Weekly Case Digests — Oct. 20-24, 2014

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Wisconsin Law Journal’s Case Digests — Oct. 20-24, 2014

CIVIL OPINIONS

ADMINISTRATIVE LAW

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

Administrative Law
Medicare fraud

A doctor whose Medicare reimbursements were terminated for fraud was required to exhaust his administrative remedies before filing suit.

“We previously applied Ringer’s holding to the precise question of the availability of mandamus relief in the context of Medicare reimbursement claims. See Burnett, 830 F.2d at 736–40. On that occasion, we joined a number of other circuits in concluding that mandamus relief is indeed available for Medicare claims that are procedural rather than substantive in nature. Id. at 738. Yet, when subsequently confronted with a case that posed the ‘procedural’ or ‘substantive’ question in Michael Reese, we did not decide it because ‘[t]he Supreme Court has recognized that mandamus relief is available only if a plaintiff “has exhausted all other avenues of relief and only if the defendant owes him a clear and nondiscretionary duty,”’ and the plaintiff had not satisfied the exhaustion requirement. Michael Reese, 427 F.3d at 441 (quoting Ringer, 466 U.S. at 616). Accordingly, ‘[b]ecause exhaustion of administrative remedies is a prerequisite of subject matter jurisdiction under … mandamus theories … and [plaintiff] failed to exhaust the review process … the district court properly rejected that basis for subject matter jurisdiction.’ Id. at 443. In short, the exhaustion requirement is still applicable to procedural challenges.”

Affirmed.

14-1934 Center for Dermatology and Skin Center Ltd. v. Burwell

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

CIVIL PROCEDURE

Wisconsin Court of Appeals

Civil Procedure
amended complaints — relation back doctrine

Patrick Finnegan, pro se, appeals from an order granting the motion to dismiss filed by Joe Parisi and Scott McDonnell (collectively, Parisi). Finnegan argues that: (1) the circuit court erred in granting Parisi’s motion to dismiss because Finnegan’s failure to name the proper party, Dane County, was a mistake that did not prejudice Dane County; and (2) the circuit court erred in denying his motion to amend his summons and complaint a second time because the second amended complaint was timely under the relation back doctrine. I conclude that the circuit court did not err in granting Parisi’s motion to dismiss and in denying Finnegan’s motion to amend, and, therefore, I affirm. This opinion will not be published.

2014AP907 Finnegan v. Parisi et al.

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

Attorneys: For Appellant: Finnegan, Patrick, pro se; For Respondent: Gault, David R., Madison

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

Civil Procedure
sanctions

Where the merits of the case were close, the district court did not abuse its discretion in not awarding sanctions.

“The facts of IDS are quite different from the facts here. In this case, the district court did not deny Block’s motion for attorney’s fees pursuant to any personal hostility to sanctions, but rather applied a bad faith standard by stating, ‘I know the case. I did not find anything that comes remotely close that there was no basis for the lawsuit or that it was in bad faith.’ Further, rather than expressing doubt about whether the claims in the lawsuit had any merit, the district court acknowledged that its summary judgment decision was a close call by stating, ‘I entered summary judgment in this case … . And I might be right, I might be wrong on that summary judgment … .’ Simply put, the case before us is too distinct from IDS to dictate a finding that the district court abused its discretion by denying Block’s motion for attorney’s fees. Furthermore, Block fails to offer any additional compelling support for this argument.”

Affirmed.

13-3906 & 14-1097 nClosures Inc. v. Block & Co. Inc.

Appeals from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Flaum, J.

CIVIL RIGHTS

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

Civil Rights
disability discrimination

A bank’s request for information regarding disability benefits before making a loan is not discrimination.

“Disability benefits under private programs likewise can change. One kind of program that employers provide as a fringe benefit awards payments for two years if the person can no longer do his job, but after two years only if the person cannot perform any job in the economy. Benefits under a program such as this can end without any change in the recipient’s education or physical condition. The possibility of such changes makes it prudent for potential lenders to know what kind of disability an applicant has and how that disability is treated by the public or private payor. That’s why the Equal Credit Opportunity Act permits requests for information about all public-assistance benefits. A potential lender likewise wants to know what kind of job an applicant holds, for how long, and whether that job is likely to last — for that matter, whether the employer is likely to remain in business. Learning about the probable duration of disability benefits is no different in principle.”

