adopted the position that Cureton advances. In United States v. Cardena, 842 F.3d 959, 995-96 (7th Cir. 2016), we described § 924(c)’s residual clause as “virtually indistinguishable from the clause in Johnson that was found to be unconstitutionally vague.” We also explained that our decision in United States v. Vivas-Ceja, 808 F.3d 719, 721 (7th Cir. 2015), invalidated the residual clause found in 18 U.S.C. § 16(b), which is identical to the clause in § 924(c)(3)(B). Accordingly we concluded that § 924(c)(3)(B) suffers from the same constitutional infirmities that invalidated the residual clauses in Johnson and Vivas-Ceja. Cardena, 842 F.3d at 996.

Even without the residual clause, however, Cureton loses under the elements clause of 18 U.S.C. § 924(c)(3)(A). The issue is whether the ransom-demand statute, 18 U.S.C. § 875(a), “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” See Cardena, 842 F.3d at 996, citing Dawkins v. United States, 809 F.3d 953, 954 (7th Cir. 2016).

The government appears to accept Cureton’s assertion on appeal that the ransom-demand statute does not include the threat of force as an element. That apparent concession does not end our inquiry. Cureton did not challenge his § 924(c) conviction in the district court on this ground, so we review the district court’s judgment on the § 924(c) conviction for plain error. United States v. Seals, 813 F.3d 1038, 1045 (7th Cir. 2016). To show plain error, Cureton must show us that “(1) there was error, (2) it was plain rather than subject to reasonable dispute, (3) it affected his substantial rights, and (4) the court should exercise its discretion to correct the error because it seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Id.

Cureton has not shown that the district court plainly erred. Here is the statute: “Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 875(a). To prevail on plain-error review, Cureton must show that it is plain that “a demand or request for ransom” does not necessarily involve a threat of violence against the kidnapped person if payment is not made.

We think the opposite is rather plain: a demand or request for ransom necessarily includes at least an implied threat that the kidnapper will use force against the captive if the demand is not satisfied. The content of the implied threat “Or else!” in a ransom demand is understood as a threat of violence. Otherwise a kidnapper’s demand or request for a “ransom” would be meaningless.

In any event, Cureton loses on plain-error review if it is at least debatable whether the statute “has as an element the ... threatened use of physical force against the person ... of another.” 18 U.S.C. § 924(c)(3)(A). See, e.g., United, States v. Hosseini, 679 F.3d 544, 552 (7th Cir. 2012) (no plain error where relevant legal issue was unsettled). Cureton has not cited case law that gives substantial support, let alone definitive support, to his side of the debate. Cureton cites United States v. Brika, 487 F.3d 450 (6th Cir. 2007), but that case does not help him. There the Sixth Circuit recognized that a person may violate § 875(a) even without participating in an actual kidnapping. 487 F.3d at 455-56. We assume that is correct, but the force that makes § 875(a) a crime of violence is not force that might or might not be used to capture someone but the force threatened if a ransom demand is not met. See United States v. Heller, 579 F.2d 990, 998 (6th Cir. 1978) (“In a kidnapping case, the threat to the kidnapped person makes a ‘demand’ for ‘ransom’ extortionate.”). Section 875(a) does not require proof that the person making the threat be able to or actually follow through on the implied threat of violence. The same applies when a violation of § 875(a) is used as the predicate for a conviction under § 924(c).

The cases we are aware of point toward treating a ransom demand as necessarily involving at least an implied threat of violence. Section 875(a) has been the subject of few reported decisions, but convictions under it have involved threats of deadly violence. See, e.g., United States v. Sanchez, No. 89-2674, 1991 WL 17993, *1 (7th Cir. Feb. 15, 1991) (defendant convicted under § 875(a) after threatening to kill kidnapped person if ransom not paid); United States v. Escobar-Posado, 112 F.3d 82, 83 (2d Cir. 1997) (same); United States v. Seale, 20 F.3d 1279, 1281 (3d Cir. 1994) (same); Chen v. United States, No. 01-787, 2005 WL 1869472, *1 (E.D. Pa. July 27, 2005) (same); United States v. Lopez-Flores, 592 F.Supp. 1302, 1304 (W.D. Tex.1984) (same). We see no plain error in the district court’s judgment treating Cure-ton’s crime of demanding a ransom as a “crime of violence” under the elements clause of § 924(c)(3)(A). See Seals, 813 F.3d at 1045.

