Weekly Case Digests — Nov. 2-Nov. 6, 2015

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7^th Circuit Court of Appeals – Civil

Civil

7^th Circuit Court of Appeals

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Immigration – Asylum

No. 15-1261

Lishou Wang v. Loretta E. Lynch

Petition for review granted after Appellant petition for asylum denied. Appellant sought to escape persecution from China’s “coercive population control program”.

“Under § 1101(a)(42), if Wang’s wife were forcibly sterilized or forced to have an abortion, she could establish per se persecution on account of political opinion. See Chen v. Holder, 604 F.3d 324, 331 (7th Cir. 2010). And in that case Wang could seek relief for himself if he had been harmed for resisting her sterilization or abortion. See id.; Jin v. Holder, 572 F.3d 392, 397 (7th Cir. 2009). But Wang also may seek relief if he suffered persecution for engaging in “other resistance to a coercive population control program,” 8 U.S.C. § 1101(a)(42). Under this provision, the precise procedure that Wang’s wife underwent as part of that program is beside the point. China’s “coercive population control program” is not limited to only forced abortions and sterilizations; it also forces couples to use birth-control measures such as condoms, pills, and IUDs. See Population and Family Planning Law (P.R.C.) (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2001, effective Sept. 1, 2000), reprinted in U.S. Dep’t of State, 2007 China Profile of Asylum Claims & Country Conditions; see also Chen v. Holder, 737 F.3d 1084, 1089 (7th Cir. 2013). Wang’s claim that he was punished for opposing the efforts of family-planning officials to enforce the population-control program, either by sterilizing him or his wife or by implanting a contraceptive device into his wife’s arm, thus falls within the protection of the statute”

Petition granted. Remanded

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Civil

7^th Circuit Court of Appeals

Officials: KANNE and SYKES, Circuit Judges, and ELLIS, District Judge

Americans with Disabilities Act – Failure to Accommodate

No. 14-2344

Larry Hooper v. Proctor Health Care Incorporated

Appellant failure to notify Defendant-respondent of failure to accommodate claim, and lack of merit fatal to action.

“Here, Dr. Cavanaugh cleared Hooper to return to work without accommodations. See R330 (“Dr. Hooper is fit to return to full-time practice without any specific medical or psychiatric restrictions.”). Dr. Cavanaugh did recommend certain accommodations that he thought could “result in Dr. Hooper’s experiencing less stress in the workplace and an even improved level of medical practice.” Id. But these recommendations cannot form the basis of a failure to accommodate claim because Dr. Cavanaugh specifically found that Hooper was qualified for his position without accommodations. See Brumfield, 735 F.3d at 633 (“A disabled employee who is capable of performing the essential functions of a job in spite of her physical or mental limitations is qualified for the job, and the ADA prevents the employer from discriminating against her on the basis of her irrelevant disability. But since the employee’s limitations do not affect her ability to perform those essential functions, the employer’s duty to accommodate is not implicated.”). Hooper’s failure to accommodate claim thus would fail if considered on the merits.”

Affirmed

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges.

Breach of Contract

No. 14-1342; 14-1283; 14-1267

Pileco, Inc. v. Slurry Systems, Inc. et al

Defendant-appellant reneging on paying leasing fees because of alleged “defects” breached agreement with subcontractor

“There is no evidence that any problems with the cutter during its lease by Slurry had anything to do with the ma‐ chine’s age. If age had nothing to do with those problems, the violation of the newness clause could not have harmed Slurry—if there was a violation, which is uncertain because of the evidence just summarized and also because the meaning of “new” in the lease is uncertain. Does the word mean newly designed, newly manufactured, or never used? (It could mean any of those things.) Obviously the machine had been designed and manufactured before the lease was signed, yet there is no evidence that any of the problems with the machine that Slurry claims to have encountered while working on the Corps of Engineers project were attributable either to the cutter’s age or to any prior use. In Isaiah we read that “The grass withers, the flower fades, but the word of our God will stand forever.” A 40‐ton hunk of steel will not stand forever, but neither will it wither like the grass or fade like the flower.”

