Weekly Case Digests — Aug. 4-8, 2014

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Wisconsin Law Journal’s Case Digests, Aug. 4-8, 2014 

CIVIL OPINIONS

Wisconsin Court of Appeals

Civil
Agriculture — unpasteurized milk

This is a consolidated appeal taken by Farm-to-Consumer Legal Defense Fund, Mark and Petra Zinniker (the Zinnikers), Nourished by Nature, LLC (Nourished by Nature), Philip Burns, Gayle Loiselle, and Robert Karp in one case; and Farm-to-Consumer Legal Defense Fund, GrassWay Organics Farm Store, LLC (the Store), GrassWay Organics Association (the Association), and Kay and Wayne Craig d/b/a GrassWay Farm in a second case. For ease of reference, we refer to the appellants in the first case as “the Zinniker plaintiffs,” and refer to the appellants in the second case as the “GrassWay plaintiffs.”

The Zinniker plaintiffs and the GrassWay plaintiffs appeal a circuit court order denying their respective motions for summary judgment. The Zinniker plaintiffs contend that the court erred in denying their motion for summary judgment, in which they requested the court to declare that they have a right to own cows, board those cows at a dairy farm, and consume the unpasteurized milk produced by those cows. However, we agree with DATCP that the dispositive issue is whether the Zinnikers are operating a dairy farm as milk producers without a license, which is an issue that precedes any question about the regulation of unpasteurized milk. We conclude that the Zinnikers are operating a dairy farm as milk producers without a license in violation of Wis. Stat. § 97.22(2)(a) (2011-12), and therefore, any contractual agreement among the Zinnikers, Nourished by Nature, and its members, under which the Zinnikers board dairy cows owned by Nourished by Nature and distribute milk produced by the herd to members of Nourished by Nature, is void as a matter of law.

The GrassWay plaintiffs contend that they are entitled to a declaration that they are in compliance with Wis. Stat. § 97.24 and that the Store is not required to obtain a retail food establishment license to sell or distribute milk to members of the Association. We conclude that the circuit court correctly concluded, based on the facts of record presented by the GrassWay plaintiffs on summary judgment, that the GrassWay plaintiffs were not entitled to the declarations that they had requested. Accordingly, we conclude that the circuit court properly denied summary judgment to the Zinniker plaintiffs and the GrassWay plaintiffs. We affirm. Not recommended for publication in the official reports.

2011AP2264 Farm-to-Consumer Legal Defense Fund et al. v. Wisconsin Department of Agriculture Trade and Consumer Protection et al.

Dist IV, Dane County, Fiedler, J., Higginbotham, J.

Attorneys: For Appellant: Rich, Elizabeth G., Plymouth; Cox, David G., Columbus, Ohio; For Respondent: Hunter, Robert M., Madison

CIVIL PROCEDURE

Wisconsin Court of Appeals

Civil
Civil Procedure — right to present defense

Brian King appeals a small claims judgment entered in favor of his brothers, Warren King and Kevin King. Brian argues the circuit court erroneously exercised its discretion by failing to allow him to present evidence, examine witnesses, and make arguments at the 2012 and 2013 court hearings. He also argues there was insufficient evidence to support the circuit court’s factual findings and the circuit court erred by failing to conclude Kevin’s claims were barred by the statute of limitations.

We conclude that, at the 2012 hearing, the circuit court allowed Brian to present evidence, examine witnesses, and make argument, and the factual findings made by the circuit court following that hearing are sufficiently supported by the record. We therefore affirm the portion of the circuit court’s judgment ordering Brian to return Warren’s property. However, we agree with Brian that, at the 2013 hearing, the circuit court erred by making its determinations before providing Brian with any opportunity to make argument or present a defense to the allegations. We therefore reverse the remainder of the circuit court’s judgment and remand with directions that Brian be provided an opportunity to make argument and present a defense to the remaining allegations. This opinion will not be published.

2013AP2682 King v. King

Dist III, Rusk County, Anderson, J., Hoover, P.J.

