Printable Case Digests — April 21-25, 2014

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Wisconsin Law Journal’s Case Digests, April 21-25, 2014

Wisconsin Supreme Court

Civil
Constitutional Law — due process — punitive damages

A $1 million punitive damage award for bad faith by an insurance company violates due process, where the damages are less than $30,000.

“We conclude, in consideration of the case law, that the appropriate amount of punitive damages in this case is $210,000. Comparing the amount of this award to the $69,738.49 amount of compensatory and potential damages results in a ratio of approximately 3:1, below the ratio we upheld in Trinity, and just below the constitutional ‘line’ mentioned by the Supreme Court in BMW, 517 U.S. at 581, and Haslip, 499 U.S. at 23. Because ‘[t]he precise award in any case, of course, must be based upon the facts and circumstances of the defendant’s conduct and the harm to the plaintiff,’ Campbell, 538 U.S. at 425, we conclude that this amount effectively punishes First American’s misconduct, while acknowledging that its conduct did not rise to level of egregiousness found in prior punitive damages cases.”

Reversed and Remanded.

2011AP1514 Kimble v. Land Concepts Inc.

Ziegler, J.

Attorneys: For Appellant: Leair, Rebecca E., Waukesha; Nielsen, J. Bushnell, Waukesha; Petitjean, John R., Green Bay; For Respondent: Weber, David H., Green Bay; Schmidt, T. Wickham, Green Bay

Wisconsin Court of Appeals

Civil
Trusts and Estates — conflicts of interest

Eric and Todd Fanetti appeal a judgment that dismissed their claims against Marilyn J. Fanetti and the Donald A. Fanetti and Marilyn J. Fanetti 2004 Revocable Trust (the Revocable Trust). Eric and Todd argue that Marilyn had an impermissible conflict of interest in her role as both trustee and beneficiary of the Revocable Trust, and that she breached her fiduciary duties as trustee by making decisions that benefitted her own interests, to the other beneficiaries’ detriment. Eric and Todd also argue the circuit court erred when it “accepted for issue preclusion purposes a finding of the Probate Court as to the allocation of assets[.]” Finally, Eric and Todd argue the court erred by awarding Marilyn and the Revocable Trust damages on their counterclaims. For the reasons set forth below, we affirm. This opinion will not be published.

2013AP1870 Fanetti v. Fanetti et al.

Dist III, Dunn County, Lundell, J., Per Curiam

Attorneys: For Appellant: Hunt, Kay N., Minneapolis; Anderson, Steven M., Eau Claire; For Respondent: Moore, Terry, Eau Claire; Finn, Stephanie L., Eau Claire

Wisconsin Court of Appeals

Civil
Debtor-creditor — credit card debt

Richard Denis, pro se, appeals a summary judgment granted to Riverwalk Holdings Ltd, arising out of amounts owed on a consumer credit card account. We affirm. This opinion will not be published.

2013AP1014 Riverwalk Holdings Ltd v. Denis

Dist III, Brown County, Zuidmulder, J., Per Curiam

Attorneys: For Appellant: Denis, Richard S., pro se; For Respondent: Hicks, William C., Minneapolis; Link, Michael Richard, Plymouth, Minn.

Wisconsin Court of Appeals

Civil
Family — child support — modification

Julie Rhoades, pro se, appeals a February 2013 postdivorce order modifying child support. Rhoades argues the court improperly deviated from the support percentage guidelines because (1) the court failed to set forth a proper rationale, (2) her ex-husband Guy Stillwell withdrew his competing motion to modify support, and (3) Stillwell failed to provide complete and accurate financial information. Stillwell, pro se, cross-appeals, arguing the court lacked jurisdiction to enter the order because the parties lived in Minnesota and he had filed a support motion in a Minnesota court. We conclude the court erred by failing to set forth a proper rationale for deviating from the support guidelines. Further, we reject Stillwell’s cross-appeal. Accordingly, we reverse and remand for the circuit court to appropriately exercise its discretion concerning modification of child support, retroactive to the filing of Stillwell’s initial October 2011 motion to reduce support. We affirm regarding the court’s determination it had jurisdiction. This opinion will not be published.