Affirmed.

13-3249 Wigginton v. Bank of America Corp.

Appeal from the United States District Court for the Northern District of Illinois, Kapala, J., Easterbrook, J.

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

Civil Rights
unlawful seizure

Where a conviction is based on evidence unconnected to an allegedly unlawful seizure, the conviction does not bar a civil rights suit.

“Rollins pleaded guilty. There isn’t any doubt that he was guilty — that he’d been driving on a suspended or revoked license. If he can prove that the action of the police in forcing him to get back in his car and show them his driving papers was unconstitutional, that cannot change the fact that he was driving without a valid license. Illegal searches and seizures frequently turn up irrefutable evidence of guilt. The evidence can be suppressed if the government attempts to present it at trial, but there was no trial. A finding that the defendant was illegally seized — the finding he seeks in this suit — would therefore have no relevance to the validity of his guilty plea and ensuing conviction.”

Reversed and Remanded.

14-2115 Rollins v. Willett

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

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

Civil Rights
Eighth Amendment — preliminary relief

The district court did not abuse its discretion in refusing to order that a prisoner, alleging deliberate indifference to his medical needs, be transferred to a different doctor’s care.

“[T]he district court failed to supply rea-sons for denying preliminary injunctive relief. Ordinarily we would remand the case and require the court to supply those reasons. See Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996); Sims v. Lucas, 9 F.3d 1293, 1294 (7th Cir. 1993); DiLeo v. Ernst & Young, 901 F.3d 624, 626 (7th Cir. 1990). But that step is not necessary here because, even ignoring the lack of advance notice to Dr. Talbot, there is enough in this record to demonstrate that the requested relief — immediate referral to another doctor — is unwarranted. Wheeler’s h. pylori claim provides no basis for a preliminary injunction because the lab results on which he relies refute that claim. Nor has Wheeler presented evidence that could support an immediate referral to treat his keloids. He asks us to rely on the medical records attached to his brief, but those records, which relate to two appointments with the prison’s medical staff, do not help him. The records reflect that Wheeler told the staff that his keloids hurt and ‘periodically ooze[] puss [sic].’ But the staff noted in those records that he showed no ‘obvious discomfort” and observed that his ‘skin integrity is intact’ and his keloids are ‘small.’ Staff also instructed Wheeler to take acetaminophen for pain relief and to return if his symptoms got worse. This evidence, which is all that he supplied, shows neither that Wheeler will experience irreparable harm without a preliminary injunction nor that his deliberate-indifference claim against Dr. Talbot has a reasonable likelihood of success. Because Wheeler does not meet the requirements for preliminary relief, see Munaf v. Geren, 553 U.S. 674, 690 (2008); Stuller, Inc. v. Steak N Shake Enters., 695 F.3d 676, 678 (7th Cir. 2012), the district court did not abuse its discretion in denying Wheeler’s motion.”

Affirmed.

13-3294 Wheeler v. Talbot

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Wood, J.

CONSUMER PROTECTION

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

Consumer Protection
VPPA

Providing access to a customer database to an outsourced customer service operations company does not violate the Video Privacy Protection Act.

“If it is permissible to disclose PII to Stream in order to respond to a customer’s call, there is nothing objectionable about Redbox’s wholesale disclosure of information pertaining to all customers, for use in the event of such a call. Likewise, plaintiffs take issue with Stream’s use of customer PII during training exercises in advance of such calls, but—again—the purpose underlying Redbox’s disclosure of the PII is proper. Disclosure of customer information for training purposes may not be incident to a specific customer service request, but it is, of course, incident to the request processing function that Stream serves.”

Affirmed.

13-3037 Sterk v. Redbox Automated Retail LLC

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

CONTRACTS

Wisconsin Court of Appeals

Contracts
breach — damages

Jamie R. Davila appeals from a judgment dismissing his breach of contract claim against National Muffler & Food Mart, Inc. Davila contends that the trial court erred by not awarding him the amount he paid to a third party to perform the work that he had hired National to perform.

We affirm the trial court. Davila’s contract with National called for National to manufacture a product that met national certification standards, and when an inspection found that an adjustment was needed to the product before certification would be granted, Davila’s remedy for the breach was the cost of the adjustment. As Davila offered no evidence as to the cost of the adjustment, the court properly dismissed his action against National. This opinion will not be published.