Affirmed in part

Reversed and Remanded in part

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, WILLIAMS, and SYKES, Circuit Judges.

Motion for New Trial – Reasonable Accommodations

No. 14-1745

Linda Reed v. State of Illinois

Denial of appellant motion for reasons of her being disabled was improper given the facts.

““[O]nce a person has been afforded a full and fair opportunity to litigate a particular issue, that person may not be permitted to do so again,” Gramatan Home Investors Corp. v. Lopez, 386 N.E.2d 1328, 1331 (N.Y. 1979), and thus a “court determining whether estoppel should apply must balance the need to limit litigation against the right to an adversarial proceeding in which a party is accorded a full and fair opportunity to present his case.” American Family Mutual Ins. Co. v. Savickas, supra, 739 N.E.2d at 451. For one court (the state court) to deny accommodations without which a disabled plaintiff has no chance of prevailing in her trial, and for another court (the federal district court) on the basis of that rejection to refuse to provide a remedy for the discrimination that she experienced in the first trial, is to deny the plaintiff a full and fair opportunity to vindicate her claims.”

Reversed and Remanded

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7^th Circuit Court of Appeals – Criminal

Criminal

7^th Circuit Court of Appeals

Officials: FLAUM, WILLIAMS, and HAMILTON, Circuit Judges

Pleas & Sentencing – Revocation – Abuse of Discretion

No. 15-1604

United States of America v. Charles Armour

District court did not abuse it’s discretion in ordering restrictive conditions when appellant revoked.

“The district court prohibited Armour from “meet[ing], communicat[ing], or otherwise interact[ing] with any person whom [he] know[s] to be a convicted felon … or to be en‐ gaged in or planning to engage in criminal activity unless [he is] granted permission to do so by the probation officer.” Armour argues that banning interactions with a convicted felon serves no valid purpose, but we disagree. The district court stated that the purpose of this condition is to limit Armour’s exposure to triggers of negative behavior. Further, this condition includes a knowledge requirement, which distinguishes it from the conditions found to be fatally vague in Kappes, 782 F.3d at 848–49 (defendant forbidden from “associat[ing] with any person convicted of a felony, unless granted permission to do so by the probation officer”), and Thompson, 777 F.3d at 377 (same). Thus, this was not an abuse of discretion, especially given the district court’s discussion of Armour’s “long history of abusing drugs and breaking the law, and despite numerous incarcerations, continued negative behavior.”

Affirmed

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Criminal

7^th Circuit Court of Appeals

Officials: MANION, ROVNER, and HAMILTON, Circuit Judges.

Pleas & Sentencing – Child Pornography

No. 15-1090; 14-2211

United States of America v. Christopher Bour

Court did not err in sentencing, restitution order, or conditions of supervised release conditions imposed.

“Bour fails to show that his substantive rights, the criminal proceeding’s fairness or integrity, or the proceeding’s public reputation will suffer. See United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008). He is serving a life sentence; he will not be subject to his conditions of release. Further, when a defendant is released and must comply with supervised release conditions, district courts can readily modify these conditions at the defendant’s request. Id. (citing 18 U.S.C. § 3583(e)(2); Fed. R. Crim. P. 32.1(c)). The integrity and public reputation of criminal proceedings are supported by “[e]ncouraging this simple expedient,” rather than by “perpetuating expensive and time-consuming appeals and resentencings.” Id. (citing United States v. Tejeda, 476 F.3d 471, 475 (7th Cir. 2007)).”

Affirmed

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Criminal

7^th Circuit Court of Appeals

Officials: BAUER and HAMILTON, Circuit Judges, and ELLIS, District Judge. *

Writ of Habeas Corpus – Ineffective Assistance of Counsel

No. 13-3327

Paysun Long v. Kim Butler

State failed to correct eyewitness recantation of testimony that ultimately led to conviction of Appellant.

