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Weekly Case Digests April 6-10, 2015

By: WISCONSIN LAW JOURNAL STAFF//April 10, 2015//

Weekly Case Digests April 6-10, 2015

By: WISCONSIN LAW JOURNAL STAFF//April 10, 2015//

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CIVIL

Wisconsin Court of Appeals
Administrative Law – public housing

Appellant Marian Ross appeals the circuit court’s order affirming a decision of the Housing Authority of the City of Milwaukee.[1]  The Housing Authority terminated Ross from the Section Eight Housing Choice Voucher Program because her nephew, a lifetime registered sex offender, was living with her in violation of program rules.  Ross contends that: (1) the Housing Authority’s decision is not supported by substantial evidence because she testified that her nephew did not live with her and the evidence to the contrary was hearsay; (2) the Housing Authority’s decision was arbitrary, unreasonable and represented its will, not its judgment; (3) the Housing Authority improperly switched the burden of proof to her; and (4) the Housing Authority terminated her from the program for an improper reason.  We affirm.

DISTRICT I; Milwaukee; CHRISTOPHER R. FOLEY, Curley, P.J., Kessler, J. and Thomas Cane

2014AP001217 Marian Ross v. Milwaukee City Housing Authority

U.S. Court of Appeals For the Seventh Circuit
Civil Procedure – TRIA

Under the Terrorism Risk Insurance Act, funds subject to a government license do not qualify as blocked assets.

“TRIA’s text, on at least two key points, is quite plain: (1) the only assets subject to execution are blocked assets; and (2) assets that are subject to a United States Government (‘USG’) license for final payment, transfer, or disposition, among other requirements, do not qualify as blocked assets. Because the defendant funds here are subject to such a license and have been arrested for civil forfeiture, they do not qualify as blocked assets under TRIA. Appellees’ claims under TRIA therefore must fail. Although we find Appellees possess both constitutional and statutory standing, we nevertheless vacate the district court’s grant of summary judgment in favor of Appellees. Appellees cannot prevail on the merits under TRIA.”

Vacated and Remanded.

13-3732 & 13-3738 U.S. v. All funds on Deposit with R.J. O’Brien & Associates

Appeals from the United States District Court for the Northern District of Illinois, Kennelly, J., Kanne, J.

U.S. Court of Appeals For the Seventh Circuit
Immigration – Citizenship

The State Department reasonably concluded that a passport applicant was not a natural citizen.

“There are myriad problems with this affidavit, including once again difficulties in establishing that the document was in fact created at the stated date. Mathin failed to establish the date of origin, nor was there any basis to conclude that the document was kept in a place where, if authentic, it would likely be. As the district court noted, Mathin failed to explain why Ina Nielsen would have had in her possession an original letter delivered to the Indian Consulate General in 1965. Nor is it conceivable that Nielsen would create and forward such an affidavit to establish the birth, yet not assist Mathin’s parents in simply obtaining a birth certificate for Mathin at the time of birth, particularly given Mathin’s claim that he was taken for examination to a hospital following his birth. Mathin also failed to produce any evidence that under Indian law in 1965 an undocumented infant could travel on his mother’s passport. The insurmountable obstacle to credibility, however, is the uncontested evidence that Nielsen’s signature on the April 2000 affidavit which was verified by the notary is starkly different from the signature on the 1965 affidavit. Mathin asserts that signatures may change over time, but the differences in the handwriting are so stark that Mathin acknowledged to the district court that the signatures were in fact different. Mathin submitted three greeting cards that he claimed to have received from Nielsen, and there is no dispute that those signatures were also distinct from the others; in fact the name Nielsen was even spelled differently, as ‘Nelson,’ in those cards. The district court properly determined that those disparities created a strong reason to suspect that the Nielsen affidavit was fraudulent. There is no error in that quite reasonable conclusion. In short, although Mathin has presented multiple arguments as to why the district court could have reached different fact findings in this case, he has failed to demonstrate that the district court’s findings were clearly erroneous.”

Affirmed.

14-1889 Mathin v. Kerry

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

Wisconsin Supreme Court
Professional Responsibility – Public reprimand

Where attorney Howard B. Mitz made false statements regarding the distribution of settlement proceeds from his trust account, a public reprimand is appropriate discipline.

“There is no showing that any of the referee’s findings of fact are erroneous.  Accordingly, we adopt them.  We also agree with the referee’s conclusions of law that Attorney Mitz violated the supreme court rules set forth above.  While the misconduct at issue is serious, the record reflects that Attorney Mitz has no prior discipline, did not personally benefit from the misconduct, and cooperated with the OLR.  We therefore accept the referee’s recommendation for a public reprimand.  Finally, we agree with the referee that Attorney Mitz should be required to pay the full costs of the proceeding, which are $6,706.79 as of January 2, 2015.  We accept the OLR’s statement that restitution is not warranted in this matter.”

