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Home / Case Digests / Weekly Case Digests — May 12-16, 2014

Weekly Case Digests — May 12-16, 2014

Wisconsin Law Journal, Case Digests, May 12-16, 2014

Wisconsin Court of Appeals

Civil
Family — property division

Michael Kelly, pro se, appeals his divorce judgment, arguing the circuit court erroneously exercised its discretion in the property division. We affirm. We deny Bonnie Kelly’s motion seeking costs and fees for a frivolous appeal. Judgment affirmed. This opinion will not be published.

2013AP583 In re the marriage of: Kelly v. Kelly

Dist III, Pierce County, Boles, J., Per Curiam

Attorneys: For Appellant: Kelly, Michael Dennis, pro se; For Respondent: Sienko, David, River Falls

Wisconsin Court of Appeals

Civil
Insurance — UIM coverage

Riley Sterry and his father, William Sterry, (collectively, the Sterrys) appeal a summary judgment dismissing their claims against Progressive Classic Insurance. The circuit court concluded a car insurance policy Progressive issued to Riley’s mother, Kristy Sterry, did not provide coverage for the Sterrys’ negligence claims against Kristy. The court also rejected the Sterrys’ argument that Riley was entitled to underinsured motorist coverage under the Progressive policy. For the reasons explained below, we affirm. This opinion will not be published.

2013AP2099 Sterry v. Acker et al.

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

Attorneys: For Appellant: Gilbert, Mark E., Hudson; Christianson, Joshua D., Menomonie; For Respondent: Smith, Brent P., La Crosse; Gill, Cheryl M., La Crosse

Wisconsin Court of Appeals

Civil
Municipalities — raze orders

John Lerch, pro se, appeals an order that dissolved a restraining order prohibiting the City of Green Bay from razing his property. Lerch claims the circuit court erred in multiple respects. We reject Lerch’s arguments, with one exception. We conclude the circuit court violated Lerch’s right to due process when it dissolved the restraining order, based on representations in a letter received from the City, without giving Lerch an opportunity to respond to those assertions. We therefore reverse the order dissolving the restraining order and remand this matter for a hearing to determine whether the restraining order should be dissolved. This opinion will not be published.

2013AP2033 Lerch v. City of Green Bay

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

Attorneys: For Appellant: Lerch, John L., pro se; For Respondent: Decker, Kail, Green Bay; Mueller, James L., Green Bay

Wisconsin Court of Appeals

Civil
Family – maintenance — modification

Where the parties are 79 years old, have been divorced for 21 years, are living solely on their investment income and social security benefits, and the husband paid maintenance for 10 years after he retired, the trial court properly exercised its discretion when it reduced the wife’s maintenance to $0.

“In sum, the trial court properly exercised its discretion when it determined that at age seventy-nine, Bradley no longer had to pay maintenance to his former wife from whom he has been divorced for over twenty years and who has $65,000 of yearly income and investments totaling almost $2,500,000. In doing so, the trial court also considered both the support and the fairness objective.”

Affirmed.

Recommended for publication in the official reports.

2013AP1739 Brin v. Brin

Dist. I, Milwaukee County, Rosa, J., Curley, J.

Attorneys: For Appellant: Dittburner, Wyatt D., Milwaukee; For Respondent: St. John, Thomas W., Milwaukee

Wisconsin Court of Appeals

Civil
Administrative Law — overpayments

Where payments were made pursuant to department policy, the department is not entitled to reimbursement.