“But the import of this evidence goes beyond credibility. The case against Long was weak. The Illinois Appellate Court itself noted the evidence against Long was “not overwhelming.” SA.83. Without any physical evidence linking Long to the crime, the State had to rely on the testimony of two eyewitnesses, Irby and Edwards. Edwards’ testimony about the scene—that she saw Long shoot Sherman, that she then cradled his head until officers arrived at the scene—was brought into question by the other witnesses’ stories and was also different from her testimony at the first trial. The State’s other two witnesses refused to name Long as the shooter at the second trial. So that left Irby as the only witness whose testimony was not directly contradicted or questioned. The Court considers the trial record as a whole when evaluating the effect of the perjured testimony on the jury’s verdict. See Napue, 360 U.S. at 266, 272 (eyewitness’s testimony “extremely important” to State’s case); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (perjured testimony was key to prosecution’s case). Irby’s testimony and credibility were vital to the State’s case. Furthermore, Irby’s recantation—had the State honestly presented it to the jury—would have corroborated the other two eyewitnesses who also changed their initial testimony naming Long as the shooter. The cumulative weight of Irby’s perjured testimony creates a reasonable likelihood that, with so little other evidence, the State’s failure to fairly present her shifting story influenced the jury’s verdict.”

Reversed and Remanded

Writ Granted

Criminal

7^th Circuit Court of Appeals

Officials: BAUER and HAMILTON, Circuit Judges, and ELLIS, District Judge.

Pleas & Sentencing – Breach of Plea Agreement

No. 12-2606

United States of America v. Salvador Navarro

States departure from plea agreement sentence recommendation warrants reversal.

“Of course, requests for departures and sentencing recommendations are not binding on courts, and courts are free to impose sentences longer than those the government requests. But it appears that in this case the court was influenced by the parties’ recommendations, as the sentence imposed was just above the midpoint between what the government and Navarro requested. The government’s breach of the plea agreement focused the district court’s attention on application note 2, with the weight of the government’s recommendation behind it. This recommendation had extra force because it included a specific number that was far above the applicable guidelines range. As we suggested in United States v. Diaz-Jimenez, 622 F.3d 692, 696 (7th Cir. 2010), a case determining whether an objected-to breach merited reversal of a sentence, the effects of a breach are particularly hard to eliminate when the prosecutor demonstrates a “strong commitment to a sentence” and does nothing to retract the recommendation that breaches the plea agreement. And while, of course, the judge would have been free on his own to refer to application note 2, this remains an adversarial system in which parties and their counsel play essential roles in framing the choices for the judge. The improper upper guidelines number offered by the government may well have anchored the district judge to an inflated sentencing range. We conclude that, had the government’s initial recommendation started at a lower point, Navarro likely would have received a lower sentence. See United States v. Ingram, 721 F.3d 35, 40 (2d Cir. 2013) (Calabresi, J., concurring) (discussing how “anchoring effects” influence judgments and noting that the court “cannot be confident that judges who begin” at a higher guidelines range “would end up reaching the same ‘appropriate’ sentence they would have reached” if they started from a lower guidelines range); see also Hon. Mark W. Bennett, Confronting Cognitive “Anchoring Effect” and “Blind Spot” Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw, 104 J. Crim. L. & Criminology 489, 492 (2014) (discussing the “potential robust and powerful anchoring effect” of the sentencing guidelines and “the effect of the ‘bias blind spot’ in determining just sentences”); Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 Science 1124, 1124 (1974) (classic theoretical work on how framing and expectations influence judgment).”

Reversed and Remanded

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Criminal

7^th Circuit Court of Appeals

Officials: BAUER, WILLIAMS, and HAMILTON, Circuit Judges.

Court Error – Unreasonable Sentencing – General Appeal

No. 14-3311; 14-3363

United States of America v. Vernon Chapman

Court findings appropriate given the severity of defendant and extensive criminal history

“In this case, the district court properly found that Chapman’s total offense level was 37, and that he had a category VI criminal history. As a result, the appropriate Sentencing Guidelines range was between 360 months to life imprisonment. The government agreed that was the correct range, but recommended a sentence ranging from 262 to 327 months’ imprisonment. The district court sentenced Chapman to 200 months’ imprisonment, well below both the Sentencing Guidelines and the prosecution’s recommendation. The Seventh Circuit has held that a sentence below the Sentencing Guidelines range is not an unwarranted disparity. United States v. Gonzalez, 765 F.3d 732, 740 (7th Cir. 2014) (emphasis in original) (citation omitted).”

