Weekly Case Digests — Dec. 28-31, 2015

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Wisconsin Supreme Court

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Gerald P. Boyle

Case No.: 2014AP482-D

Practice Area: Disciplinary Proceedings

Attorney license suspended for 60 days for six counts of misconduct

“As for the level of discipline, we agree with the referee that a 60-day suspension of Attorney Boyle’s law license is appropriate. As stated above, Attorney Boyle concedes the misconduct alleged in Counts One, Two, and Six, which generally concern his lack of a written fee agreement and his deposit of D.P.’s and R.G.’s advanced fee payments into his busines account without properly using the alternative fee placement provisions permitted by SCR 20:1.15(b)(4m). As also explained above, we agree with the referee that Attorney Boyle failed to promptly comply with D.P.’s reasonable requests for information, and failed to act with reasonable diligence and competence in representing D.P. These six counts of misconduct, when considered together with Attorney Boyle’s three prior private reprimands, easily justify a 60-day suspension. See, e.g., In re Disciplinary Proceedings Against Hahnfeld, 2007 WI 123, 305 Wis. 2d 48, 739 N.W.2d 280 (60-day suspension for attorney’s misconduct, which included failing to act with reasonable diligence in representing clients, failing to keep clients informed, and failing to explain the basis or rate of fees); see also In re Disciplinary Proceedings Against Kasprowicz, 2007 WI 67, 301 Wis. 2d 82, 732 N.W.2d 427; (60-day suspension for attorney’s failure to act with reasonable diligence and to communicate with client in one case, failure in another case to respond to numerous court orders and directives, failure in both cases to deposit advanced fees into his client trust account, and failure to cooperate with disciplinary investigation); see also In re Disciplinary Proceedings Against Harris, 2010 WI 9, 322 Wis.2d 364, 778 N.W.2d 154 (60-day suspension for failure to keep a client informed as to the status of a matter and failure to keep a client informed and respond to a client’s request for information).”

ABRAHAMSON, J., dissents. (Opinion Filed)

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Eric L. Crandall

Case No.: 2014AP2587

Practice Area: Disciplinary Proceedings

Attorney receives public reprimand

“In January of 2012, Attorney Crandall continued to be identified, during his period of suspension, as the attorney of record in three separate appellate cases. The OLR alleged that Attorney Crandall did not properly provide either his clients or the Court of Appeals with the notices required by SCR 22.26 in those three cases. Accordingly, the referee determined that, by failing to send, on or before the effective date of his suspension, written notice of his suspension by certified mail to the three clients in the three separate appeals, Attorney Crandall violated SCR 22.26(1)(a) and (b) (Count Three).”

ABRAHAMSON, A.W. BRADLEY, J.J., dissent. (Opinion filed)

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Jeffrey John Aleman

Case No.: 2015AP1340-D

Practice Area: Disciplinary Proceedings

Attorney enters into stipulation with OLR. icense suspended for two years.

“On August 12, 2015, Attorney Aleman and the OLR entered into a stipulation whereby Attorney Aleman agrees it would be appropriate for this court to impose the level of discipline sought by the OLR director, namely, a two-year suspension of Attorney Aleman’s license to practice law in Wisconsin.”

ABRAHAMSON, J., dissents. (Opinion Filed)

R.G. BRADLEY, J., did not participate.

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Zachary T. Krogman

Case No.: 2015AP1422-D

Practice Area: Disciplinary Proceedings

Attorney enters into stipulation with OLR. Subjected to drug abuse and mental health assessment. License suspended for four months.

“Between October 31, 2013, and July 10, 2014, Attorney Krogman improperly took over $2,500 from his clients’ trust accounts, funds to which he was not entitled, including by paying bank fees with client funds. He began accepting credit card payments for legal fees in November 2012 but never established a separate trust account for receiving legal fees and costs by credit card, debit card, or other electronic deposit. Attorney Krogman failed to keep transaction registers required by the Rules of Professional Conduct, failed to keep individual client ledgers, failed to keep required deposit records, failed to complete the memo line on checks, and failed to prepare regular and periodic reconciliation reports.”