2013AP496 In re the marriage of: Stillwell v. Stillwell

Dist III, St. Croix County, Cameron, J., Per Curiam

Attorneys: For Appellant: Stillwell, Julie K., pro se; For Respondent: Stillwell, Guy W., pro se

Wisconsin Court of Appeals

Civil
Municipalities — fracking

It was not arbitrary for a county to grant a conditional use permit to engage is fracking.

“We reject O’Connor’s argument for three reasons. First, O’Connor does not cite any legal authority for the proposition that a board of adjustment may not grant a CUP to a partnership without first ascertaining the partners’ identities. Second, O’Connor does not cite any evidence that he, or anyone else, raised concerns regarding the lack of information about R&J’s partners during the Board’s consideration of either CUP application. Third, although O’Connor asserts it ‘may prove impossible’ to enforce the CUP’s conditions, the Board argues Buffalo County’s zoning ordinance provides several enforcement mechanisms that do not require service of process, including the right to inspect the premises to ensure compliance and the right to investigate complaints. In addition, Glacier Sands notes that one of the CUP’s conditions allows the county to revoke the CUP for noncompliance. O’Connor does not respond to these arguments that other adequate enforcement mechanisms exist, and unrefuted arguments are deemed conceded. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis.2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). O’Connor has not met his burden to overcome the presumption of correctness by showing the Board acted arbitrarily, unreasonably, or outside its jurisdiction.”

Affirmed.

Recommended for publication in the official reports.

2013AP2097 O’Connor v. Buffalo County Board of Adjustment

Dist. III, Buffalo County, Boles, J., Stark, J.

Attorneys: For Appellant: Ekman, John, Minneapolis; Vehrs, Karla, Minneapolis; For Respondent: Stadler, Ronald S., Milwaukee; Graf, Aaron J., Milwaukee

Wisconsin Court of Appeals

Civil
Prisons — custodial classifications

Harlan Richards appeals an order that denied his petition for certiorari review of a change in the security level of his custodial classification. We affirm. This opinion will not be published.

2013AP1386 State ex rel. Richards v. Jess

Dist IV, Dane County, Foust, J., Per Curiam

Attorneys: For Appellant: Richards, Harlan, pro se; For Respondent: Potter, Kevin C., Madison; Russomanno, Anthony, Madison

Wisconsin Court of Appeals

Civil
Remedies — injunctions

Jeff Barnhardt appeals an injunction order granted in favor of Brenda Nolen, and the denial of a motion for reconsideration. Barnhardt argues the circuit court erred by granting the injunction, and by denying his request for a new trial based on newly discovered evidence. He also contends that the court erred by not allowing additional evidence at the reconsideration hearing. We reject Barnhardt’s arguments and affirm. This opinion will not be published.

2012AP2289 Nolen v. Barnhardt

Dist IV, Dane County, Sumi, J., Per Curiam

Attorneys: For Appellant: Davey, Bruce M., Middleton; Goldman, Lisa, Middleton; For Respondent: Nolen, Brenda S., pro se

Wisconsin Court of Appeals

Civil
Municipalities — raze orders

The City of Beloit appeals an order permanently enjoining it from enforcing a condemnation order issued June 2, 2011, against property owned by Iyad Nabham at 609 Portland Avenue, Beloit. The circuit court concluded that the code violations cited by the City and the assessed value of the property were pretextual so that the City could eliminate the property under Wis. Stat. § 66.0413(1)(b)1. (2011-12), without having to compensate Nabham. The City argues that the circuit court’s conclusion is not based on the evidence or proper considerations. We conclude that the circuit court’s findings are based on a credibility assessment and those findings support a determination that the condemnation order was unreasonable. We affirm the injunction order. This opinion will not be published.

2012AP1997 Nabham v. City of Beloit

Dist IV, Rock County, McCrory, J., Per Curiam

Attorneys: For Appellant: Joos, Melissa Brooke, Beloit; For Respondent: Koepke, James J., Beloit; Kimes, Rodney W., Beloit

Wisconsin Court of Appeals

Criminal
2nd-degree reckless homicide — self-defense — defense of others

Andrew Neevel appeals a judgment convicting him of second-degree reckless homicide and an order denying his motion for a new trial.