“[W]e reverse the ALJ’s determination that Mata was not entitled to a $541.42 reduction in overpayment for the first two weeks of April, 2011, and remand the case with instructions to reduce Mata’s overpayment total by $541.42. Not only did Terrella, the Department’s representative, testify that it is common practice to authorize child care subsidies while the Department’s investigation into an employer’s legitimacy is pending, but the Grannies Day Care case also supports this conclusion. Moreover, we do not find the ALJ’s contention that Mata’s case is different from Grannies Day Care because there was no clear short-term authorization here persuasive. The circumstances are in fact nearly identical; in each case, the Department provided payment during the time that the petitioner’s ‘qualified’ employment status was in question. It does not matter that in Grannies Day Care, the short-term authorization was clearly announced because the case is substantively the same as Mata’s case. Also, it does not matter that Mata reported her employment late because the $541.42 reduction amount factors Mata’s delayed reporting into the total. Thus, a decision reversing the ALJ will not encourage late reporting for Wisconsin Shares recipients. Additionally, we are not persuaded by the ALJ’s contention that the policy of allowing short-term authorizations is merely a ‘suggestion,’ even if the policy does in fact include such language. Terrella’s testimony and the Grannies Day Care decision make clear that this is a policy that the Department follows, and, absent a satisfactory reason, it should have been followed in Mata’s case. See Stoughton Trailers, 295 Wis. 2d 750, ¶27 (requiring a ‘satisfactory explanation’ to deviate from prior agency policy). Finally, we note that the Department has not supplied any authority to counter the Grannies Day Care decision.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2013AP2013 Mata v. Wisconsin Department of Children and Families

Dist. I, Milwaukee County, Van Grunsven, J., Curley, J.

Attorneys: For Appellant: Delessio, Patricia, Milwaukee; For Respondent: Remington, Debra L., Madison; Paulson, Rebecca, Madison

Wisconsin Court of Appeals

Civil
Property — adverse possession

Eric and Kevin Norman appeal a summary judgment dismissing their complaint against the Declaration of Trust of Patricia Warner, Patricia Warner — Trustee (hereinafter, Warner). The Normans argue there are genuine issues of material fact regarding their adverse possession claim against Warner. The circuit court concluded that, even if all factual disputes were resolved in the Normans’ favor, their claim failed as a matter of law. We agree and affirm. This opinion will not be published.

2013AP2663 Norman v. The Declaration of Trust of Patricia Warner

Dist III, Oneida County, Bloom, J., Per Curiam

Attorneys: For Appellant: Houlihan, John C., Minocqua; For Respondent: Hogan, John J., Rhinelander

Wisconsin Court of Appeals

Civil
Property – foreclosure — motions to reopen

Rosaria and James Montesano appeal an order of the circuit court denying the Montesanos’ motion under Wis. Stat. § 806.07 (2011-12) to reopen a judgment of foreclosure. Relying largely on an unpublished opinion of this court, the Montesanos argue that the circuit court erroneously exercised its discretion in denying their motion. For the reasons discussed below, we affirm. Not recommended for publication in the official reports.

2013AP2121 JP Morgan Chase Bank NA v. Montesano et al.

Dist IV, Columbia County, Voigt, J., Sherman, J.

Attorneys: For Appellant: Shah, Rishi G., Madison; For Respondent: Smith, Ann U., Madison; Brydges, Joseph D., Madison; Kieffer, Amy M., New Berlin

Wisconsin Court of Appeals

Criminal
Search and Seizure — consent

Patrick Hogan appeals a judgment of conviction based on his no-contest pleas to possession of methamphetamine and child neglect after the circuit court denied Hogan’s suppression motion. Hogan contends that: (1) Hogan was illegally seized when he consented to a search of his vehicle; and (2) even if Hogan was not seized at the time he consented to the search, Hogan’s consent was tainted by a prior Fourth Amendment violation. We conclude that Hogan was not seized when he consented to the search, and that Hogan’s consent was sufficiently attenuated from the prior illegality. Accordingly, we affirm. This opinion will not be published.