ABRAHAMSON, A.W. BRADLEY, J.J., dissent. (Opinion Filed)

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Wisconsin Court of Appeals

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Charles Ray Stewart

Case No.: 2014AP276-CR

Officials: Kessler and Brennan, JJ., and Daniel L. LaRocque, Reserve Judge

Practice Area: Consent – Warrantless Search

Charles Ray Stewart appeals a judgment of conviction, entered pursuant to a guilty plea to one count of second-degree sexual assault of a child. Stewart contends that the circuit court erroneously denied his motion to suppress evidence seized following a warrantless entry into his home. Because we conclude that Stewart consented to Milwaukee police entering his home, that police lawfully remained in his home under the community caretaker exception to the warrant requirement, and that the evidence seized was in plain view of police, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Chaz L. Moseby

Case No.: 2014AP1671-CR

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

Practice Area: Pleas & Sentencing – Sentence Credit

Chaz Moseby, pro se, appeals an order denying his request for additional sentence credit. Moseby argues a previous order that reduced his sentence credit violated his right to be free from double jeopardy. Alternatively, he argues the reduction in sentence credit constituted a new factor warranting sentence modification. We reject these arguments and affirm the order denying Moseby additional sentence credit.

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WI Court of Appeals – District I

Case Name: William Love v. Katie Smith

Case No.: 2014AP1790; 2014AP186

Officials: Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge.

Practice Area: Eviction – Summary Judgment

In this consolidated appeal, Kattie Smith appeals the trial court’s grant of summary judgment to the Housing Authority of the City of Milwaukee (HACM) as the third-party defendant in the eviction case and the denial of her writ of certiorari brought against HACM. Because the trial judge correctly granted summary judgment to HACM as the third-party defendant in the eviction action, which dismissed the action as to HACM, and issue preclusion operates to defeat Smith’s writ of certiorari, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Samuel T. Moreland

Case No.: 2014AP1916

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

Practice Area: Denial of Hearing – Criminal

Samuel T. Moreland, pro se, appeals from an order of the circuit court that denied without a hearing his WIS. STAT. § 974.06 (2013-14) motion for postconviction relief. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Layton Laron Fortune

Case No.: 2014AP2390-CR

Officials: Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge.

Kayron Laron Fortune appeals a judgment convicting him of possession of designer drugs, possession of cocaine, and possession of THC, all with intent to deliver. See WIS. STAT. §§ 961.41(1m)(hm)., (1m)(cm)1r., and (1m)(h)2. (2013-14).1 He also appeals an order denying his motion for postconviction relief. Fortune argues that: (1) the circuit court should have granted his motion to suppress; and (2) the circuit court erred when it conducted in camera proceedings to assess the reliability of the confidential informant and refused to provide his postconviction counsel with a copy of the sealed in camera transcript. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jose M. Nieto

Case No.: 2014AP2697-CR

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

Practice Area: Pleas & Sentencing – Sentence Credit

Jose Nieto appeals a judgment sentencing him to five years’ initial confinement and five years’ extended supervision and an order denying his motion for sentence credit. He contends he is entitled to 301 days of sentence credit because his trial attorney was ineffective for failing to seek revocation of his bail after Nieto was charged with additional offenses. The circuit court denied the motion without a hearing. We affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: Sandra Brezonick v. A.W. Chesteron Company

Case No.: 2014AP2775

Officials: Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge.

Practice Area: Summary Judgment – Construction Statute of Repose 

Sandra Brezonick appeals the summary judgment order dismissing her claims against Pabst Brewing Company, Miller Brewing Company, Wisconsin Electric Power Company (“WEPCO”), and Sprinkmann Sons Corporation, as well as those defendants’ relevant insurers (collectively “the Defendants”). She claims the Defendants, in varying ways, are liable for exposing her husband John Brezonick to asbestos, which she asserts led to the development of John’s mesothelioma and eventually his death. Following motions for summary judgment, the circuit court dismissed Sandra’s claims against the Defendants, concluding that those claims were barred by the construction statute of repose, WIS. STAT. § 893.89 (2013-14). Sandra claims that WIS. STAT. § 893.89 does not bar her claims against the Defendants because she believes: (1) the undisputed evidence shows that John’s injuries arose from maintenance and repair work, rather than work making improvements to real property; (2) airborne asbestos is not a “deficiency or defect” in construction of an improvement to real property; (3) § 893.89(4), the “maintenance exception” to the construction statute of repose, exempts the premises owners—that is, Pabst, Miller, and WEPCO—from protection from liability; and (4) § 893.89 is unconstitutional as applied to Sandra. We conclude that the circuit court erred in determining that Sandra’s claims are barred by the construction statute of repose because the record reveals that all of the Defendants here failed in their burden of showing that John’s injuries arose from work intended to make improvements to real property. As such, we reverse the circuit court’s grant of summary judgment and remand this case back to the circuit court for further proceeding.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Rafael D. Honig