Attorneys: For Appellant: Wieckowicz, Amanda L., Chetek; For Respondent: Nussberger, Terry L., Ladysmith

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

Civil
Civil Procedure — sanctions

Attorneys can be held jointly and severally liable for each other’s sanctions.

“The relevant question thus relates to the scope of responsibility undertaken by each individual attorney. In our case, the district court found that while Steele and Hansmeier were not listed on every court document, the evidence showed that they were “in cahoots” with Duffy and worked with him to use the judicial system for a legally meritless claim. Their efforts seem to have continued in this court. While both Steele and Hansmeier now contend that they showed up in this case only after the federal proceedings were underway, the record shows that both were also involved in the shadows of the state court proceedings. Steele called AT&T’s counsel about the subpoenas, and he appeared and argued against the ISPs’ motion to quash and motion to stay. Hansmeier appeared at a conference before a magistrate judge and was the sole signatory of the 10?page opposition to the ISPs’ motion for the stay of discovery. While Steele and Hansmeier insist that they had only minimal activity with this case, the district court did not abuse its discretion when it found otherwise.”

Affirmed.

13-3801 and 14-1682 Lightspeed Media Corp. v. Smith

Appeals from the United States District Court for the Southern District of Illinois, Murphy, Herndon, JJ., Wood, J.

CIVIL RIGHTS

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

Civil
Civil Rights — excessive force

Even if a plaintiff had previously resisted arrest, summary judgment was improperly granted to a police officer who, the plaintiff claims, broke his jaw after he had ceased resisting.

“By Miller’s account he was visible to Gonzalez and had been motionless for upwards of ten seconds, at gunpoint, when Gonzalez kneed him in the jaw. If true, this situation is distinguishable from the situation in Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009), upon which Gonzalez relies. In Johnson, a shooting suspect fled from police until he was cornered in a residential yard. Id. at 659. Literally moments after the suspect turned and offered to surrender, he was bitten by the pursuing officer’s dog and the officer struck him several times until he was handcuffed. Id. at 659–60. In affirming the district court’s grant of summary judgment on Johnson’s excessive-force claim, we ruled that, while officers may not continue to use force against a subdued suspect, Johnson was not yet known to be subdued when his pursuers applied force. Id. at 660. The critical fact in Johnson was that the officer ‘had no idea how Johnson was going to behave once he was cornered.’ Id. at 660. Unlike the arresting officer in Johnson, by Miller’s account, Gonzalez could see that he was prone and subdued at gunpoint. Given this, it would not be objectively reasonable to break Miller’s jaw to effectuate arrest (or to protect the officers), notwithstanding his previous attempt to flee. And as the cases cited above demonstrate, this was clearly established at the time of Miller’s arrest.”

Affirmed in part, and Vacated in part.

11-2906 & 12-2950 Miller v. Gonzalez

Appeals from the United States District Court for the Eastern District of Wisconsin, Randa, J., Rovner, J.

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

Civil
Civil Rights — continuing seizure doctrine

An initially lawful detention does not become unlawful because of its duration.

“Adoption of the “continuing seizure” doctrine in the form urged by the plaintiff would greatly enlarge the scope of the Fourth Amendment. And to no purpose, for there are abundant legal remedies — including federal remedies — for a state’s refusing to release a person who is being unlawfully detained. In Wolff v. McDonnell, 418 U.S. 539, 544, 557 (1974), for example, the Supreme Court held that to prolong detention by depriving a state prisoner of good-time credits without proper procedure violates the due process clause of the Fourteenth Amendment. What it does not violate is the Fourth Amendment.”

Affirmed.

13-3351 Llovet v. City of Chicago

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

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

Civil
Civil Rights — federal court jurisdiction

A state court suit against the attorneys who filed a Fair Housing Act suit against the plaintiff was properly remanded back to state court after the defendants removed it to federal court.