He argues: (1) the trial court erroneously prohibited Neevel from presenting “McMorris evidence” regarding the victim’s history of domestic violence; (2) the court improperly refused to instruct the jury on defense of others; (3) the prosecutor misstated the law regarding self-defense, preventing the real controversy from being tried; and (4) the cumulative effect of these alleged errors justifies a new trial. We reject these arguments and affirm the judgment and order. This opinion will not be published.

2012AP2569-CR State v Neevel

Dist IV, Iowa County, VanDeHey, J., Per Curiam

Attorneys: For Appellant: Jurek, Anthony J., Middleton; For Respondent: Nelson, Larry E., Dodgeville; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal
Sentencing — sentence credit

Jamie L. Williams appeals an order denying him sentence credit for 118 days that he spent in custody before his sentencing in this case.

Because Williams received credit for the 118 days toward his service of a reconfinement term imposed in another case, and because he is not entitled to duplicative credit against his consecutive sentence in this case, we affirm. This opinion will not be published.

2013AP1312-CR State v. Williams

Dist I, Milwaukee County, Watts, J., Per Curiam

Attorneys: For Appellant: Williams, Jamie L., pro se; For Respondent: Loebel, Karen A., Milwaukee; Noet, Nancy A., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Robert Anthony Martinez appeals the judgment, entered after a court trial, convicting him of one count of failure to comply with an officer’s attempt to take a person into custody and one count of misdemeanor disorderly conduct, domestic abuse, contrary to Wis. Stat. §§ 946.415(2), 947.01(1) and 968.075(1)(a) (2011-12). Martinez also appeals the order denying his postconviction motion alleging that his trial counsel was ineffective. He claims trial counsel gave him ineffective assistance during plea bargaining, which resulted in Martinez rejecting a favorable plea offer. We disagree and affirm. This opinion will not be published.

2013AP1155-CR State v. Martinez

Dist I, Milwaukee County, Triggiano, J., Per Curiam

Attorneys: For Appellant: Betthauser, Charles David, Black River Falls; For Respondent: Loebel, Karen A., Milwaukee; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance — inattentive jurors

Tylo Lamont Ward appeals a judgment of conviction entered after a jury found him guilty of one count of first-degree sexual assault of a child. He also appeals an order denying his postconviction motion without a hearing. He claims that the trial court erred by refusing to discharge a juror who allegedly slept during the trial. He further claims that his trial counsel was ineffective for failing to pursue the issue, either by requesting that the allegedly inattentive juror serve as the alternate or by otherwise seeking to prevent the juror from deliberating. Because the trial court found that the evidence did not support a conclusion that a juror was sleeping, and because Ward failed to present sufficient allegations in his postconviction motion to earn an evidentiary hearing on his claim that trial counsel was ineffective, we affirm. This opinion will not be published.

2013AP1904-CR State v. Ward

Dist I, Milwaukee County, Brostrom, Rothstein, JJ., Per Curiam

Attorneys: For Appellant: Holzman, Michael S., Waukesha; For Respondent: Loebel, Karen A., Milwaukee; Wellman, Sally L., Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — arrest

Dean Blatterman appeals a judgment of conviction for operating a motor vehicle while intoxicated in violation of Wis. Stat. § 346.63(1)(a). Blatterman argues that the circuit court erred in denying his motion to suppress evidence of intoxication because, he asserts, the police subjected him to a “de facto” arrest that was unsupported by probable cause when they transported him outside the vicinity of the original stop. I conclude that Blatterman was transported outside the vicinity of the stop, and I therefore reverse. Judgment reversed and cause remanded. This opinion will not be published.

2013AP2107-CR State v. Blatterman

Dist IV, Dane County, Hanrahan, J., Kloppenburg, J.