Case No.: 2014AP2968-CR

Officials: Curley, P.J., Kessler. J., and Daniel L. LaRocque, Reserve Judge

Practice Area: Ineffective Assistance of Counsel

Rafael D. Honig appeals a judgment of conviction, following a jury trial, of one count of first-degree sexual assault—intercourse with a person under age twelve, and one count of first-degree sexual assault—contact with a person under age thirteen. Honig also appeals the order denying his postconviction motion for relief. We conclude that the trial court’s determination that Honig’s trial counsel was not ineffective was based on errors of law. We reverse.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Clarence C. Joseph

Case No.: 2014AP2974

Officials: Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge.

Practice Area: Motion for New Trial

Clarence Christopher Joseph, pro se, appeals an order denying his postconviction motion brought pursuant to WIS. STAT. § 974.06 (2013-14). He argues that: (1) he should be granted a new trial based on the statement of a witness who has just come forward; (2) his trial counsel ineffectively represented him by failing to interview Albert Morrow and call him as a defense witness at trial; and (3) he should be given a new trial in the interests of justice. See WIS. STAT. § 752.35.2 We affirm.

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WI Court of Appeals – District I

Case Name: Maya Elaine Smith v. Jeff Anderson

Case No.: 2015AP79

Officials: Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge.

Practice Area: Summary Judgment – Duty to Defend – Insurance

R&B Construction Inc. (“R&B”) appeals an order of the circuit court granting summary judgment in favor of West Bend Mutual Insurance Company (“West Bend”). R&B contends that the circuit court erroneously found that West Bend did not have a duty to defend R&B against a third-party complaint filed against R&B by Jeff Anderson. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. James Lee Eady, JR

Case No.: 2015AP110-CR

Officials: Before Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge

Practice Area: Sufficiency of Evidence

James Lee Eady, Jr., appeals the judgment convicting him of robbing a financial institution, a U.S. Bank, contrary to WIS. STAT. § 943.87 (2011-12). He argues that the evidence was insufficient to prove a required element of this crime, that the bank was chartered under either state or federal law. Although the State did not offer direct evidence of the bank’s charter, we conclude that the circumstantial evidence was sufficient to support the jury’s verdict and affirm the conviction.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Dale R. Radder

Case No.: 2015AP131-CR

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

Practice Area: Pleas & Sentencing – Sentence Modification

Dale Radder appeals a judgment convicting him of manufacturing/delivery of THC, maintaining a drug trafficking place, possession of THC, all as second or subsequent offenses, and 213 counts of possession of child pornography. He also appeals an order denying his postconviction motion to modify the sentences based on new factors. Radder identified two new factors: (1) evidence that sentences in Shawano County are greater than sentences imposed in adjacent counties for child pornography charges; and (2) an evaluation by Diane Lytton, Ph.D., showing Radder was not likely to commit a sexual offense. Because we conclude the circuit court properly exercised its discretion when it denied the motion to reduce Radder’s sentences, we affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: Deutsche Bank National Trust Company v. Patricia A. Olson

Case No.: 2015AP192

Officials: Before Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge

Patricia A. Olson and Philip Olson (collectively, “the Olsons”) appeal from a judgment of foreclosure entered in favor of Deutsche Bank National Trust Company on behalf of the Certificate Holders Morgan Stanley ABC Capital I Inc. Trust 2005-NC2 Mortgage Pass Through Certificates, series 2005-NC2 (“Deutsche Bank”).1 On appeal, the Olsons argue that the trial court erred in admitting certain documents under the business records exception to the rule against hearsay, see WIS. STAT. § 908.03(6) (2013-14) (the “business records exception”),2 as evidence supporting Deutsche Bank’s claim that the Olsons were in default and owed $140,364.63 on the principal balance of the loan plus interest of $68,953.21 as of the date of the trial under the terms of the note and mortgage. Had the trial court not admitted those documents, the Olsons argue, there would have been insufficient evidence to support Deutsche Bank’s foreclosure claim because Deutsche Bank would have failed to establish the amount due and owing. We conclude that the trial court did not err in admitting the documents at issue as business records under § 908.03(6); therefore, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Darnell Louis Dangerfield