“In Johnson v. Mississippi, Justice Marshall stated that ‘[t]he line between Rachel and Peacock is that between prosecutions in which the conduct necessary to constitute the state offense is specifically protected by a federal equal rights statute under the circumstances alleged by the petitioner, and prosecutions where the only grounds for removal are that the charge is false and motivated by a desire to discourage the petitioner from exercising … a federal right.’ 421 U.S. at 234 (Marshall, J., dissenting) (internal quotation marks omitted). Even if Dudley and Sidea are correct that Fenton has a retaliatory motivation, this case falls into the latter category and is not removable under § 1443(1). See Glanton, 107 F.3d at 1051. If the defendants’ Fair Housing Act rights have indeed been violated in this case, we believe that the violation can, and must, be heard and remedied in the Illinois courts.”

Affirmed.

14-1067 Fenton v. Dudley

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Flaum, J.

IMMIGRATION

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

Civil
Immigration — asylum

Where an asylum seeker was warned that lie on his immigration asylum would result in permanent ineligibility for immigration benefits, he was properly placed in removal proceedings.

“Even so, Albu had an interpreter with him at his asylum interview, and the interpreter represented to the government that he translated the warnings. Albu now tries to raise doubts about the honesty of the interpreter’s representation; he suggests that the interpreter had an incentive to keep Albu in the dark and lie to the government, in order to prevent Albu from revealing that the application was deceitful and thus exposing the Sekhon ring’s scheme. But the question whether the warnings were translated is one of fact that the IJ was entitled to resolve. He did so by finding that the translation took place, and that finding is supported by substantial evidence in the record. The documentary evidence indicated that the warnings were translated; Albu testified only that he could not recall whether this was the case, not that they definitively were not. At any rate, the IJ made a finding that Albu was not credible, and this finding is well within the realm of reason.”

Petition Denied.

13-2864 Albu v. Holder

On Petition for Review of a Final Order of the Board of Immigration Appeals, Wood, J.

INTELLECTUAL PROPERTY

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

Civil
Intellectual Property – copyright — attorney fees

Where the plaintiff obtained a declaratory judgment that he did not violate the defendant’s copyrights, he is entitled to full attorney fees.

“The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice — a form of extortion — and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service — and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even.”

Motion Granted.

14-1128 Klinger v. Conan Doyle Estate Ltd.

Motion for Award of Attorneys’ Fees in an Appeal from the United States District Court for the Northern District of Illinois, Castillo, J., Posner, J.

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles – TPR — five-sixths instruction — ineffective assistance

This is a continuation of Jimmy J.’s appeal of the order terminating his parental rights to his daughter Londyn F., who was born at the end of November of 2010. Order affirmed. This opinion will not be published.

2014AP573 In re the termination of parental rights to Londyn F.

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

Attorneys: For Appellant: Zaleski, Steven, Madison; For Respondent: Spies, Jenni E., Wauwatosa

LABOR AND EMPLOYMENT

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

Civil
Employment – ERISA — attorney fees

Where employees substantially prevailed in their dispute over plant closing benefits, they are entitled to full attorney fees.

“In further considering the case as a whole, the district court also noted the desirability of preventing other companies from cutting off or needlessly delaying benefits in a similar manner. In so reasoning, the district court properly looked at more than a short-lived, provisional victory for Bemis at one isolated point in this litigation. This tilts the third of the five factors we consider — the deterrence effect — in favor of awarding fees. In all, the five factors weigh towards the grant of attorneys’ fees.”

“Thus we conclude that the district court did not abuse its discretion in awarding attorneys’ fees to the plaintiffs. We reject Bemis’s invitation to cut the amount of the fees awarded because, as discussed, Bemis’s position as a whole throughout the case supported the award of the entire lode-star amount (minus the subtractions by the lower court discussed above).”

Affirmed.

14-1085 Temme v. Bemis Co. Inc.

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Per Curiam.

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

Civil
Employment — sex discrimination

Where an employee did not have the qualifications that her male counterparts had, the delay in promoting her was not sex discrimination.