2013AP430-CR State v. Hogan

Dist IV, Grant County, Day, J., Per Curiam

Attorneys: For Appellant: Passe, Nick, La Crosse; For Respondent: Pozorski, Anthony J., Lancaster; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — extra-territorial jurisdiction

John Downey appeals from his citations for operating a vehicle while intoxicated and with a prohibited alcohol concentration, arguing that the traffic stop leading to those citations violated statutory and constitutional law because it was conducted by a West Allis police officer outside the boundaries of West Allis. The municipal court determined that the officer, following up on a citizen complaint about a serious emergency — a vehicle proceeding west in the eastbound lane of traffic — had the right to conduct this traffic stop just outside of the boundaries of West Allis. The circuit court affirmed. We do as well. This opinion will not be published.

2013AP2352-FT City of New Berlin v. Downey

Dist II, Waukesha County, Foster, J., Brown, C.J.

Attorneys: For Appellant: Owens, Joseph F., New Berlin; For Respondent: Schmitzer, Thomas G., Waukesha

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — warrantless blood draws — good faith exception

Dushyant Patel appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), first offense. He contends the circuit court erred in failing to suppress evidence related to a sample of his blood because the blood draw was unconstitutional in light of Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013), a United States Supreme Court decision handed down after the draw was performed but while the case was still pending. He argues that the exclusionary rule should preclude use of the evidence and that the good faith exception to the rule does not apply. We conclude that because the arresting deputy was acting in conformity with clear, well-settled law in effect at the time, which permitted such a blood draw, the circuit court did not err in determining that the deputy acted in good faith and denying Patel’s motion to suppress. We affirm. This opinion will not be published.

2013AP2292 County of Waukesha v. Patel

Dist II, Waukesha County, Foster, J., Gundrum, J.

Attorneys: For Appellant: Cotton, Anthony, Waukesha; For Respondent: Bayer, Bryan C., Waukesha

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — reasonable suspicion

Andrew K. Wenz appeals from a judgment of conviction entered after he pled guilty to operating a motor vehicle while under the influence of an intoxicant as a second offense. Wenz argues that the police lacked reasonable suspicion to stop his car because the content of the known, reliable informant’s tip was too minimal to permit police to reasonably ascertain whether they were stopping the correct vehicle. We disagree and affirm. This opinion will not be published.

2013AP2576-CR State v. Wenz

Dist I, Milwaukee County, Gordon, J., Brennan, J.

Attorneys: For Appellant: Bayer, John T., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison; O’Byrne, Karine E., Milwaukee

Wisconsin Court of Appeals

Criminal
Sentencing — discretion

Richard L. Jones, Jr., appeals from a judgment of conviction for six crimes related to the shooting of his wife and 16-year-old stepdaughter. He also appeals from an order denying his motion for sentence modification. He argues that the trial court erroneously exercised its sentencing discretion because the sentence is longer than necessary and because the trial court “focused exclusively on the seriousness of the offense.” We affirm. This opinion will not be published.

2013AP1782-CR State v. Jones

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

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — habeas corpus

Gerald Porter appeals an order denying his petition for writ of habeas corpus. The circuit court’s written decision properly analyzes and disposes of the issues raised by Porter’s petition. Therefore, we affirm for the reasons explained in the circuit court’s decision. See Wis. Ct. App. IOP VI (5)(a) (Nov. 30, 2009) (“When the trial court’s decision was based upon a written opinion … the panel may … make reference thereto, and affirm on the basis of that opinion.”). A copy of the circuit court’s decision is attached to this per curiam and incorporated by reference. Order affirmed. This opinion will not be published.

2013AP1660 State ex rel. Porter v. Cockroft et al.

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

Attorneys: For Appellant: Swartz, Melinda A., Milwaukee; For Respondent: Kassel, Jeffrey J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Alfredo J. Holliman, Jr. appeals a judgment convicting him of delivery of a controlled substance-cocaine (one gram or less) as a second or subsequent offense. He also appeals an order denying his motion for postconviction relief. The sole issue on appeal is whether Holliman’s postconviction motion alleging ineffective assistance of counsel set forth sufficient material facts to warrant a Machner hearing. The circuit court concluded that it did not. We agree and affirm. This opinion will not be published.