Case No.: 2015AP263-CR

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

Practice Area: Abuse of Discretion – Ineffective Assistance of Counsel

Darnell Louis Dangerfield appeals a judgment convicting him of second-degree sexual assault with use of force, robbery with use of force, and false imprisonment, all as a party to a crime. He also appeals an order denying his motion for a new trial. Dangerfield argues that: (1) the circuit court misused its discretion by admitting “other acts” evidence; and (2) he received ineffective assistance of trial counsel. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Dannie Carter

Case No.: 2014AP1228-CR

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

Practice Area: Ineffective Assistance of Counsel

A jury found Dannie Carter guilty of soliciting a child for prostitution and disorderly conduct. See WIS. STAT. §§ 948.08 and 947.01(1) (2013-14). Carter seeks a new trial based on the ineffectiveness of his trial counsel. Because counsel’s performance was not deficient, we affirm.

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WI Court of Appeals – District II

Case Name: Catherine Fricano v. Bank of America, N.A.

Case No.: 2015AP20

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

Practice Area: Deceptive Representation – Exculpatory Clauses – Contracts & Agreements

Bank of America N.A. (the Bank) appeals from a judgment in favor of Catherine Fricano on her WIS. STAT. § 100.18(1) (2013- 14) deceptive representation claim. A jury found the Bank’s deceptive representation in the sale contract induced Fricano to enter into the purchase of a home from the Bank and awarded her compensatory damages for extensive water and mold damage despite the “as is” and exculpatory clauses in the parties’ contract. We reject the Bank’s challenge to the trial court’s denial of its postverdict motions. There was sufficient evidence to support the jury’s verdict that the Bank made a deceptive statement concerning the sale of the property with the intention of inducing the sale of the property and that Fricano suffered a loss as a result of that representation. The “as is” and exculpatory clauses in the parties’ contract do not, as a matter of law, relieve the bank/seller of liability under §100.18(1) for its deceptive representation in the contract which induced agreement to such terms. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael J. Spizzirri

Case No.: 2015AP84-CR

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

Practice Area: OWI – Expert Testimony

Michael R. Spizzirri appeals from a judgment of conviction entered after a jury found him guilty of operating a motor vehicle while intoxicated (OWI), contrary to WIS. STAT. §346.63(1)(a) (2013-14) and operating a motor vehicle with a prohibited blood alcohol concentration (PAC), contrary to § 346.63(1)(b).2 Spizzirri argues that the trial court erred by admitting expert testimony about the result of his blood alcohol test and limiting the scope of his cross-examination concerning the possibility of another driver. Spizzirri also contends that the evidence was insufficient to support his convictions. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Park Bank v. David W. Jackson

Case No.: 2015AP126

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

Practice Area: Subrogation – Subordination Agreement

Park Bank appeals a judgment granted in favor of respondent Wachovia Mortgage Corporation. The issues relate to whether Wachovia is entitled to equitable subrogation, so as to place its mortgage lien in first position, despite Wachovia’s failure to obtain a valid subordination agreement from the second-place lienholder, Park Bank, when Wachovia made the loan. We conclude that Wachovia is entitled to subrogation, but only in a limited amount. We reverse and remand with directions to amend the judgment to provide that limited amount.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Frank E. Pilarski

Case No.: 2015AP425-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Practice Area: Restitution – Lost Wages

Frank Pilarski appeals the amount of restitution he was ordered to pay for lost wages incurred by the mother of his four-year-old sexual assault victim. Pilarski argues the amount was improper as the mother’s reduction in work hours to care for her child was too attenuated from his crime to justify special damages. We affirm.