2014AP1237-FT Davila v. National Muffler & Food Mart Inc.

Dist II, Racine County, Jude, J., Reilly, J.

Attorneys: For Appellant: Sellergren, Mick H., Lake Geneva; For Respondent: Bornstein, Ronald, Milwaukee

Wisconsin Court of Appeals

Contracts
breach — damages

Burlington Pavers Leasing, LLC, of Racine, leased to David Montoya Construction, Inc., of New Mexico, a mobile plant used to produce concrete. In 2011, after five years of plant use by Montoya, Burlington initiated this action for replevin of the plant and damages against Montoya. Burlington alleged that Montoya was unjustly enriched and had breached a series of written and oral or implied leasing agreements between the parties, including by failing to: pay Burlington all rent due on the plant; properly repair and maintain the plant; and return the plant to Burlington.

Montoya counterclaimed, alleging that Burlington had breached agreements to deliver an operational plant to Montoya in the first place, or to pay for needed repairs to the plant, and had failed to notify Montoya that Burlington intended to bill Montoya based on a monthly volume usage basis for those months in which the volume of concrete that Montoya produced would generate a larger rent payment than under a base or minimum monthly fee of $15,000. At trial, the jury made findings that included the following: during the final phase of the parties’ contractual relationship, after the second of two written contracts between the parties had expired, Montoya breached an oral or implied agreement regarding rent payments, resulting in damages to Burlington of $329,825. This involved a dispute over the volume usage versus base rate methods of calculating monthly rent payments, with the jury finding that Burlington was entitled to the higher payments.

In its appeal, Montoya argues that the circuit court erred in failing to grant judgment notwithstanding the verdict in its favor regarding the rent payment damages against Montoya found by the jury, based on the legal theory of account stated. We reject this argument based on forfeiture, because Montoya failed to present to the circuit court the account stated legal theory that it pursues on appeal and has now abandoned other legal theories it did present to the circuit court.

Burlington cross-appeals regarding a separate jury finding regarding repair and maintenance of the plant. The jury answered “no” when asked if Montoya breached either of the two written leases or the oral or implied agreement by failing to properly repair and maintain components of the plant. Burlington argues that the circuit court should have changed the answer to this question to “yes,” because the evidence was insufficient to sustain a verdict of no breach regarding proper repair or maintenance. We reject this argument on the grounds that the jury was presented with sufficient evidence to conclude that Montoya followed a mode of plant repair and maintenance called for in the agreements of the parties in light of the condition of the plant when Montoya received it from Burlington and its condition when Burlington took it back.

Separately, we reverse a circuit court decision denying Burlington’s attorney’s fees arising from a separate action filed by Montoya in New Mexico, but we affirm a decision denying Burlington’s attorney’s fees arising from this action. Not recommended for publication in the official reports.

2013AP1482 Burlington Pavers Leasing LLC v. David Montoya Construction Inc. et al.

Dist II, Racine County, Jude, J., Blanchard, P.J.

Attorneys: For Appellant: Armstrong, Thomas, Milwaukee; Nelson, Steven L., Milwaukee; Fronk, Nathan S., Milwaukee; For Respondent: Leavell, Jeffrey L., Racine; Koppes, Christopher John, Racine

FAMILY

Wisconsin Court of Appeals

Family Law
physical placement — child support

Beau Ellenbecker, pro se, appeals an order modifying physical placement and child support with respect to his son, K.O.E. He raises three main issues on appeal. First, he argues the circuit court applied an incorrect legal standard when modifying Ellenbecker’s periods of physical placement. We agree. We therefore reverse in part and remand for the court to reconsider the extent of Ellenbecker’s periods of physical placement with his son. This opinion will not be published.

2013AP1250 In re the paternity of K.O.E.: State et al. v. Ellenbecker

Dist III, Outagamie County, Des Jardins, J., Per Curiam

Attorneys: For Appellant: Ellenbecker, Beau J., pro se; For Respondent: England, Traycee S., Appleton; Schroeder, Mark G., Appleton; Redmann, Crystal R., pro se

INTELLECTUAL PROPERTY

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

Intellectual Property
copyright — statute of limitations

Inquiry notice is insufficient to begin tolling the statute of limitations for copyright infringement.