Attorneys: For Appellant: Bednarek, Jonas B., Madison; For Respondent: Weber, Gregory M., Madison; Bowland, Joshua M., Madison; Lippert, Jordan, Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — probable cause

Jonathan Berger appeals from judgments of conviction, arguing that the circuit court erred when it denied his motion to suppress evidence on charges against him for operating a motor vehicle while intoxicated (OWI) and with a prohibited blood alcohol concentration. He contends the police officer who arrested him did not have probable cause to do so and thus violated his right to be free from unreasonable seizures under the Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution. We disagree and affirm. This opinion will not be published.

2013AP2804 City of Oshkosh v. Berger

Dist II, Winnebago County, Gritton, J., Gundrum, J.

Attorneys: For Appellant: Piel, Walter Arthur, Jr., Milwaukee; For Respondent: Lorenson, Lynn A., Oshkosh; Priebe, Bradley J., Appleton

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — prior convictions — collateral attacks

The State appeals from a circuit court order granting Casey Schwandt’s motion collaterally attacking a prior conviction for operating a motor vehicle while intoxicated (OWI). We reverse and remand for reinstatement of Schwandt’s judgment of conviction for OWI-third offense and his sentence on that conviction. This opinion will not be published.

2013AP2775-CR State v. Schwandt

Dist II, Green Lake County, Pfitzinger, J., Gundrum, J.

Attorneys: For Appellant: Weber, Gregory M., Madison; Collins, Winn S., Madison; For Respondent: Johnson, Erik C., Montello

Wisconsin Court of Appeals

Criminal
Criminal Procedure — self-defense

Rejecting his claim of self-defense, a jury found Sean Forester-Hoare guilty of first-degree intentional homicide with a dangerous weapon and two counts of first-degree recklessly endangering safety. We reject his appellate arguments and affirm the judgment. This opinion will not be published.

2013AP1508-CR State v. Forester-Hoare

Dist II, Racine County, Torhorst, J., Per Curiam

Attorneys: For Appellant: York, Katie R., Madison; For Respondent: Chiapete, W. Richard, Racine; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal
Sentencing — accurate information

Jameil A. Garrett appeals his judgment of conviction and the circuit court’s denial of his postconviction motion, contending that the court sentenced him on inaccurate information, namely “the unwarranted assumption Mr. Garrett acted with an intent to kill” the victim. Garrett has failed to convince us that the court’s “assumption” was inaccurate. We affirm. Not recommended for publication in the official reports.

2013AP1178-CR, 2013AP1179-CR State v. Garrett

Dist II, Kenosha County, Rossell, J., Gundrum, J.

Attorneys: For Appellant: Paulson, Randall E., Milwaukee; For Respondent: Wren, Christopher G., Madison; Zapf, Robert D., Kenosha

Wisconsin Court of Appeals

Criminal
Search and Seizure — exclusionary rule – good faith exception

Where the officers who placed the GPS device on the defendant’s vehicle did so in objectively reasonable reliance on then-existing precedent, the good faith exception applies and renders exclusion of the evidence an inappropriate remedy.

“In this case, at the time that the officers installed the GPS device on Oberst’s car, binding appellate precedent in Wisconsin held that ‘no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use the device to track the vehicle while it is in public view.’ State v. Sveum, 2009 WI App 81, ¶19, 319 Wis. 2d 498, 769 N.W.2d 53 (Sveum I). Because we determined that such circumstances did not constitute a search, we found police did not require a warrant prior to the installation of a GPS device. Id., ¶6. Although Jones overruled this holding from Sveum I while Oberst’s case was pending before the trial court, ‘the good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court.’ Dearborn, 327 Wis. 2d 252, ¶4. The good faith exception to the exclusionary rule applies in this case, and the trial court properly denied Oberst’s motion to suppress.”

Affirmed.

Recommended for publication in the official reports.

2013AP1910-CR State v. Oberst

Dist. II, Kenosha County, Milisauskas, J., Reilly, J.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — new trials — newly-discovered evidence

Where recantations are incredible as a matter of law, they do not support a new trial.