“But Frankiewicz and Zastrow both differ in significant ways from Langenbach. Frankiewicz has a special skill — the ‘lost art’ of meat cutting — that uniquely qualified him to become an Assistant Manager heading up the meat department. He also had three years of management experience at a local Piggly Wiggly before starting work at Wal-Mart. Langenbach does not allege that she also had such qualifications. Likewise, Zastrow had two years of community college experience, which alone allowed him to meet the minimum requirements for the Assistant Manager position. Langenbach has no education past a high school diploma. Differences in experience, education, and qualifications are relevant to the similarly-situated analysis so long as the employer took them into account when making the relevant employer decisions. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). Wal-Mart’s minimum requirements for the Assistant Manager position depend heavily on schooling and experience. We do not think, given these significant differences, that a reasonable fact-finder would find Frankiewicz or Zastrow an adequate comparator for Langenbach.”

Affirmed.

14-1022 Langenbach v. Wal-Mart Stores Inc.

Appeal from the United States District Court for the Eastern District of Wisconsin, Joseph, Mag. J., Kanne, J.

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil
Professional Responsibility — public reprimand

Where attorney Joseph L. Sommers has already been suspended for conduct intertwined with the current disciplinary action, a public reprimand is appropriate.

“Attorney Sommers has previously been disciplined in a matter that included a violation of the Attorney’s Oath. As an experienced lawyer, Attorney Sommers should know that contemporaneously copying opposing counsel on correspondence relating to the matters at issue is not a mere courtesy but an ethical requirement. Without excusing the misconduct, which is serious, we are mindful that this proceeding stems from and is intertwined with the underlying disciplinary proceedings and prosecution of A.R., which elicited extraordinary and, we hope, unusual animosity between opposing counsel. On careful consideration, we deem a public reprimand sufficient to address Attorney Sommers’ misconduct in this matter.”

2012AP1965-D OLR v. Sommers

Per Curiam

Attorneys: For Complainant: Weigel, William J., Madison; MacArthur, Anne, Lake Mills; For Respondent: Sommers, Joseph L., Oregon

Wisconsin Supreme Court

Civil
Professional Responsibility — revocation

Where attorney Michael D. Mandelman committed trust account violations and this is his seventh time he has been disciplined, revocation is appropriate.

“In the present case, Attorney Mandelman did commingle his personal and business funds with client trust funds, he did convert the trust funds of clients by engaging in trust account transactions that left negative balances in his own subsidiary accounts, he did fail to deliver trust funds to clients for many years, he did keep incomplete and inaccurate trust account records (such that determining who is still owed money is a very difficult task), and he did on multiple occasions file income tax returns that were recklessly false, whether because of failing to report income or because of claiming expenses to which he was not entitled. He showed a multi-year lack of diligence in one matter, failed to notify a client of his suspension in another, and also gave a false affidavit to the OLR. Moreover, this is not the first time that Attorney Mandelman is being disciplined for his misconduct. It is the seventh time, and the fifth time that his misconduct has been serious enough to warrant having his license to practice law suspended. We think that it is not improper to say that Attorney Mandelman’s conduct is as serious as the misconduct in Gedlen, Sheehan, and Weigel, and that, in light of his lengthy disciplinary history, he should receive the same sanction that they did, namely the revocation of their licenses to practice law in this state.”

2011AP584-D OLR v. Mandelman

Per Curiam.

Attorneys: For Appellant: Mandelman, Michael D., Mequon; Nicolet, Spiros S., Milwaukee; Andrews, Paul J., Boston; For Respondent: Spoke, Julie Marie, Madison

PROPERTY

Wisconsin Court of Appeals

Civil
Property — adverse possession

This case involves claims of adverse possession and a boundary line dispute involving adjoining parcels of land. Following a bench trial, the circuit court denied the adverse possession claims. The court also issued an order that in effect corrected or reformed the language in warranty deeds created in 1918, so that the property descriptions now conform to the intentions of the parties who created the deeds. The court concluded that the parties intended in 1918 that the boundary line between the parcels would run down the middle of a driveway that the circuit court found has been used, in its present location, since before the 1918 deeds were created. Also included in the 1918 deeds are complementary, express right-of-way easements on either side of the boundary line, one easement for each set of property owners.