Criminal

7^th Circuit Court of Appeals

Officials: POSNER, KANNE, Circuit Judges, and DARRAH, District Judge.

Pleas & Sentencing – Resentencing

No. 14-2368

United States of America v. Alexsis Garcia

District court imposition of sentence significantly above the guideline range was court error.

“The Government has conceded that the case must be remanded for a new sentencing hearing on the imposition of the conditions for supervised release. “[S]entencing judges should impose conditions of supervised release which are (a) appropriately tailored to the defendantʹs offense, personal history and characteristics; (b) involve no greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, protection of the public, and rehabilitation; and (c) sufficiently specific to place the defendant on notice of what is expected.” United States v. Parrish Kappes, 782 F.3d 828, 847–48 (7th Cir. 2015). Further, “a sentencing court must justify the conditions and the length of the term at sentencing by an adequate statement of reasons, reasonably related to the applicable § 3553(a) factors.” Id. at 845 (citing United States v. Bryant, 754 F.3d 443, 445 (7th Cir. 2014)).”

Remanded for resentencing

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WI Court of Appeals – Civil

Civil

Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Divorce – Property Division

2014AP2844

Rebecca Lynn Sternat v. Shawn William Sternat

Shawn Sternat appeals the property-division portion of the judgment divorcing him and Rebecca Sternat after a ten-year marriage. He contends that the testimony of Rebecca’s business valuation expert failed to meet the Daubert reliability standard for expert testimony and that the court erroneously concluded that Rebecca’s failure to pay tax liabilities did not constitute marital waste. We affirm.

Affirmed. Per Curiam.

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Civil

Court of Appeals – District IV

Officials: Higginbotham, Sherman and Blanchard, JJ

Abuse of Process – Summary Judgment

2014AP487

Barbara Becker v. Gebert Law Office, LLC

Barbara Becker appeals a summary judgment granted in favor of Gebert Law Office, LLC, dismissing her action for abuse of process on grounds of attorney immunity. We conclude that genuine issues of material fact preclude summary judgment. Accordingly, we reverse and remand for further proceedings

Civil

Court of Appeals – District IV

Officials: Higginbotham, Sherman and Blanchard, JJ.

Dissolution of Partnership

2014AP1030

Ricky E. Hensen v. Hensen Associates, LLP

Ricky Hensen appeals a summary judgment order that dismissed his petition for the dissolution of a business partnership. He challenges the exclusion of a number of exhibits that he submitted with his summary judgment materials, and contends that those exhibits in conjunction with his other materials were sufficient to establish material disputes of fact on several potential theories for dissolution. For the reasons explained below, we affirm the circuit court.
Affirmed. Per Curiam.

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WI Court of Appeals – Criminal

Criminal

Court of Appeals – District III

Officials: Stark, P.J., Hruz and Seidl, JJ

OWI 10^th – Issue Preclusion

Criminal

Court of Appeals – District III

Officials: Stark, P.J., Hruz and Seidl, JJ.

Ineffective Assistance of Counsel – Juror Confusion

2014AP2784-CR

State of Wisconsin v. Richard L. Brabson

Richard Brabson appeals a judgment of conviction for felony criminal damage to property and disorderly conduct and an order denying his motion for postconviction relief. Brabson argues his trial counsel was ineffective for failing to request a proper jury instruction regarding the law of easements, seeks a new trial in the interest of justice due to juror confusion regarding easements, argues there was insufficient evidence that the criminal damage to property exceeded $2500, and argues the trial court improperly ordered restitution for the victims’ attorney’s fees. We reject Brabson’s arguments, except that we agree some of the attorney’s fees were not properly ordered to be paid as restitution. Accordingly, we affirm in part, reverse in part, and remand for the circuit court to recalculate the attorney’s fees awarded as restitution.