2013AP1515-CR State v. Holliman

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

Attorneys: For Appellant: Babe, Katie, Pewaukee; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure — postconviction discovery — exculpatory evidence

Jeffrey Donald Leiser, pro se, appeals an order denying his motion for: (1) an in camera review of reports that he believes were generated by Washington County social services; (2) postconviction discovery of those reports pursuant to State v. O’Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999); and (3) a hearing to explore his allegation that the State’s failure to produce the reports before trial violated the State’s obligations to disclose exculpatory evidence, under Brady v. Maryland, 373 U.S. 83 (1963). Because Leiser offers only speculation about the content of the alleged reports that he seeks, we affirm. This opinion will not be published.

2013AP1315-CR State v. Leiser

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

Attorneys: For Appellant: Leiser, Jeffrey Donald, pro se; For Respondent: Loebel, Karen A., Milwaukee; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — successive appeals

Brian Maus appeals an order denying his Wis. Stat. § 974.06 (2011-12), postconviction motion without a hearing. Because we conclude the motion was procedurally barred and Maus failed to allege specific non-conclusory facts to establish sufficient reason for his failure to have raised the issues in his earlier postconviction proceedings, we affirm the order. This opinion will not be published.

2013AP1232 State v. Maus

Dist III, Langlade County, Kussel, J., Per Curiam

Attorneys: For Appellant: Maus, Brian A., pro se; For Respondent: Gansner, William L., Madison; Uttke, Ralph M., Antigo; Larson, Sara Lynn, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — speedy trials

Danyall Lorenzo Simpson appeals the judgment convicting him of the following charges: endangering safety by use of a dangerous weapon (pointing), domestic abuse; aggravated battery (substantial risk of great bodily harm), use of a dangerous weapon, domestic abuse; and failure to comply with officer’s attempt to take person into custody, use of a dangerous weapon. He argues that his statutory and constitutional rights to a speedy trial were violated. We affirm. This opinion will not be published.

2013AP1146-CR State v. Simpson

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

Attorneys: For Appellant: Last, Matt, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Tarver, Sandra L., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Lashawn E. Gates appeals from a judgment of conviction, entered on his guilty plea, for one count of soliciting a child for prostitution. He also appeals from an order denying his motion for resentencing. He argues that he is entitled to resentencing because: (1) the trial court relied on inaccurate information at sentencing; and (2) his trial lawyer provided constitutionally deficient representation at sentencing. We affirm. This opinion will not be published.

2013AP1054-CR State v. Gates

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

Attorneys: For Appellant: Paulson, Randall E., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — Miranda warnings

Jimmy Scales appeals a judgment convicting him of one count of felony murder, with armed robbery as a party to a crime as the predicate offense. He argues that his confession to police should be suppressed because he claims that he did not initiate additional questioning by the police after he asserted his right to a lawyer. He also argues that his confession should be suppressed because the police did not give him Miranda warnings before resuming the interrogation. We affirm. This opinion will not be published.

2013AP351-CR State v. Scales

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

Attorneys: For Appellant: Odrzywolski, Donna, Wauwatosa; For Respondent: Loebel, Karen A., Milwaukee; Winter, Tiffany M., Madison

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

Civil
Civil Rights — qualified immunity

Where a woman threatened to kill herself, exigent circumstances justified the police in entering her home without a warrant and seizing her locked firearm.