The owners of the more northern parcel, James and Jodi McGraw, appeal the order on a variety of grounds. These include an argument that there was “no evidentiary basis” for the court to establish the boundary line and its associated express easements where it has, and therefore that the corrected or reformed deeds improperly shift ownership of land to the owner of the southern parcel, Mary Rosenthal. Affirmed. Not recommended for publication in the official reports.

2013AP1601 Rosethal v. McGraw

Dist IV, Iowa County, Dyke, J., Blanchard, P.J.

Attorneys: For Appellant: Kassner, John A., III, Madison; For Respondent: Jackson, Robert J., Dodgeville; Johnson, Curtis, Dodgeville

PUBLIC HEALTH

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

Civil
Public Health — disability benefits — judicial review

A disability claimant is entitled to an opportunity to show good cause for not requesting a hearing after a denial of benefits.

“We conclude that Watters is wrongly decided. We recognize that there is an established conflict on this issue, with McNatt and Shrader favoring Boley and a greater number of circuits, including Rios (see page 3 above) and the panel in Watters, the other way. Watters relied on Ortego v. Weinberger, 516 F.2d 1005, 1007–08 (5th Cir. 1975), and Cappadora v. Celebrezze, 356 F.2d 1, 4 (2d Cir. 1966). Cappadora long preceded both Salfi and Eldridge; Ortega came between those cases and did not discuss Salfi other than to observe that 28 U.S.C. §1331 does not supply jurisdiction in Social Security cases. Yet neither the Second Circuit nor the Fifth Circuit has changed course after Eldridge. The Sixth and Tenth Circuits have adopted the same view, see Hilmes v. Secretary of HHS, 983 F.2d 67 (6th Cir. 1993); White v. Schweiker, 725 F.2d 91 (10th Cir. 1984). The Third Circuit has held that constitutional arguments, but not others, can be entertained when the agency does not hold an oral hearing. Penner v. Schweiker, 701 F.2d 256, 260 (3d Cir. 1983).”

“The prospect of moving from one side of a conflict to another is not attractive, especially when the conflict is so old and the Supreme Court has been content to allow the disagreement to continue. Nonetheless, we have a duty to apply §405(g) the way the Supreme Court did in Salfi and Eldridge, and we very much want to give the statute a reading that avoids unnecessary constitutional litigation of the kind that Watters and similar decisions invite.”

Vacated and Remanded.

13-1252 Boley v. Colvin

Appeal from the United States District Court for the Southern District of Indiana, Young, J., Easterbrook, J.

TORTS

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

Civil
Torts – FTCA — detained-goods exception

Where the goods seized by the government were later declared unlawful, the owner is not entitled to compensation for the seizure.

“But Smoke Shop’s theory is unpersuasive. First, though it invokes 21 U.S.C. § 881 to support its argument that the seizure was ‘for the purpose of forfeiture’ under 28 U.S.C. § 2680(c)(1), Smoke Shop does not realize that § 881 would seem to wholly undermine its case that it meets the condition set out in § 2680(c)(2): that ‘the interest of the claimant was not forfeited.’ Putting aside the parties’ disagreement over whether the incense products constituted controlled substance analogues at the time of their initial seizure, there is now no dispute that these products are schedule I con-trolled substances as a result of the Attorney General’s scheduling them. As such, by operation of § 881(f)(1), Smoke Shop’s interest in the products was forfeited. And this result makes sense: we imagine that Congress did not intend for plaintiffs to obtain damages for lost items that were eventually deemed contraband (even if the plaintiff tried to fight that designation initially, as Smoke Shop did here). That said, the government never raised this argument about the interaction between 21 U.S.C. § 881(f)(1) and 28 U.S.C. § 2680(c)(2).”