“Merck involved a statutory discovery rule; in copyright cases the discovery rule is a common-law gloss. Still, Merck clarified that ‘inquiry notice’ is not a substitute for actual or constructive discovery, and that clarification is instructive here. The concept of inquiry notice may help to identify the time at which a reasonable plaintiff can be expected to start investigating a possible violation of his rights, but it does not itself trigger the statute of limitations. Accordingly, the district court should not have used inquiry notice as the starting date for the statute of limitations.”

Reversed and Remanded.

12-3037 Chicago Building Design P.C. v. Mongolian House Inc.

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

JUVENILES

Wisconsin Court of Appeals

Juveniles
sex offender registration

Jermaine C. appeals from the circuit court’s order requiring him to register as a sex offender for fifteen years pursuant to Wis. Stat. §§ 938.34(15m) and 301.45. Jermaine argues that when the circuit court “stayed” sex offender reporting in its original dispositional order it entered a permanent stay pursuant to § 938.34(16). As such, Jermaine argues that the circuit court erred when it later found that it had only deferred deciding the issue of reporting and required Jermaine to show by clear and convincing evidence that he was entitled to the stay. Because the record shows that the circuit court only intended to defer deciding whether to enter a permanent stay pursuant to § 938.34(16), we affirm. This opinion will not be published.

2014AP467 In the interest of Jermaine C.

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

Attorneys: For Appellant: Alesia, Susan E., Madison; For Respondent: Stoiber, John M., Milwaukee

Wisconsin Court of Appeals

Juveniles
TPR — judicial bias

Jermaine K. H. appeals from a final order involuntarily terminating his parental rights in April 2014. He argues that the judge who entered the order should have recused himself because he was the Manitowoc county district attorney when Jermaine was prosecuted for violent acts against the child’s mother in 2012. Jermaine argues that recusal was mandatory because the criminal case was the same “matter in controversy” as the TPR under SCR 60.04 and because reasonable persons would question the judge’s impartiality under the circumstances. Jermaine further argues that the proceedings violated his due process rights and that he is entitled to a new trial.

This record reveals no basis for judicial disqualification under Wis. Stat. § 757.19(2) nor any evidence of a probability of actual bias rising to the level of a due process violation. We affirm. This opinion will not be published.

2014AP1693 In re the termination of parental rights to Sydney E.J.

Dist II, Manitowoc County, Rohrer, J., Brown, C.J.

Attorneys: For Appellant: Kachinsky, Leonard D., Appleton; For Respondent: Vesely, Lawrence G., Green Bay

LABOR AND EMPLOYMENT

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

Employment
ADA — accommodation

The district court erred in ruling on summary judgment that a nursing home could refuse to employ a hairdresser who was unable to move the patients around the facilities in wheelchairs.

“What the best estimate of the plaintiff’s time spent wheeling is can’t be determined on a motion for summary judgment. A trial is required. The district judge thought the disparity in time estimates was not a real dispute because, however much or little time the plaintiff had spent before her operation in pushing wheelchairs, it was an essential part of her job. But it wasn’t essential if it was so small a part that it could be reassigned to other employees at a negligible cost to the employer.”

“The district judge also thought the plaintiff’s estimate of the time she had spent pushing wheelchairs ‘vague and inconclusive,’ yet he said nothing about the implausibility of Wall’s estimate of how much time the plaintiff had devoted to that task. Again the judge was attempting to resolve a genuine factual dispute without a trial.”

Reversed and Remanded.

13-3661 Kauffman v. Petersen Health Care VII LLC

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

MUNICIPALITIES

Wisconsin Court of Appeals

Municipalities
tavern licenses — renewal

Jonathan Racine appeals an order affirming the Town of Conover’s decision to renew a liquor license issued to James and Anne Tilt, owners of the Sundown Tavern. Racine argues the Town erred by renewing the Tilts’ license because the Tilts failed to show that they actively used the license for 13 consecutive weeks during the previous licensure period, as required by a Town ordinance. In response, the Town and the Tilts argue the evidence supports the Town’s finding of 13 weeks of active use. They also argue Racine’s appeal is moot because the license at issue has expired.