“Based on the Supreme Court’s decision in Brigham City and this court’s decision in Fitzgerald, we conclude that the warrantless entry into Sutterfield’s home was justified. Under the circumstances confronting the defendant police officers, they had an objectively reasonable basis for believing that Sutterfield posed an imminent danger of harm to herself; the circumstances thus constituted an emergency which dispensed with the need for a warrant under the exigent circumstances exception to the Fourth Amendment’s warrant requirement. Alternatively, even if the entry into Sutterfield’s home was inconsistent with the Fourth Amendment, a reasonable person would not have known that the entry violated Sutterfield’s clearly established rights; the officers would therefore be entitled to qualified immunity on the unlawful entry claim. Similarly, although we have assumed arguendo that both the search of the compact disc case in Sutterfield’s home and the seizure of the (lawfully-possessed) gun found inside of that case were contrary to the Fourth Amendment, we conclude that the defendant officers are entitled to qualified immunity on the unlawful search and seizure claims. We do not address Sutterfield’s summary contention that the officers’ seizure of her person for purposes of an emergency mental health evaluation pursuant to Wisconsin Statutes section 51.15 was contrary to the Fourth Amendment, as she has not adequately preserved that argument. Neither do we address Sutterfield’s contention that the seizure of her lawfully-possessed handgun violated her Second Amendment right to possess a firearm for the purpose of self-defense, as Sutterfield has not adequately developed and supported that contention, nor has she shown any defect in the available means of regaining possession of her gun from the authorities.”

Reversed and Remanded.

12-2272 Sutterfield v. City of Milwaukee

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Rovner, J.

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

Civil
Employment — race discrimination — state actors

42 U.S.C. 1981 does not create a private right of action against state actors.

“[T]he legislative history reveals that subsection (c) was intended not to overrule Jett but ‘to codify [Runyon], in which the Supreme Court held that § 1981 prohibited intentional racial discrimination in private, as well as public, contracting.’ McGovern v. City of Philadelphia, 554 F.3d 114, 120 (3d Cir. 2009). Congress was apparently responding to Patterson, in which the Court questioned Runyon’s correctness and adhered to it only out of respect for the principle of stare decisis. See id. (‘Wary of the fact that future courts might not employ the principle of stare decisis, Congress established § 1981(c) to codify the holding of Runyon.’). ‘Nothing in the 1991 amendments or its legislative history evinces Congress’s desire to alter the Supreme Court’s conclusion in Jett, nor was Jett even mentioned despite the fact that it was decided [only] two years before Congress enacted the 1991 Act.’ Id.”

Affirmed.

13-3147 Campbell v. Forest Preserve District of Cook County Illinois

Appeal from the United States District Court for the Northern District of Illinois, Durkin, J., Tinder, J.

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

Civil
Civil Procedure — law of the case

When an en banc decision in another case presenting the same issue creates an intervening change in the law, the district court is permitted to deviate from the law of the case, upon proper motion.

“Although the intervening decision here came not from the Supreme Court, but from this very court sitting en banc, we have little trouble concluding that it worked a change in the law. Empress Casino did not explicitly overrule the panel’s decision in this case, but it did clearly alter the law underlying the decision. ‘When sitting en banc, the full court has the power to change general rules stated in previous cases.’ Mojica v. Gannett Co., 7 F.3d 552, 557 (7th Cir. 1993). This court in Empress Casino changed the general understanding of what a tax is for purposes of the TIA. Its holding is flatly ‘inconsistent’ with the prior decision of the Kathrein panel, Chi. & N.W. Transp. Co., 574 F.2d at 930, and the opinion for the court said as much. See Empress Casino, 651 F.3d at 730 (‘We do not agree with that decision.’). The en banc majority also criticized ‘a number of decisions under the [TIA]’ that ‘have flirted with open ended, multifactor tests—open-ended because the relative weights of the factors are left to judicial discretion.’ Id. at 727. The Kathrein panel decision employed just such a multifactor test in evaluating the Demolition Tax. Based on our reading of Empress Casino, we conclude that the district court correctly departed from the law of the case in this instance. Reasonable minds can disagree about the proper boundary between a tax and other exactions in applying the TIA, but the bright-line test announced in Empress Casino is binding on all courts in this circuit going forward.”

Affirmed.

12-2958 Kathrein v. City of Evanston Illinois

Appeal from the United States District Court for the Northern District of Illinois, Guzman, J., Tinder, J.