“As McCallum tells us, a post-sentence recantation must be corroborated by other newly-discovered evidence. Id., 208 Wis. 2d at 476–477, 561 N.W.2d at 711–712. As noted, this can be done by showing that: ‘(1)there is a feasible motive for the initial false statement; and, (2) there are circumstantial guarantees of the trustworthiness of the recantation.’ Id., 208 Wis. 2d at 478, 561 N.W.2d at 712. We agree with the circuit court that the ‘motive’ for Spencer’s alleged initial false statements was not ‘feasible’ because Spencer’s alleged fear of Randolph would have dissipated when Randolph died shortly after Ferguson pled guilty, and Spencer did not allege that Randolph’s alleged threats might have been carried out by a Randolph disgruntled relative or friend. Further, although the second requirement (circumstantial guarantees of the trustworthiness of the recantation) may be established by, as we have already seen, internal consistency, both Taylor’s and Spencer’s recantations were woefully inconsistent and inconsistent with each other. Thus, neither served as newly-discovered corroboration of the other.”

Affirmed.

Recommended for publication in the official reports.

2013AP99 State v. Ferguson

Dist. I, Milwaukee County, Borowski, J., Fine, J.

Attorneys: For Appellant: Bizzaro, Amelia L., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wellman, Sally L., Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — extended supervision

A court cannot order that a defendant not operate a motor vehicle as a condition of extended supervision.

“By definition, ‘operating privilege’ does not mean just the physical license document. Rather, it ‘means, in the case of a person who is licensed under ch. 343, the license, including every … authorization to operate vehicles of specific vehicle classes …; [and] in the case of a resident … who is not so licensed, it means the privilege to secure a license under ch. 343 ….’ WIS. STAT. §340.01(40) (emphasis added). The legislature then defined ‘Operator’s license,’ which ‘means the authorization granted to a person by this state … to operate a motor vehicle, including a driver’s license….’ WIS. STAT. §340.01(41g) (emphasis added). The special statutory definition of ‘operating privilege’—the state-granted authorization to operate a vehicle—is entirely consistent with a common meaning of the term privilege: a granted right. Thus, it is apparent that the WIS. STAT. §343.30(5) limitation on courts suspending or revoking operating privileges precludes not only restrictions on obtaining a physical license document, but also on the privilege to operate a vehicle.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2013AP1457-CR State v. Hoppe

Dist. III, Outagamie County, McGinnis, J., Hoover, J.

Attorneys: For Appellant: Lang, Donald T., Madison; For Respondent: Sanders, Michael C., Madison; Schneider, Carrie A., Appleton

U.S. Supreme Court

Civil
Constitutional Law — racial preferences — political process doctrine

An amendment to a state constitution, prohibiting racial preferences, does not violate the political process doctrine.

Unlike the injuries in Mulkey, Hunter, and Seattle, the question here is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued. By approving Proposal 2 and thereby adding §26 to their State Constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences. The mandate for segregated schools, Brown v. Board of Education, 347 U. S. 483, and scores of other examples teach that individual liberty has constitutional protection. But this Nation’s constitutional systemal so embraces the right of citizens to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process, as Michigan voters have done here. These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. Such circumstances were present in Mulkey, Hunter, and Seattle, but they are not present here.

701 F.3d 466, reversed.

12-682 Schuette v. BAMN

Kennedy, J.; Roberts, C.J., concurring; Scalia, J., concurring; breyer, J., concurring; Sotomayor, J., dissenting.

U.S. Supreme Court

Criminal
Motor Vehicles – OWI — reasonable suspicion

A 911 report of a single instance of careless driving provides reasonable suspicion the driver is intoxicated.

The 911 call in this case bore adequate indicia of reliability for the officer to credit the caller’s account. By reporting that she had been run off the road by a specific vehicle, the caller necessarily claimed an eyewitness basis of knowledge. The apparently short time between the reported incident and the 911 call suggests that the caller had little time to fabricate the report. And a reasonable officer could conclude that a false tipster would think twice before using the 911 system, which has several technological and regulatory features that safeguard against making false reports with immunity.