Even if this analysis were wrong, there is a second reason that Cureton cannot show plain error: retaining the § 924(c) conviction based on the ransom demand does not affect his substantial rights. See United States v. Lawson, 810 F.3d 1032, 1040 (2016) (showing an effect on substantial rights requires demonstrating that error “affected the outcome of the district court proceedings”).

Cureton contends that the alleged error was harmful because the § 924(c) conviction added 84 months to the 360 months he is serving on his other convictions. The problem with this contention is that even if we vacated the § 924(c) sentence, the guideline range of 360 to 720 months for his remaining offenses in his two consolidated cases would remain the same. In addition, there is no doubt that Cureton as a matter of fact threatened his victim with force with a gun literally to her head. The district court is perfectly entitled to consider that fact in exercising its sentencing discretion. See 18 U.S.C. § 3661. With an unchanged guideline range, the district court could readily impose the same 444-month sentence that it has already ruled twice is appropriate. Cureton gives us no reason to believe the district court would do anything different if we were to remand once more. Because that sentence would be within the guideline range, this court would presume it to be reasonable. United States v. Dachman, 743 F.3d 254, 263 (7th Cir. 2014). Under these circumstances, Cureton could not show that any supposed error was harmful, as is his burden. See Cardena, 842 F.3d at 998; Lawson, 810 F.3d at 1040.

We AFFIRM the defendant’s conviction for using a firearm during the commission of a crime of violence, namely, interstate communication of a ransom demand under 18 U.S.C. § 875(a).

      . In some contexts one might speak of "ransoming” a prisoner, such as a prisoner of war, where the alternative to payment might be continued imprisonment rather than violence or death. The modem cyber-scourge of “ransomware" threatens interference with computer systems, not physical violence against a person. In this criminal law context of kidnapping, though, it is surely very rare for kidnappers to signal they are willing to hold their victims indefinitely without harming them if a ransom demand is not met. The threat of violence, explicit or implicit, is why kidnapping is treated as a crime of violence as a matter of law. See, e.g., United States v. Morgan, 748 F.3d 1024, 1035 (10th Cir. 2014); United States v. Patino, 962 F.2d 263, 267 (2d Cir. 1992); see also United States v. Godinez, 998 F.2d 471 (7th Cir. 1993). For purposes of comparison, consider blackmail, where the threat is not physical harm but harm to someone's reputation if a demand is not met. See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005) (state robbery statute requiring use or threat of force or "putting any person in fear” required fear of physical injury, not injury to reputation).


author: POSNER, Circuit Judge.

text:
    Nancy J. PINNO, Petitioner-Appellant, v. Patti WACHTENDORF, Warden, Respondent-Appellee; Travis Seaton, Petitioner-Appellant, v. Judy P. Smith, Warden, Respondent-Appellee.
    No. 15-3375, No. 15-3495
    United States Court of Appeals, Seventh Circuit.
    Argued November 29, 2016
    Decided January 5, 2017

      Andrew P. LeGrand, Bennett J. Raw-icki, Attorneys, Gibson Dunn & Crutcher LLP, Dallas, TX, for Petitioner-Appellant (Case No. 15-3375).
    Christopher D. Donovan, Attorney, Pruhs & Donovan, S.C., Milwaukee, Wl, for Petitioner-Appellant (Case No. 15-3495).
    Daniel J. O’Brien, Assistant Attorney General, Office of the Attorney General, Madison, WI, for Respondent-Appellee (Case Nos. 15-3375 and 15-3495).
    Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

In Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), the Supreme Court held that the right of a criminal defendant to a public trial, a right conferred by the Sixth Amendment, extends to the voir dire. Id. at 213-14, 130 S.Ct. 721. In the present case both petitioner-appellants argue that this right was violated by the decision of the state trial judge (the same judge in both cases) to forbid members of the public to attend the voir dire phase of the petitioners’ trials in a Wisconsin state court that ended in their being convicted.