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

Civil
Employment – ERISA — statute of limitations

Where employees lack actual knowledge of a breach of fiduciary duty, the statute of limitations is six years.

“In the case of an ERISA plan that invokes a § 1108 exception to a § 1106 prohibition, the plaintiff does not have actual knowledge of an alleged violation until she knows that the exception does not apply. These plaintiffs did not have actual knowledge of the violations based on the information defendants provided. That information claimed that defendants had been prudent, had used appropriate procedures to evaluate the Antioch buy-out transaction, and had concluded that the consideration would be adequate. To the extent defendants argue that this approach extends the limitations period too long, the response is that the six-year limit in § 1113(1) remains applicable to protect defendants from stale claims.”

Reversed and Remanded.

12-3330 Fish v. GreatBanc Trust Co.

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

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

Civil
Constitutional Law — freedom of speech — campaign finance

Wisconsin’s ban on political spending by corporations is unconstitutional.

“To sum up, we conclude as follows: Corporate-speech ban. Section 11.38(1)(a)1, the ban on political spending by corporations, is unconstitutional under Citizens United. Cap on corporate fundraising for an affiliated PAC. Section 11.38(1)(a)3, the cap on the amount a corporation may spend on fundraising for an affiliated political committee, is unconstitutional under Citizens United and Barland I. Regulatory disclaimer. The lengthy disclaimer requirement in GAB § 1.42(5) is unconstitutional as applied to 30-second radio ads and ads of shorter duration. Definitions of ‘political purposes’ and ‘political committee.’ The statutory definition of ‘political purposes,’ section 11.01(16), and the regulatory definition of ‘political committee,’ GAB § 1.28(1)(a), are unconstitutionally vague and overbroad in the sense meant by Buckley and require a narrowing construction. As applied to political speakers other than candidates, their campaign committees, and political parties, the definitions are limited to express advocacy and its functional equivalent as those terms were explained in Buckley and Wisconsin Right to Life II. PAC Status and PAC-Like Burdens on Issue-Advocacy Groups. The second sentence of GAB § 1.28(3)(b), which treats issue advocacy during the 30/60-day preelection period as fully regulable express advocacy if it mentions a candidate, is unconstitutional. Similarly, GAB § 1.91, which imposes PAC-like registration, reporting, and other requirements on all organizations that make independent disbursements, is unconstitutional as applied to organizations not engaged in express advocacy as their major purpose.”

“The other challenged statutes and rules survive First Amendment scrutiny.”

Vacated and Remanded.

12-2915, 12-3046 & 12-3158 Wisconsin Right to Life Inc. v. Barland

Appeals from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Sykes, J.

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

Criminal
Sentencing — extraordinary familial circumstances

Even though the defendant cared for two teenage sons and a nephew, the district court properly determined there were no extraordinary familial circumstances justifying a below-guideline sentence.

“She maintains that the district court failed to give proper weight to her extraordinary familial circumstances, namely her role, prior to her incarceration, as the primary caregiver to her two teenage sons and her teenage nephew. While this court has recognized that giving ‘short shrift’ to the possibility of ‘extraordinary hardship’ on one’s family is a sound basis to remand for resentencing, United States v. Schroeder, 536 F.3d 746, 755 (7th Cir. 2008), there were no such extraordinary hardship in this case. In Schroeder, the defendant was the primary caregiver for his daughter who had a severely compromised immune system, rendering child care almost impossible if he were incarcerated. There were no analogous extraordinary hardship at play here. Yes, Ogletree cared for her children and nephew and they suffer emotionally from her incarceration. But there is nothing to take this case outside the normal realm of hardship all children suffer when a caregiving parent is incarcerated. To the extent there was a hardship, the district court took that into account, allowing Ogletree to delay the start of her sentence to allow her to make arrangements for the children. Under these circumstances, there was no abuse of discretion in sentencing her to 51 months’ imprisonment.”