We conclude Racine’s appeal is not moot. We therefore review his arguments on the merits. Given our deferential standard of review, we conclude the Town properly renewed the Tilts’ liquor license. Accordingly, we affirm. This opinion will not be published.

2014AP957 Racine v. Town of Conover

Dist III, Vilas County, Nielsen III, J., Per Curiam

Attorneys: For Appellant: Kost, Keith K., Rhinelander; Strutz, Sven W., Rhinelander; For Respondent: Garbowicz, Steven C., Eagle River; Cirilli, John M., Rhinelander

Wisconsin Court of Appeals

Municipalities
notice of claim — class actions

Where a notice of claim on behalf of a class identified the claimants, their addresses, and their claim amounts, and was signed by an attorney asserting that he represented all of the claimants, it was error for the trial court to dismiss the case.

“Nothing in WIS. STAT. § 893.80(b) makes any reference to the requirement that the claimants’ notice show the claim is being made ‘by their authority.’ We presume this is why Markweise considered ‘authority’ to be a subsec. (a) requirement, not a subsec. (b) requirement. See Markweise, 205 Wis. 2d at 219 (‘reference to persons as of yet unidentified does not satisfy the “written notice of the circumstances of the claim” requirement of § 893.80(1)(a)’). Considering ‘authority’ to bring multiple-party claims as part of the § 893.80(1d)(a) requirements makes sense, since that is the subsec. that requires a notice ‘signed by the party, agent or attorney.’ Because failure to fulfill the subsec. (a) requirements ‘shall not bar’ action if there was actual notice and lack of prejudice, Markweise therefore went on to consider whether the government could be deemed to have ‘actual notice’ of the unnamed claimants’ claims. See Markweise, 205 Wis. 2d at 219-22. In light of the fact that the ‘authority’ requirement arises under § 893.80(1d)(a), the District’s concession on appeal that compliance with § 893.80(1d)(a) is not properly before us in this appeal is dispositive.”

Reversed.

Recommended for publication in the official reports.

2013AP2839 Townsend v. Hopfensperger

Dist. II, Winnebago County, Seifert, J., Brown, J.

Attorney: For Appellant: Hertel, Charles J., Oshkosh; Mynsberge, Heath G., Oshkosh; For Respondent: Stadler, Ronald S., Milwaukee; Graf, Aaron J., Milwaukee

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Professional Responsibility
suspension

Where attorney Everett E. Wood engaged in trust account violations and failed to communicate with a client and the OLR, a 90-day suspension is appropriate.

“Here, we agree with the referee that the allegations in the OLR’s complaint have been established and that Attorney Wood engaged in the seven counts of misconduct alleged in the complaint, as stipulated by the parties. We further agree that a 90-day suspension is an appropriate sanction for Attorney Wood’s misconduct and we agree that he should pay the full costs of the proceeding.”

2013AP1791-D OLR v. Wood

Per Curiam.

Attorneys: For Complainant: Hendrix, Jonathan E., Madison; For Respondent: Wood, Everett E., Hubertus

PROPERTY

Wisconsin Court of Appeals

Property
foreclosure

Bret Bogenschneider appeals a judgment of foreclosure in favor of AnchorBank and an order granting summary judgment in favor of AnchorBank on counterclaims filed by Bogenschneider. For the reasons discussed below, we affirm. This opinion will not be published.

2014AP449 AnchorBank FSB v. Bogenschneider et al.

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

Attorneys: For Appellant: Bogenschneider, Bret N., pro se; For Respondent: Rodriguez, Chaz, Brookfield; Schmeling, Sara, Brookfield; Johnson, Alyssa Ann, Brookfield

CRIMINAL OPINIONS

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

Habeas Corpus
breach of plea agreement

Where the state did not breach the plea agreement, defense counsel was not deficient for failing to object.

“Here, the prosecutor addressed the pertinent sentencing factors that the court had to consider, and recommended a sentence of twenty years. We agree with the state court and district court that the prosecutor’s remarks did not undermine the State’s sentence recommendation and ‘balance[d] [the state’s] duty to convey relevant information to the sentencing court against its duty to honor the plea agreement.’ Although the prosecutor’s arguments emphasized negative information, it seems that there wasn’t much positive to be said about Campbell or the offense. Further, the prosecutor’s arguments supported the position that a significant sentence was appropriate. A bifurcated sentence of twenty years is not an insignificant sentence, and five to seven years is not a short term of imprisonment. With one possible exception addressed below, we conclude that the state court reasonably determined that the prosecutor’s resentencing arguments did not materially and substantially breach the plea agreement.”