Not only was the tip here reliable, but it also created reasonable suspicion of drunk driving. Running another car off the road suggests the sort of impairment that characterizes drunk driving. While that conduct might be explained by another cause such as driver distraction, reasonable suspicion “need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U. S. 266, 277. Finally, the officer’s failure to observe additional suspicious conduct during the short period that he followed the truck did not dispel the reasonable suspicion of drunk driving, and the officer was not required to surveil the truck for a longer period.

Affirmed.

12-9490 Navarette v. California

Thomas, J.; Scalia, J., dissenting.

U.S. Supreme Court

Criminal
Sentencing – restitution – child pornography

18 U.S.C. 2259 limits restitution to losses proximately caused by the defendant, and a defendant who possessed a child pornography victim’s images is not liable for the victim’s entire losses from the trade in her images.

A showing of but-for causation is not the proper standard here, for it is not possible to prove that the victim’s losses would be less but for one possessor’s individual role in the large, loosely connected network through which her images circulate. The victim and the Government urge the Court to read §2259 to require a less restrictive causation standard in child-pornography cases like this. They endorse the theory of “aggregate causation,” one formulation of which finds factual causation satisfied where a wrongdoer’s conduct, though alone “insufficient . . . to cause the plaintiff ’s harm,” is, “when combined with conduct by other persons,” “more than sufficient to cause the harm.” 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §27, Comment f. Tort law teaches that such alternative causal tests, though a kind of legal fiction, may be necessary to vindicate the law’s purposes, for it would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm, and nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many would have no redress, while those hurt by the acts of one person alone would. These are sound principles. Taken too far, however, such alternative causal standards would treat each possessor as the cause in fact of all the trauma and attendant losses incurred as a result of all the ongoing traffic in the victim’s images. Aggregate causation logic should not be adopted in an incautious manner in the context of criminal restitution, which differs from tort law in numerous respects. Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined acts of all other relevant offenders and compared to the contributions of other individual offenders, particularly distributors and the initial producer of the child pornography. Congress gave no indication that it intended the statute to be applied in an expansive manner so starkly contrary to the principle that restitution should reflect the consequences of the defendant’s own conduct. The victim claims that holding each possessor liable for her entire losses would be fair and practical in part because offenders can seek contribution from one another, but there is no general federal right to contribution and no specific statutory authorization for contribution here. Her severe approach could also raise questions under the Excessive Fines Clause of the Eighth Amendment.

701 F. 3d 749, vacated and remanded.

12-8561 Paroline v. U.S.

Kennedy, J.; Roberts, C.J., dissenting; Sotomayor, J., dissenting.

U.S. Court of Appeals for the 7th Circuit

Civil
Evidence – Malicious prosecution

In a malicious prosecution trial, it was not error to admit police officer testimony about the ways in which drug dealers behave.

“We may make short work of Venson’s contention that various evidentiary rulings deprived him of a fair trial, as we have already touched upon each of the rulings that he cites as error on the part of the district court. First, Venson contends that the court was mistaken to permit the defendants to testify, based on their experience in the field, about the ways in which drug dealers behave. In Venson’s view, this amounted to improper expert testimony, and apart from that was irrelevant, speculative, and prejudicial. But as we have indicated, the testimony of which Venson complains was limited, was based on the officers’ own experiences, was subject to cross-examination, was arguably relevant both to illuminate why the officers believed that Venson was committing a crime and to address Venson’s central argument that the behavior the officers attributed to him was entirely implausible. And if some of the testimony amounted to improperly admitted expert opinion, it was harmless for the reasons we have already discussed.”

Affirmed.

12-1015 Venson v. Altamirano

Appeal from the United States District Court for the Northern District of Illinois, Castillo, J., Rovner, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — motions for reconsideration

A motion under Rule 60(b) that raises only issues that could be raised on appeal does not toll the time for filing an appeal.

“The fact that the district court may have mistakenly considered Banks’s arguments under Rule 59(e) does not compel or even permit us to review the merits of the underlying judgment, and we express no opinion on whether summary judgment was correctly awarded to the defendants. Instead, we review only the district court’s denial of Banks’s post-judgment motion for abuse of discretion and find that there was none.”