Affirmed.

13-3921 The Smoke Shop LLC v. U.S.

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Flaum, J.

CRIMINAL OPINIONS

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

Criminal
Habeas Corpus — due process

Although a witness’ testimony was incorrect, its admission did not violate due process.

“The estimate Dr. Parks gave at Clark’s trial was clearly wrong since it would have placed Muckenstrum’s time of death several hours after Muckenstrum’s body was recovered. (The autopsy was performed at about noon the day after the body was found and eighteen hours earlier would have made the time of death about 6:00 p.m., but the body was found around 3:00 p.m.) Thus, that testimony would not help Ashburn establish an alibi and it did not “bear a direct relationship to the defendant’s guilt or innocence.” Id. In fact, Ashburn did not attempt to establish an alibi for any time frame between the last sighting of Muckenstrum and the recovery of his body. Further, as already discussed, the evidence against Ashburn was overwhelming (which explains why Ashburn didn’t present an alibi, because his alibi was Clark, his accomplice.) Ashburn cannot succeed on a due process claim based on the purported use of perjured testimony.”

Affirmed.

12-3365 Ashburn v. Korte

Appeal from the United States District Court for the Southern District of Illinois, Herndon, J., Manion, J.

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

Criminal
Possession of a firearm to further drug activity — sufficiency of the evidence

Where videotape showed the defendant in possession of a toolbox, and the toolbox contained a firearm, the evidence was sufficient to convict the defendant of possessing a firearm in furtherance of drug activity.

“The evidence supports a finding that Nicholas actually possessed the gun found in the truck’s toolbox. As previously mentioned, the video showed Nicholas standing by the toolbox when it was opened and closed both before and after the drug deal, and a gun was found inside the toolbox when the brothers were stopped a few minutes after leaving Denny’s home. His brother Constantino already had one gun on his waistband, so it is hard to understand why he would need another and plausible for the jury to believe, based on this evidence, that it was Nicholas who carried that second gun into Denny’s house.”

Affirmed.

12-3896 & 13-1034 U.S. v. Cejas

Appeals from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Williams, J.

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

Criminal
Supervised Release — commencement

Where a prisoner is held in custody after expiration of his prison term, pending a decision whether to civilly commit him as a sex offender, his supervised release does not begin until he actually leaves custody.

“But even granting that the word ‘imprisonment’ often connotes a connection to a conviction, Maranda’s argument fails in the specific instance of § 3624(e)’s commencement provision. This is because the very next sentence of § 3624(e) — the tolling provision — uses the phrase ‘imprisonment in connection with a conviction.’ Why would Congress specify this link to a conviction if ‘imprisonment’ necessarily implied it? See Neuhauser, 745 F.3d at 128–29 (making this same point). Maranda’s understanding therefore runs headlong into the ‘cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).”

Affirmed.

13-3917 U.S. v. Maranda

Appeal from the United States District Court for the Central District of Illinois, Darrow, J., Flaum, J.

CRIMINAL PROCEDURE

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

Criminal
Criminal Procedure — breach of plea agreement

Where the government honored its plea agreement, despite acknowledging that the actual relevant conduct was greater than agreed, the government did not breach the agreement.