Affirmed.

13-3780 Campbell v. Smith

Appeal from the United States District Court for the Western District of Wisconsin, Reinhard, J., Tinder, J.

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

Mail fraud
intent

Neither actual nor intended tangible harm is an element of the offense of honest-services mail fraud.

“The Skilling Court, Nayak argues, did not explicitly determine what elements are required to prove a violation of § 1346 by a private actor. True, but it did not need to: it is contradictory to require the government to show actual or intended tangible harm when the crime being prosecuted is defined as causing or intending to cause intangible harm. Nayak’s proposed construction would not only be contrary to the plain language of the statute but would also mean that § 1346 is superfluous, as fraudulent schemes causing tangible harm are covered under § 1341.”

Affirmed.

14-1404 U.S. v. Nayak

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

Wisconsin Court of Appeals

Probation
revocation

Ryon Reese appeals an order denying his petition for a writ of habeas corpus in which he alleged ineffective assistance of counsel at a probation revocation hearing. His probation was revoked based on a finding that he sexually assaulted a child. He argues that his counsel was ineffective in three main respects: (1) deciding not to call the victim to testify at the revocation hearing; (2) calling his former wife, the victim’s mother, to testify without having personally interviewed her; and (3) using his adult daughter rather than a private detective to gather information. Because we conclude that Reese failed to establish deficient performance or prejudice from his counsel’s performance, we affirm the order. This opinion will not be published.

2013AP1314 State ex rel. Reese v. Grams

Dist IV, Columbia County, George, J., Per Curiam

Attorneys: For Appellant: Reese, Ryon S., pro se; For Respondent: Russomanno, Anthony, Madison

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

Sex Trafficking
sufficiency of the evidence — interstate commerce

Where the defendant used an interstate legitimate business as a front for criminal activity, the evidence was sufficient to satisfy the interstate commerce element.

“As noted above, the Government presented evidence that the Day and Night Spa advertised online, purchased supplies and promotional materials from out-of-state, ordered satellite television, internet and telephone service from out-of-state companies, and employed workers from out-of-state. Cf. Clausen, 328 F.3d at 712 (stating that a similar spa is a ‘good example of a commercial establishment “in” interstate commerce’ for the purposes of the Hobbs Act). Although Campbell operated the Day and Night Spa as a ‘clean’ spa where prostitution did not occur, the jury could reasonably find that the Day and Night Spa was an integral part of Campbell’s overall massage and prostitution business, which encompassed several related spas. The jury could reasonably find that the Day and Night Spa provided a cover for the money Campbell received illicitly through prostitution, and a source of legitimate masseuses Campbell could use when he feared law enforcement was investigating the other spas. The jury also could reasonably find that Campbell used the Day and Night Spa as a recruitment tool for convincing prospective Family members that they would not be required to perform ‘extras’, and instead would perform massages in a prostitution-free workplace. We find that, viewing the evidence in the light most favorable to the Government, all of the above evidence, in combination, is sufficient to satisfy the interstate commerce element of the TVPA.”

Affirmed.

12-3724 U.S. v. Campbell

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

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal Procedure
plea withdrawal

James Hill appeals orders denying his postconviction motion filed under Wis. Stat. § 974.06 (2011-12). We affirm. This opinion will not be published.

2013AP2020, 2013AP2021 State v. Hill

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

Attorneys: For Appellant: Hill, James Parrish, pro se; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal Procedure
Miranda warnings — custody

David Myhre appeals a judgment of conviction for possession of a deer during the closed season and three counts of failure to attach an ear tag to a deer carcass. Myhre argues that the circuit court erred in denying his motion to suppress evidence obtained during an interview with a Wisconsin Department of Natural Resources warden because Myhre was in custody at the time of the interview but was not advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). For the following reasons, I affirm. This opinion will not be published.

2014AP376-CR State v. Myhre

Dist IV, Crawford County, Czajkowski, J., Blanchard, P.J.