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WI Court of Appeals – District II

Case Name: Daniel G. Wilson v. City of Kenosha

Case No.: 2015AP904

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

Practice Area: Excessive Use of Force – Summary Judgment

Daniel Wilson appeals an order granting summary judgment in favor of the City of Kenosha and Officer Sarah Webb in this case alleging excessive use of force under 42 U.S.C. § 1983. Wilson argues that summary judgment was inappropriate because there are genuine issues of material fact as to whether, under the totality of the circumstances, Webb’s use of force during Wilson’s arrest was excessive and unreasonable. We readily acknowledge what is obvious from a review of all submissions, that Wilson does not appear to have a strong case. However, focusing on the parts of the submissions favorable to Wilson, and drawing all reasonable inferences in favor of Wilson, as required by summary judgment methodology, we conclude that there are genuine issues of material fact that prevent summary judgment in favor of the City and Webb. Therefore, we reverse the order granting summary judgment on this claim and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Tommy K. Miller

Case No.: 2015AP1211-CR

Officials: BLANCHARD, J.

Practice Area: OWI Second – Motion to Suppress

Tommy Miller appeals a judgment of conviction for operating a motor vehicle while intoxicated, second offense, and the circuit court’s order denying his motion to suppress evidence obtained by a sheriff’s deputy after an encounter with Miller resulting in Miller’s arrest. In making the motion, Miller argued that the encounter was a seizure for constitutional purposes, and that the State failed to prove that: the seizure was justified by the community caretaker doctrine; the deputy possessed the requisite level of suspicion to continue to detain Miller to administer field sobriety tests; and the deputy had “probable cause to believe” that Miller had been operating a vehicle in violation of a statute related to drunk driving, justifying a preliminary breath test (PBT). For the reasons set forth below, I affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Bradley A. Anderson

Case No.: 2015AP1573-CR

Officials: BLANCHARD, J.

Practice Area: Motion to Suppress – PAC Second

Bradley Anderson appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration, second offense, and the circuit court’s order denying his motion to suppress evidence that police obtained through a blood draw that Anderson argues was performed in violation of his constitutional rights. Specifically, Anderson argues that the State failed to carry its burden of showing that his consent to the blood draw was voluntary and that, even if Anderson did at first voluntarily give consent, he later withdrew that consent before his blood was drawn. For the following reasons, I reject both arguments and affirm.

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7^th Circuit Court of Appeals

7^th Circuit Court of Appeals

Case Name: Caesars Entertainment Operating Company, Inc. v. BOKF, N.A.

Case No.: 15-3259

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

Practice Area: Bankruptcy – Statutory Interpretation

Court’s interpretation own section 105(a) was in err.

“Furthermore, the patent holder was Teknek’s only major creditor, so allowing the third‐party action of that creditor to proceed would not affect a larger group of creditors in the bankruptcy. Id. at 651. (Indeed we were puzzled why the case was even in bankruptcy, given what was effectively a creditor class consisting of only one creditor. Id. at 650. The usual purpose of bankruptcy is to allocate the distribution of the bankrupt’s assets among creditors.) In our case the potential injuries to the numerous creditors in the bankruptcy (whose prospects depend on CEOC’s assets), and to the guaranty plaintiffs (whose loans CEC has guaranteed), are not readily separable. Both injuries, according to CEOC, stem from CEC’s broad scheme to transfer CEOC’s assets to itself. Indeed, some of the same creditors have claims against both CEOC and CEC for repayment of the same loans, and so their ability to recover from CEC (the guarantor) may de‐ pend on the amount they can recover directly from CEOC, their borrower. And were guarantor liability to be imposed on CEC, CEC’s ability to satisfy CEOC’s fraudulent conveyance claims against it—and thus pay other creditors—would be impaired.”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Martin Mendoza-Sanchez v. Loretta Lynch

Case No.: 15-2551

Officials: WOOD, Chief Judge, and POSNER and HAMILTON, Circuit Judges.

Practice Area: Immigration

Request for deferral of removal due to imminent threat of torture remanded to board of immigration appeals.