“But the government, throughout the hearing, honored its commitment to recommend a quantity lower than 280 grams. Cf. Diaz-Jimenez, 622 F.3d at 696 (prosecutor’s statement that the least amount is that which was bargained for in the plea agreement but that ‘a larger sentence could be appropriate’ is ‘a serious breach’). And Davis received the full benefit of the plea agreement, despite the government’s initial under-calculation of the drug quantity. See United States v. Feichtinger, 105 F.3d 1188, 1191 (7th Cir. 1997) (‘If the government, in effect, does a little less than it promised, but actually does something which may be more likely to yield good results for a defendant, then it has not breached its end of a plea agreement.’). The government, while acknowledging that it had under-calculated the quantity of drugs attributable to Davis, nonetheless repeatedly stood by its position that he be sentenced in accordance with the plea agreement. See United States v. Salazar, 453 F.3d 911, 914–15 (7th Cir. 2006) (no substantial breach when the government recommended the amount in the plea agreement despite referring to the defendant as a ‘cold-blooded killer’ at sentencing); United States v. Rachuy, 743 F.3d 205, 209 (7th Cir. 2014) (‘The government honored its obligation in that it never advocated for a higher sentence’ and ‘on numerous occasions, recommended that Rachuy receive the agreed-upon … sentence.’). Moreover, Davis’s proposed remedy, that the plea agreement be rescinded, would possibly subject him to a greater sentence. The fact remains that, despite all of the confusion regarding the drug quantity following Davis’s objections, the government recommended and Davis received exactly what was written in the plea agreement. Accordingly, we do not find a breach warranting rescission of the agreement.”

Affirmed.

13-1978 U.S. v. Davis

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Kanne, J.

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

Criminal
Criminal Procedure — successive appeals

A defendant’s failure to present evidence of his low IQ at sentencing is not a new factor requiring that his federal death sentence be vacated.

“No court of appeals has deemed §2255 ‘inadequate or ineffective’ just because counsel failed to take maximum advantage of the opportunity it extends. To get anywhere, Webster must persuade us not only to break new ground but also to hold that the changes to §2255 made in 1996 by the Antiterrorism and Effective Death Penalty Act — and particularly the addition of §2255(h), which limits second or successive petitions to those that satisfy a short list of conditions — made §2255 ineffective. In other words, he must persuade us that the AEDPA is self-negating, that by restricting the number of §2255 petitions Congress indirectly authorized an unlimited number of §2241 petitions seeking the same relief. At oral argument, Webster’s counsel was explicit: He asked us to apply pre-1996 law and to hold that an additional collateral attack is proper whenever the prisoner does not abuse the writ. That would write §2255(h) and 28 U.S.C. §2244(b) out of the United States Code. Yet courts do not interpret statutes to make revisions self-cancelling. We have held that §2255(h) does not make §2255 as a whole inadequate or ineffective. See Unthank v. Jett, 549 F.3d 534, 535–36 (7th Cir. 2008); Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002). Webster does not persuade us to change course.”

Affirmed.

14-1049 Webster v. Caraway

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Easterbrook, J.

EVIDENCE

Wisconsin Supreme Court

Criminal
Evidence – relevance — harmless error

Although it was error to exclude relevant evidence, the error is harmless.

“Because Venske’s testimony was relevant to Hunt’s theory of defense and corroborated his version of events, we hold that the circuit court erred in excluding the testimony. However, we conclude that the State met its burden of proving that it is ‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,’ State v. Harvey, 2002 WI 93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)), and thus, the error was harmless. We further determine that Hunt’s ineffective assistance of counsel arguments fail under the two-part inquiry of Strickland v. Washington, 466 U.S. 668, 687 (1984). We conclude that, under the totality of the circumstances, Hunt received a fair trial, and our confidence in the judgment is not undermined. Accordingly, we reverse the decision of the court of appeals and reinstate the circuit court’s judgment of conviction and affirm its denial of Hunt’s post-conviction motion.”

Reversed.

2012AP2185-CR State v. Hunt

Gableman, J.

Attorneys: For Appellant: Ehmann, Joseph N., Madison; Fite, Shelley, Madison; For Respondent: Pray, Eileen W., Madison; Beck, Theresa A., Jefferson

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — reasonable suspicion — community caretaker exception

Corina Ducharme appeals an order of the circuit court affirming a judgment of the municipal court of the City of La Crosse, finding her guilty of first-offense operating while intoxicated. Ducharme argues that the stop of her vehicle was neither supported by reasonable suspicion, nor justified by the community caretaker exception. The circuit court’s order is affirmed. This opinion will not be published.

2014AP374 City of La Crosse v. Ducharme

Dist IV, La Crosse County, Horne, J., Kloppenburg, J.