Criminal

Court of Appeals – District I

Officials: Curley, P.J., Kessler and Brennan, JJ.

Pleas & Sentencing – Sentence Modification

2015AP19-CR

State of Wisconsin v. Kelvin D. Kirk

Kelvin D. Kirk appeals an order denying his motion for sentence modification. He argues: (1) that the circuit court sentenced him based on inaccurate information; (2) that he is entitled to sentence modification based on a new factor; and (3) that the circuit court should have recused itself from deciding the postconviction motion. We affirm.

Criminal

Court of Appeals – District I

Officials: BRENNAN, J.

Termination of Parental Rights

2015AP245

State of Wisconsin v. K.G.

Mr. G appeals from an order terminating his parental rights to A.K. and from an order denying his postdisposition motion. He argues that: (1) the trial court failed to ensure that his stipulation to grounds was made voluntarily and with an understanding of the nature of the failure-to-assumeparental-responsibility ground; (2) WIS. STAT. § 48.415(6), as applied to him, violates his right to substantive due process; and (3) the trial court erroneously exercised its discretion when it denied him a new dispositional hearing based upon alleged newly discovered evidence. For the reasons which follow, we affirm.

Criminal

Court of Appeals – District III

Officials: HRUZ, J.

OWI 3^rd – Denial of Motion to Suppress

2015AP421-CR

State of Wisconsin v. Joshua Allan Vitek

Joshua Vitek appeals a judgment convicting him of operating a motor vehicle while intoxicated (OWI), third offense, based on the circuit court’s denial of his motion to suppress. Vitek argues the circuit court erroneously concluded a police officer had reasonable suspicion to stop the vehicle he was driving based solely on information that the operating privileges of one of the vehicle’s registered owners was suspended. We conclude the State failed to meet its burden of proving the stop was supported by reasonable suspicion, and we therefore reverse and remand with directions that the circuit court grant Vitek’s suppression motion and hold such further proceedings as are necessary to resolve the case.

Reversed and Remanded

Criminal

Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Order of Forfeiture

2014AP2226

State of Wisconsin v. One 2013, Toyota Corolla

Steven T. Baumgard and Gladys A. Vogel appeal from the circuit court’s order of forfeiture of the above-captioned 2013 Toyota Corolla. Defendants argue forfeiture of the Toyota pursuant to WIS. STAT. § 961.55 (2013-14) is improper because (1) Vogel is an innocent owner of it under the statute and (2) forfeiture violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We conclude the circuit court correctly determined the innocent owner exception to forfeiture does not apply to Vogel. We further conclude forfeiture of the Toyota and Baumgard’s financial interest in it is constitutional; however, forfeiture of Vogel’s full financial interest in the vehicle is unconstitutional under the Excessive Fines Clause. Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion

Affirmed in Part. Reversed and Remanded in Part. Recommended for Publication

Criminal

Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Sufficiency of Evidence

2014AP2757-CR

State of Wisconsin v. DeWayne D. Knight

Dewayne D. Knight appeals from a judgment of conviction entered after a jury found him guilty of three offenses, including two counts of robbery stemming from separate incidents. Knight argues that the evidence at trial was insufficient to sustain the jury’s verdict on count three, and that the trial court erred in denying his motion to sever charges. We disagree and affirm.

Affirmed. Per Curiam.

Criminal

Court of Appeals – District IV

Officials: HIGGINBOTHAM, J.

OWI – Ineffective Assistance of Counsel

2015AP213

State of Wisconsin v. Joseph William Netzer

Joseph William Netzer, pro se, appeals a judgment convicting him of operating a motor vehicle while under the influence of a controlled substance, first offense, in violation of WIS. STAT. § 346.63(1)(am). Netzer argues on appeal that he received ineffective assistance of counsel, was denied his constitutional right to a jury trial, and that the results of his blood tests were impermissibly admitted into evidence. We conclude that Netzer possessed no constitutional right to effective assistance of counsel in a civil proceeding, that the trial court properly exercised its discretion in denying Netzer’s motion to extend jury demand time limits, and that Netzer has failed to present a fully developed argument on and properly preserve his claims of improperly admitted evidence. Accordingly, we affirm the circuit court

Affirmed.