2013AP2300-D OLR v. Mitz

Per Curiam.

CRIMINAL

Wisconsin Court of Appeals
Criminal Procedure – right to testify – waiver

James Elvin Lagrone appeals the judgment convicting him of strangulation and suffocation, false imprisonment, second-degree sexual assault, first-degree recklessly endangering safety, and operating a vehicle without the owner’s consent—all with the domestic abuse modifier.

DISTRICT I; Milwaukee; RICHARD J. SANKOVITZ and JEFFREY A. WAGNER, Curley, P.J., Brennan, J., and Thomas Cane

2013AP001424-CR State v. James Elvin Lagrone

Wisconsin Court of Appeals
Criminal Procedure – due process

Dontre K. Johnson appeals from a judgment of conviction, entered upon a jury’s verdicts, on two counts of repeated sexual assault of a child.  Johnson also appeals from that part of an order denying his postconviction motion to vacate and dismiss those counts.[1]  The circuit court rejected Johnson’s argument that the delay in charging and the broad period of time charged for each offense was inadequate to allow Johnson to prepare a defense.  We affirm.

DISTRICT I; Milwaukee; REBECCA F. DALLET and STEPHANIE G. ROTHSTEIN, Curley, P.J., Brennan, J., and Thomas Cane

2014AP000997-CR State v. Dontre K. Johnson

U.S. Court of Appeals  For the Seventh Circuit
Evidence – Cross-examination

By testifying on direct examination about his heroin purchasing habits and the motives for his purchases, the defendant opened himself up for cross-examination as to those topics.

“According to the government, Bozovich had admitted in his statement to DEA agents to buying heroin from several suppliers, buying heroin in quantities much larger than $100 a day, and brokering drug deals among his associates. On cross-examination Bozovich accused the agents of lying about some aspects of his statement, but the accuracy of different versions of events is for the jury to decide. It is enough to withstand scrutiny under Rule 611(b) that the district judge could reasonably treat these subjects as ‘matters reasonably related to the subject matter of direct examination.’ Id. at 388.”   Affirmed.

14-1435 U.S. v. Bozovich

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Hamilton, J.

Wisconsin Court of Appeals
Motor Vehicles – OWI – prior convictions – collateral attacks

The State of Wisconsin appeals an order granting Sherwood Lebo’s motion to collaterally attack two operating while intoxicated (OWI) convictions and denying the State’s motion for reconsideration.[1]  The circuit court concluded:  (1) Lebo made a prima facie showing that his right to counsel was violated in the prior proceedings; (2) the burden therefore shifted to the State to prove that Lebo knowingly, intelligently, and voluntarily waived his right to counsel; and (3) the State failed to meet its burden.  Conversely, we conclude Lebo failed to make a prima facie showing that his right to counsel was violated.  We therefore reverse.

DISTRICT III; Kewaunee; DENNIS J. MLEZIVA, Hoover, P.J., Stark, Hruz, JJ.

2014AP000730-CR State v. Sherwood A. Lebo

Wisconsin Court of Appeals
Negligent Handling of Burning Materials – sufficiency of the evidence

Nathan Caffero appeals a judgment convicting him of one misdemeanor count of negligent handling of burning material as a party to a crime and one misdemeanor count of obstructing an officer.  The sole issue on appeal involves the sufficiency of the evidence supporting Caffero’s conviction for negligent handling of burning material.  For the reasons stated below, we affirm.

DISTRICT III; Marathon; MICHAEL MORAN, HRUZ, J.

2014AP001711-CR State v. Nathan M. Caffero

U.S. Court of Appeals  For the Seventh Circuit
Sentencing – Restitution

Privately purchased disability benefits may be garnished to pay restitution.

“Section 3613(a)(1), which selectively incorporates exemptions from the Internal Revenue Code, makes express exceptions for two specific types of disability payments, workmen’s compensation, 26 U.S.C. § 6334(7), and military-related disability payments, id. § 6334(10), without mentioning private disability insurance. Further, the list in § 3613(a)(1) does not include § 6334(11), which exempts certain forms of public assistance, including Social Security disability payments. Although somewhat ‘beleaguered,’ the canon of expressio unius est exclusio alterius—‘the expression of one thing suggests the exclusion of others’—remains a compelling interpretive guide when ‘“the items expressed are members of an “associated group or series,” justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.”’ Exelon Generation Co. v. Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO, 676 F.3d 566, 571 (7th Cir. 2012) (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)). Furthermore, ‘[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.’ Andrus v. Glover Constr. Co., 446 U.S. 608, 616–17 (1980); see In re Robinson, 764 F.3d 554, 562 (6th Cir. 2014) (applying this concept to § 3613(a)). Here, where Congress elected to incorporate the exemptions for certain forms of disability payments and not others, we think that a plain reading of the MVRA leads to the conclusion that it does not cover France’s disability payments.”

Affirmed.

14-2743 U.S. v. France

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

 

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