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Ryan, Daniel P., La Crosse

Wisconsin Court of Appeals

Criminal
Motor Vehicles — implied consent — probable cause

Robert Kowalis appeals from the judgment of conviction in which he was found guilty of unlawfully refusing to take a test for intoxication after arrest. He contends the circuit court erred in concluding that the city of Sheboygan police officer who arrested him for operating while intoxicated had probable cause to do so and thus had probable cause to request that Kowalis take a test for intoxication. Because we conclude, as the State argues, that the officer did have probable cause to arrest Kowalis and request a test for intoxication, we affirm. This opinion will not be published.

2014AP258 In the matter of the refusal of Robert J. Kowalis

Dist II, Sheboygan County, Stengel, J., Gundrum, J.

Attorneys: For Appellant: Obear, Kirk B., Sheboygan; Mroczkowski, Melissa Louise, Sheboygan; For Respondent: Wagner, Mary T., Sheboygan

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — reasonable suspicion

Bradley Magdzas appeals a judgment of conviction for operating with a prohibited alcohol concentration, second offense. He argues the circuit court erred by denying his suppression motion because the officer unlawfully stopped his vehicle without reasonable suspicion and because the officer unlawfully asked for his driver’s license and questioned him. This court rejects Magdzas’s arguments and affirms. This opinion will not be published.

2014AP250-CR State v. Magdzas

Dist III, Douglas County, Glonek, J., Cane, J.

Attorneys: For Appellant: Gondik, Richard S., Jr., Superior; For Respondent: Weber, Gregory M., Madison; Blank, Daniel W., Superior; Woller, Shawn N., Superior

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — reasonable suspicion

James Frank appeals a forfeiture judgment for operating while intoxicated, first offense. Frank argues that the circuit court erroneously exercised its discretion by reopening the case for additional evidence and that the officer unlawfully stopped his vehicle. This court rejects Frank’s arguments and affirms. This opinion will not be published.

2013AP2597 City of Bloomer v. Frank

Dist III, Chippewa County, Cameron, J., Cane, J.

Attorneys: For Appellant: Rajek, Michael M., Eau Claire; For Respondent: Lane, Benjamin J., Chippewa Falls

SEARCH AND SEIZURE

Wisconsin Supreme Court

Criminal
Search and Seizure — probation searches

Where a probationer’s probation officer had reasonable suspicion that he was pursuing a relationship with a 15-year-old girl, the warrantless search of his computer was constitutional.

“We hold the circuit court properly denied Purtell’s motion to suppress. A probation agent’s search of a probationer’s property satisfies the reasonableness requirement of the Fourth Amendment if the probation agent has ‘reasonable grounds’ to believe the probationer’s property contains contraband. Griffin v. Wisconsin, 483 U.S. 868, 872 (1987). The record demonstrates that the probation agent had reasonable grounds to believe Purtell’s computer, which Purtell knowingly possessed in violation of the conditions of his probation, contained contraband. Accordingly, we hold the probation search of the contents of Purtell’s computer did not violate the Fourth Amendment to the United States Constitution or Article I, Section 11 of the Wisconsin Constitution and reverse the decision of the court of appeals.”

Reversed.

2012AP1307-CR State v. Purtell

Gableman, J.

Attorneys: For Appellant: Hirsch, Eileen A., Madison; Krahn, Ellen J., Madison; For Respondent: Tarver, Sandra L., Madison

SENTENCING

Wisconsin Court of Appeals

Criminal
Sentencing — eligibility for parole

Rico Sanders, pro se, appeals from an order denying his Wis. Stat. § 974.06 (2011–12) motion for postconviction relief. He seeks relief from his sentence based on Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012).[2] We affirm. This opinion will not be published.

2012AP1517 State v. Sanders

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

Attorneys: For Appellant: Sanders, Rico, pro se; For Respondent: Loebel, Karen A., Milwaukee; Wellman, Sally L., Madison