After the Wisconsin Supreme Court, rejecting the petitioners’ Sixth Amendment argument, affirmed their convictions and sentences, they asked the local federal district court for habeas corpus. Both argued that they were, entitled to a new trial because their Sixth Amendment rights had been violated. The district judge (the same judge in both habeas corpus proceedings) rejected their claims, awarding judgment for the respondents, who are the wardens of the prisons in which the petitioners are serving the sentences imposed on them by the state judiciary.

Pinno had been convicted of assisting in the mutilation of a corpse and interference with police. She had assisted her son in secretly disposing of the body of his girlfriend, whom the son had murdered a few weeks earlier. Pinno’s assistance consisted of transporting the corpse-in her ear to a friend’s house, where her son and a friend of hers burned the body. They then drilled a hole in the ice on a nearby lake and dumped the ashes through the hole, making it impossible for the police to recover any of the body of the murdered woman. For these offenses Pinno was sentenced to eight and a quarter years in prison to be followed by five years of supervised release.

But that gets us ahead of our story, which is focused on the trial, indeed the earliest stage of the trial. The trial judge called for a very large jury pool — a pool of more than 80 prospective jurors. He wanted to assure that enough seats were available for all the prospective jurors to be seated, and he also wanted to prevent members of the public, who would be seated in the audience section of the courtroom, from influencing the jury by remarks or facial expressions. He considered those to be dangers because the case, with its gruesome and bizarre facts, had attracted a great deal of publicity.

So before the prospective jurors entered the courtroom the judge ordered the spectators to leave, and the door to the courtroom to be locked until all the prospective jurors were seated. After they were seated the door was unlocked and members of the public were able to enter, though it’s unclear how many entered, or could enter since the courtroom was crowded with prospective jurors and the judge had announced beforehand that he <£want[ed] no one else in here during the entire voir dire process until the jury is selected.” Despite that admonition, since the door to the courtroom was open during the voir dire some members of the public — how many we don’t know — may have entered, and stayed to observe the voir dire.

An alternative way of handling the crowded-conditions problem would have been to accommodate the members of the public in a different room in the courthouse, where they could watch the trial on a television screen. But no one suggested doing that; nor have we been told whether a suitable room and the necessary equipment existed.

We also don’t know how many, if any, members of the public were in the courtroom during the voir dire. But we’ll give Pinno the benefit of the doubt and assume there were too few to make the voir dire public within the meaning of the Sixth Amendment’s public-trial right. Members of the public, most importantly friends, family, or other actual or potential supporters of a defendant, may be able from observing the voir dire to learn things that may help the defense — learn for example that members of the jury panel who end up being selected for the jury are visibly hostile to the defendant, glare at her, yawn and doze, or that the questions asked the prospective jurors by the judge or the prosecutor seem to invite them to regard the defendant as an evil, criminal person. These insights absorbed by the friends of the accused may help to strengthen her defense. Conceivably the presence of a defendant’s supporters may also deter any impropriety by the prosecutors or judge, but this seems unlikely because the prosecutors and judge probably wouldn’t know whether or which members of the audience were aligned with the defendant.

But the problem for Pinno is that her lawyers did not object to the public’s limited access to the trial at the voir dire stage. Pinno calls that ineffective assistance of counsel, a separate ground for a new trial. But it cannot be presumed, and has not been shown in Pinno’s case, that the failure of a defendant’s lawyers to insist on ample seating space for the public during voir dire evidenced ineffective assistance prejudicial to the client. It may have been neither ineffective nor prejudicial, for it might well be in the defendant’s interest not to have members of the public, as distinct from family members, friends, and other supporters, present for the voir dire. A tidal may attract members of the public because they’re hostile to rather than supportive of the defendant. That might have been a serious problem for Pinno, given the grotesque character of her crime.