Criminal

Court of Appeals – District IV

Officials: Higginbotham, Sherman and Blanchard, JJ

Ineffective Assistance of Counsel

2015AP366-CR

State of Wisconsin v. Stanley J. Maday, Jr.

Stanley J. Maday, Jr. appeals his conviction for three counts of first-degree sexual assault of a child, in violation of WIS. STAT. § 948.02(1)(b) and (e) (2013-14), and an order denying his motion for postconviction relief. Maday contends that his trial counsel was ineffective. Maday argues that trial counsel performed deficiently by failing to object to testimony that he asserts was impermissible expert opinion testimony to the effect that the victim was telling the truth when the victim made a statement incriminating Maday, and that Maday was prejudiced by the expert’s impermissible testimony. Maday raises other issues that we need not address because we agree with Maday that his trial counsel was ineffective.

Reversed and Remanded. Per Curiam.

Criminal

Court of Appeals – District IV

Officials: Kloppenburg, P.J., Lundsten, and Blanchard, JJ.

Pleas & Sentencing – Sentence Modification

2015AP717-CR

State of Wisconsin v. John G. Dahlk

John G. Dahlk appeals an order denying a motion for sentence modification. For the reasons stated below, we reverse and remand for further proceedings on the question whether Dahlk’s post-sentence cooperation with authorities constitutes a new factor that warrants sentence modification.

Reversed and Remanded. Per Curiam.

Criminal

Court of Appeals – District IV

Officials: KLOPPENBURG, P.J.

Termination of Parental Rights

2015AP1726; 2015AP1727; 2015AP1728

N.A.H. v. J.R.D.

J.R.D., the father of three minor children, M.L.D., E.N.D., and V.A.D., appeals the orders terminating his parental rights to the children. The father argues that the orders should be reversed because: (1) the petition to terminate did not give him sufficient notice of the grounds for termination; and (2) the circuit court demonstrated a “lack of impartiality” when, according to the father, it “told the Petitioner [mother] to proceed on different grounds.” For the reasons set forth below, I reject the father’s arguments and affirm.

WI Supreme Court

WI Supreme Court

Disciplinary Proceedings

2014AP804-D

Office of Lawyer Regulation v. Pamela J. Smoler

Attorney takes loan from former client and fails to repay pursuant to promissory note, fails to properly notify client regarding case dismissal, fails to return advanced fees in trust and fails to cooperate with OL investigation. License suspended as a result.

“We agree with the referee that the allegations in the OLR’s complaint have been established and that Attorney Smoler engaged in the seven counts of misconduct alleged in the complaint. We further agree with the referee that a nine-month suspension of Attorney Smoler’s license to practice law is an appropriate sanction for her misconduct. Although no two fact situations are identical, a nine-month suspension is generally consistent with the sanctions imposed in somewhat analogous cases. For example, in In re Disciplinary Proceedings Against Pitts, 2007 WI 112, 304 Wis. 2d 556, 735 N.W.2d 917, an attorney’s license was suspended for six months for ten counts of misconduct including entering into a business transaction with a client without giving her a reasonable opportunity to seek the advice of independent counsel, reducing the loan to writing, or obtaining the client’s written consent to the loan. The attorney in Pitts loaned $1,000 to his client. By contrast, Attorney Smoler borrowed large sums of money from her clients. In In re Disciplinary Proceedings Against Phillips, 2006 WI 43, 290 Wis. 2d 87, 713 N.W.2d 629, an attorney’s license was suspended for one year for seven counts of misconduct including borrowing $145,000 from a client without giving the client a reasonable opportunity to seek the advice of independent counsel, failing to provide the terms of the loan to the client in an understandable writing, and failing to obtain the client’s written consent to the transaction. The conduct at issue in the instant case seems to fall somewhere between the Pitts and Phillips cases. Accordingly, we find it appropriate to suspend Attorney Smoler’s license for nine months.”

License Suspended for 9 months. Restitution Ordered