Affirmed.

13-2018 Banks v. Chicago Board of Education

Appeal from the United States District Court for the Northern District of Illinois, Leinenweber, J., Hamilton, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Bankruptcy — intervention

An excess insurer cannot intervene in its insured’s bankruptcy.

“Our case doesn’t involve a threat to Columbia’s rights, though at oral argument there were some dark hints from Columbia’s lawyer that there was hanky-panky involved in Hall’s settlement with Integrity. The hints are absent from Columbia’s briefs. All we learn there is that Columbia would have liked an opportunity to prove that Hall should have been more aggressive in the settlement negotiations, because had it been it might have gotten a larger settlement and if so it would have a smaller potential claim against Columbia, its back-up insurer. That’s just like our hypothetical case of the employee of Columbia who objects to the settlement on the ground that it may cost him his job by increasing his employer’s potential liabilities.”

Affirmed.

13-1306 In re C.P. Hall Co.

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Posner, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Sentencing – restitution

In a fraud case, restitution is determined based on the value of property at the time it is sold.

“A second question concerning restitution concerns the method of calculating it for victims entitled to restitution.

The defendants argue that the method used was wrong, citing United States v. Robers, 698 F.3d 937, 939 (7th Cir. 2012), cert. granted, 134 S. Ct. 470 (2013).

The victims in that case were a mortgage lender and a mortgage guarantor (for simplicity we’ll call them both ‘mortgagees’). They correspond to the defrauded banks in our case. As a result of Robers’s fraud, the properties were worth less than the balance of the mortgages and so the mortgagees could not recover the balance when the mortgagors defaulted. The restitution statute entitles a victim to ‘the value of the [victim’s] property on the date of sentencing, less the value (as of the date the property is returned) of any part of the property that is returned.’ 18 U.S.C. §§ 3663A(b)(1)(B)(i)(II), (ii). The question was whether ‘the date the property is returned’ should be the date of the foreclosure or, later, when the property is sold (presumably by the mortgagee, on the assumption that the mortgagee had acquired title to the property at the foreclosure sale). We held that it was the latter. Four circuits agree with this approach, United States v. Statman, 604 F.3d 529, 538 (8th Cir. 2010); United States v. James, 564 F.3d 1237, 1244–47, (10th Cir. 2009); United States v. Innarelli, 524 F.3d 286, 294 (1st Cir. 2008); United States v. Himler, 355 F.3d 735, 745 (3d Cir. 2004), and maybe a fifth. See United States v. Boccagna,

450 F.3d 107, 115–20 (2d Cir. 2006). Two disagree.

United States v. Holley, 23 F.3d 902, 914–15 (5th Cir. 1994);

United States v. Smith, 944 F.2d 618, 625–26 (9th Cir. 1991).

The Supreme Court will decide; until it does, we’ll stick with our Robers decision.”

Affirmed in part, and Reversed in part.

12-3007, 12-3178, 12-3180 & 12-3276 U.S. v. Farano

Appeals from the United States District Court for the Northern District of Illinois, Guzmán, J., Posner, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Sentencing – crack cocaine

Where the defendant convicted of a crack cocaine offense is a career offender, his sentence cannot be reduced based on subsequent changes to the sentencing guidelines.

“The sentencing court’s determination that Stevenson was a career offender was a ‘guidelines decision’ and remains in place despite the subsequent changes to the crack cocaine guidelines. See United States v. Waters, 648 F.3d 1114, 1117 (9th Cir. 2011). Where a defendant’s conduct-based offense level exceeds the career offender guideline (or other mandatory minimum sentence) and the defendant is sentenced based on the higher offense level, his sentence cannot later be reduced below the career offender level, provided the original sentencing court found that he was a career offender. To hold otherwise would grant a windfall to convicted criminals whose onetime offense conduct was so egregious the corresponding sentence exceeded the relevant career criminal sentence.”

Affirmed.

12-3108 U.S. v. Stevenson

Appeal from the United States District Court for the Northern District of Illinois, Bucklo, J., Kanne, J.