The experience of the defendant in our other case, Seaton, was virtually identical to Pinno’s, though he was convicted of a different and even more serious crime— first-degree reckless homicide: he had punched a person, and the person had died later that day as a result of the injury caused by the punch and the victim’s resulting fall to the ground. Though Seaton’s crime was less grotesque than Pinno’s, it was homicide and would hardly have endeared him to the members of the public who attended the trial. Indeed, whereas he had killed a person, Pinno had merely assisted in the destruction of a corpse.

Whether the petitioners benefited or were harmed by the exclusion of spectators from the voir dire phase of the trial, their lawyers forfeited their clients’ right to an audience by failing to object to the judge’s ruling excluding the audience in whole or part. So the Wisconsin Supreme Court determined, and we are obliged to defer to that determination because it did not result in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

The petitioners’ current lawyers, however, argue that lawyers can’t forfeit a client’s Sixth Amendment’s right to a public trial (including a public voir dire stage of the trial); the right can only be waived— that is, there must be an affirmative statement either by the defendants themselves or by their lawyers acting under instruction from the clients that they do not want members of the public to be present in the courtroom, whether during just the voir dire or at other stages of the trial as well. To waive the right the clients would have to tell their lawyers to tell the judge that their clients were waiving in whole or part their public-trial right. But in the two cases before us the clients evidently agreed with their lawyers not to seek the admission of an audience during the voir dire stage. Nor is such agreement surprising, for as we said it’s entirely plausible that a criminal defendant will be hurt rather than helped by having the public present at any stage of his or her trial. •

The petitioners cite our opinion in Walton v. Briley, 361 F.3d 431, 433 (7th Cir. 2004), where we said that a failure by the defendant’s (Walton’s) lawyer to object to barring the public from attending the trial did not constitute a waiver by Walton of his Sixth Amendment right to a public trial. But that can’t save the petitioners in the present case. For section 2254(d) authorizes a federal court to grant a state prisoner’s habeas- corpus petition only if the state court’s decision of which the prisoner is complaining was contrary to U.S. Supreme Court precedent; it is not enough that the state court’s decision is contrary to one of our decisions.

Walton, moreover, was a special case; and judicial opinions must be interpreted in context. In an effort to expedite Walton’s trial the trial judge had conducted the first two trial sessions, at which most of the prosecution’s evidence was presented (so they were critical stages of the trial), late in the evening — so late that the courthouse was locked. The consequence was that members of the public, among them Walton’s fiancée, were barred from attending the sessions. The judge had made up his mind about an audience in the courtroom: there wasn’t going to be one, and so an objection to the judge’s decision wasn’t going to do' Walton any good in his trial. And thus his Sixth Amendment right had been violated.

Neither of the present cases is like Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), either, where the prosecutor asked for exclusion of the public from a portion of the trial proceedings and the defendant’s counsel objected. There is no evidence in either case before us that anyone objected to the initial exclusion of the public from the courtroom to enable the entire jury panel to be seated. Given the number of prospective jurors to be seated the trial judge may have had no option but to exclude the public until all the panel members were seated. Maybe he didn’t need so many prospective jurors for the voir dire,-but that is not argued.

And so the judgments of the district court in these two eases must be affirmed. But we do wish to comment briefly on the length of the parties’ briefs. They total 250 pages, of which 31 pages consist of the district judge’s opinion (one opinion for the two cases). The other 219 pages are the parties’ arguments. There is no justification for such verbosity. These two consolidated cases are simple and straightforward. Our opinion is only seven pages long; and while such compression is not to be expected of the parties, they should have needed, and used, no more than 100 pages at the most to present their claims fully.

AFFIRMED