Attorneys: For Appellant: Key, Daniel, Prairie du Chien; For Respondent: Weber, Gregory M., Madison; Baxter, Timothy C., Prairie du Chien

Wisconsin Court of Appeals

Criminal Procedure
plea withdrawal — ineffective assistance

Timothy Svea appeals an order denying his Wis. Stat. § 974.06 motion to withdraw his guilty plea. He contends his trial counsel was ineffective for failing to consider or discuss possible defenses. Because Svea’s motion lacked sufficient specificity to establish ineffective assistance of counsel, we affirm the order. This opinion will not be published.

2014AP30 State v. Svea

Dist III, Marathon County, Moran, J., Per Curiam

Attorneys: For Appellant: Walsh, Adam, Madison; For Respondent: Heimerman, Kenneth J., Wausau; Johnson-Karp, Gabe, Madison

EVIDENCE

Wisconsin Court of Appeals

Evidence
other acts

Sean Pugh appeals a judgment of conviction for multiple drug crimes. He argues the circuit court erred by admitting other acts evidence and by allowing the State to amend the Information to add party-to-a-crime modifiers to each of the charges. We reject Pugh’s arguments and affirm. Not recommended for publication in the official reports.

2013AP1522-CR State v. Pugh

Dist III, Brown County, Kelley, J., Hoover, P.J.

Attorneys: For Appellant: Gramstrup, Chris A., Superior; For Respondent: Pray, Eileen W., Madison; Lasee, David L., Green Bay

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

Evidence
other acts — harmless error

Although it was error to admit evidence of a prior methamphetamine conviction, the error was harmless.

“Of course, the government is not free to introduce all sorts of evidence simply because the defense opened the door to one piece of evidence. Defense counsel did not open the door to evidence of who possessed the methamphetamine in the house. As we mentioned, Wyatt’s admission to possessing those drugs came out during the government’s direct examination. So the government was in no position to cure a problem that its own witness created on direct examination by impeaching the witness with Schmitt’s conviction for the methamphetamine. That would be extremely prejudicial to Schmitt, since he was not the one testifying and did not open the door to that evidence. See Fed. R. Evid. 609 (allowing the government to impeach a witness by evidence of a criminal conviction, but subject to Rule 403). The defense, through its questioning of Wyatt, contested motive and made evidence going to that issue more probative. But the defense’s questioning did not make the issue of who possessed the user quantity of methamphetamine that was found in Schmitt’s home any more relevant. Since information that Schmitt was convicted of possessing the meth-amphetamine was part of the conviction record, but was not relevant for any purpose other than to impeach the government’s witness, the district court should have redacted the portion of the conviction record pertaining to the methamphetamine, or simply allowed the government to read the relevant portion of the conviction into the record. But the prosecution’s case would not have been ‘significantly less persuasive had the improper evidence been excluded.’ Loughry, 660 F.3d at 975. There was already ample evidence before the jury to suggest that Schmitt was a drug dealer, which could lead a reasonable juror to infer that he had a reason to have a firearm. Being a user of drugs does not necessarily carry the same connotation, so removing the additional evidence that Schmitt used methamphetamine and pills would not have made the government’s case that he possessed the firearm ‘significantly less persuasive.’ So we find that the error in admitting it was harmless.”

Affirmed.

13-2894 U.S. v. Schmitt

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

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

Evidence
other acts — harmless error

Although it was error to admit evidence of prior methamphetamine possession, the error was harmless.

“Stacy concedes that there was sufficient evidence to convict him but insists that the admission of the bag of meth-amphetamine nonetheless prejudiced his case because of the powerful effect of physical evidence on a jury. This argument might be more persuasive if the bag was the only physical evidence linking him to the manufacture of methamphetamine, but it was not. The government showed the jury the scale found in Stacy’s bedroom, along with analysis from a forensic scientist that there was methamphetamine residue on the scale and testimony confirming that the scale was used to weigh methamphetamine. The jury also saw the glass smoking pipe found at Stacy’s arrest and heard testimony from a coconspirator about him using a pipe to smoke methamphetamine.”

“In light of this compelling evidence of Stacy’s knowledge and intent, we are not convinced that the government’s case would have been significantly less persuasive without the evidence of Stacy’s prior drug possession. As in Gomez, the government’s case here was strong, and the district court’s error in admitting the evidence of prior acts under Rule 404(b) was harmless.”