Affirmed.

13-2098 U.S. v. Williams-Ogletree

Appeal from the United States District Court for the Northern District of Illinois, St. Eve, J., Manion, J.

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

Criminal
Search and Seizure – arrest — probable cause

Where a suspect made false statements to officers during a Terry stop, they had probable cause to arrest and handcuff him, even if they didn’t have reasonable suspicion that he was armed.

“We need not decide whether the use of handcuffs was consistent with an ongoing Terry stop under the rationale of Glenna and its progeny. For even if we assume that placing Beltran in handcuffs transformed the investigatory stop into arrest, we believe, contrary to Beltran’s premise, that Wood had probable cause to arrest Beltran at that point in time.”

“Making a materially false statement to a federal agent is a crime. See 18 U.S.C. § 1001(a)(2). When Wood confronted Beltran after Beltran emerged from the building and asked him what he was doing, Wood had reason to believe that Beltran told him at least two lies: (1) that he had just arrived on the premises, and (2) that he had not been inside the two-flat. Both statements were demonstrably false in light of what Wood and his colleagues knew. Beltran had been seen sneaking into the back yard from the alley some 20 to 25 minutes earlier, and Wood had heard him ‘rummaging around’ upstairs, to use the district court’s phrase. 2010 WL 379873, at *2. See United States v. Amaral-Estrada, 509 F.3d 820, 827–28 (7th Cir. 2007) (defendant’s statement to agent that he knew nothing about automobile that agent ‘had just seen him park and exit moments earlier’ supplied probable cause to arrest defendant for making false statement in violation of § 1001). Beltran’s false statements were material in the sense that they constituted an effort to cover up his evident attempt to conceal or destroy evidence, itself a federal offense. See 18 U.S.C. § 1512(c)(1) (construed in United States v. Johnson, 655 F.3d 594, 603–05 (7th Cir. 2011)), and § 1519; see also United States v. Lupton, 620 F.3d 790, 806–07 (7th Cir. 2010) (‘When statements are aimed at misdirecting agents and their investigation, even if they miss spectacularly or stand absolutely no chance of succeeding, they satisfy the materiality requirement of 18 U.S.C. § 1001.’). In short, the facts confronting Wood warranted a reasonable person in believing that Beltran had just committed a crime. See, e.g., Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013) (defining probable cause to arrest). It does not matter whether Wood had section 1001 in mind when he placed Beltran in handcuffs; what matters is that given the facts known to him at that time, he reasonably could have believed that Beltran had made a false statement to him in violation of that statute. See Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 593–94 (2004); see also, e.g., Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir. 2013); Williams v. Rodriguez, 509 F.3d 392, 399 (7th Cir. 2007).”

Affirmed.

12-2990 U.S. v. Beltran

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

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

Criminal
Criminal Procedure — Confrontation Clause

It does not violate the Confrontation Clause to present a videotape from a hidden camera, even though the person wearing the camera did not testify.

“Pictures can convey incriminating information (think of the famous scene in Blow-Up in which David Hemmings’s processing of a photo negative finally reveals the corpse). But one can’t cross-examine a picture. The video of the defendant in this case handing crack to his nephew was a picture; it was not a witness who could be cross-examined. The agent narrated the video at trial, and his narration was a series of statements, so he was subject to being cross-examined and was, and thus was ‘confronted.’ Andrew could have testified to what he saw, but what could he have said about the recording device except that the agents had strapped it on him and sent him into the house, where the device recorded whatever happened to be in front of it? Rule 801(a) of the Federal Rules of Evidence does define ‘statement’ to include ‘nonverbal conduct,’ but only if the person whose conduct it was ‘intended it as an assertion.’ We can’t fit the videotape to this definition.

Affirmed.

13-2160 U.S. v. Wallace

Appeal from the United States District Court for the Central District of Illinois, Mills, J., Posner, J.

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