Affirmed.

13-3551 U.S. v. Stacy

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Tinder, J.

OWI

Wisconsin Court of Appeals

Motor Vehicles
OWI — reasonable suspicion

David C. Marker appeals from his conviction of operating his vehicle while intoxicated with children under the age of sixteen as passengers. Marker contends that the circuit court erred in denying his motion to suppress evidence on grounds that the community caretaker function justified stopping his vehicle when his former wife called police to report her fear that he was driving while intoxicated with their children in the vehicle. We affirm on different grounds, namely, that the tip created reasonable suspicion that justified the stop. This opinion will not be published.

2014AP1122-CR State v. Marker

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

Attorneys: For Appellant: Zellner, Kiley, Milwaukee; For Respondent: Weber, Gregory M., Madison; Bayer, Bryan C., Waukesha

SENTENCING

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

Sentencing
reasonableness

A 90-year sentence for sexually assaulting three children is not unreasonable.

“Horton has not demonstrated that his de facto life sentence is unreasonable. Although a sentence that is effectively for life ‘is not to be ordered lightly,’ we have upheld such sentences where the sentencing judge recognized ‘the likelihood of a defendant’s death in prison, but concluded that other factors warranted the particular sentence.’ United States v. Vallar, 635 F.3d 271, 280 (7th Cir. 2011) (internal quotation marks and citation omitted); see United States v. Noel, 581 F.3d 490, 492–93, 500–01 (7th Cir. 2009) (80-year sentence reasonable for producing child pornography where defendant did not molest victim); United States v. Chapman, 694 F.3d 908, 915–16 (7th Cir. 2012) (40-year sentence reasonable for 46-year-old defendant who produced child pornography). Here, the district court appropriately weighed Horton’s age and difficult upbringing, see 18 U.S.C. § 3553(a)(1), against the ‘extremely serious nature of this crime’ and the vulnerability of the victims, see id. § 3553(a)(1), (a)(2)(A); New York v. Ferber, 458 U.S. 747, 758–60 & n.9–10 (1982), the need to protect the public from a dangerous child molester, see 18 U.S.C. § 3553(a)(2)(A), (C), and the availability of sex-offender treatment in prison, see id. § 3553(a)(2)(D). And though Horton would have preferred the district court to have given more weight to his dysfunctional childhood, the court had the discretion to assign it less weight than the other § 3553(a) factors. See United States v. Smith, 721 F.3d 904, 908 (7th Cir. 2013).”

Affirmed.

14-1559 U.S. v. Horton

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

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

Sentencing
mandatory minimums

Where the defendant was an armed career criminal and was convicted of possessing a firearm after a felony conviction, the district court lacked authority to impose a sentence below 15 years.

“We begin with the Government’s appeal and conclude that Mr. Moody’s sentence must be corrected. The district court appropriately accepted the parties’ conclusion—confirmed by the unchallenged presentence report—that Mr. Moody’s Florida conviction for the armed burglary of a dwelling is a violent felony under the ACCA. The district court, therefore, had no authority to ignore the conviction because of its age or its underlying circumstances. Such considerations are irrelevant in determining predicate offenses under the Act. Although the sentencing guidelines are discretionary, a district court may not disregard a minimum sentence required by statute. Mr. Moody’s twelve-year sentence is illegal, and it must be corrected.”

Vacated and Remanded.

13-3875 & 13-3920 U.S. v. Moody

Appeals from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Ripple, J.

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

Sentencing
grouping

Firearm and drug offenses should not be grouped at sentencing when a sec. 924(c) count is also charged.

“With respect, we disagree with the Eighth Circuit’s interpretation of the guidelines in this situation. The introductory comment to the grouping guideline doesn’t alter the language of the relevant offense guidelines. Section 3D1.2(c) provides that grouping is required ‘[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.’ U.S.S.G. § 3D1.2(c) (emphasis added). The guidelines governing the application of offense characteristics are found in Chapter Two of the Guidelines Manual. The relevant Chapter Two guideline directs the court not to apply offense-characteristic enhancements for firearm possession when a § 924(c) conviction is in the sentencing mix. See id. § 2K2.4 cmt. n.4.”

Affirmed.

12-2604 U.S. v. Sinclair

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Sykes, J.