“We explained in Rodriguez-Molinero that if the Mexican government could be expected to protect the petitioner from the drug cartel that wanted to kill him, if he were returned to Mexico, the risk that he would be tortured or killed might be too slight to entitle him to deferral of removal. The immigration judge in that case had remarked that the Mexican government was trying to control the drug gangs, but it is success rather than effort that bears on the likelihood of a per- son’s being killed or tortured if removed to Mexico. Rodriguez-Molinero v. Lynch, supra, 2015 WL 9239398, at *6. In the present case, as in Rodriguez-Molinero—unsurprisingly since it too is about deferral of removal to Mexico of a Mexican citizen who appears to be in the sights of one of the powerful Mexican drug cartels—no evidence has been presented that the Mexican government can protect the citizen from torture at the hands of local public officials or to which local public officials are willfully blind. As we said earlier in this opinion, “acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7).”

Remanded

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7^th Circuit Court of Appeals

Case Name: Julia Egan v. David Pineda

Case No.: 15-2011

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

Practice Area: Attorney Sanction

$5000 sanction on attorney for misconduct  justified

“After dismissing the complaint against Pineda for lack of personal jurisdiction (a dismissal not contested by either Egan or Spicer on appeal), the judge held a hearing at which he asked Spicer to explain how the phony allegation of sexual assault had gotten into the complaint. Spicer said “it was an error,” but when asked by the judge “how did that error occur?” he answered only that “it was not supposed to be in there … . It was an oversight on our part … .” The judge was not satisfied. At the next status hearing he asked Spicer “What happened that allowed that allegation, which every- body now agrees was false, how did that allegation make its way into a complaint that you signed and filed?” Again Spicer was unresponsive—and worse. He said “I don’t know what to tell you, other than it was an error and an oversight on my part. … [I]t was a simple error in proofreading on my part.” How could it have been a “simple” error, let alone a proofreading error? Proofreading means carefully reading a text to find and correct typographical, grammatical, stylistic, and spelling errors. Maybe Spicer meant that someone else had written paragraph 75 and that he (Spicer) in proofread- ing it had failed to catch the errors. But the errors were not typographical, grammatical, etc.; the paragraph was clearly written; a perfect proofread would not have discovered that the paragraph was asserting a falsehood. Spicer’s brief in this court offers no alternative to “oversight” and “proof- reading error” as excuses for paragraph 75. Those excuses are pathetic and leave us in the dark about how or why he falsified the complaint.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Roy Mitchell v. Edward Wall

Case No.: 15-1881

Officials: WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.

Practice Area: Modification Conditions of Probation

Denial of preliminary  injunction requesting conditions of probation to be changed rightfully denied.

“In addition, unlike the situation in the otherwise similar case of Gjertsen v. Board of Election Commissioners, 751 F.2d 199, 202 (7th Cir. 1984), no motion for either preliminary or permanent injunctive relief remains pending in the district court and, as we noted, the district judge’s denial of preliminary relief does not preclude the later issuance of a permanent injunction. Like Orion Sales, moreover, the dismissal of the interlocutory appeal on grounds of mootness does not leave in force a final district court decision that the prevail‐ ing party could use as a basis for asserting collateral estoppel in a future litigation between the parties. Because the case remains alive in the district court, compare Camreta v. Greene 131 S. Ct. 2020, 2033–36 (2011), should the plaintiff in the course of the litigation be released from jail and again placed on probation she may be able, as an alternative to reviving her claim for injunctive relief against the probation officers (whether the old ones or new ones), to bring a new suit, which doubtless will involve issues related to the claims in her present suit against the probation officers. And she’ll be able to ask the district court to vacate his current judgment denying her claims against them, on the ground that our ruling her appeal moot deprived her of an opportunity to challenge his earlier ruling.”

Appeal Dismissed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Bryce Woods

Case No.: 15-1495

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

Practice Area: Sentencing

Defendant-appellant’s securing of a lawful job while on bail not persuasive for purposes of lowering sentence below the guidelines.

“The fact that a defendant convicted of fraud is able to se‐ cure a lawful job while on bail is thus not a persuasive reason for giving him a below‐guidelines sentence; it does not prove rehabilitation; and so clear is this that the sentencing judge is not to be faulted for failing to explain why it isn’t a compelling reason for dipping below the bottom of the applicable guidelines range. According to the presentence report, the defendant’s annual earnings when employed by American Leaders were not quite $22,000, and if his criminal record keeps his earnings depressed when he is released from prison he may be tempted to try his hand at fraud again, and may succumb to the temptation.”

Affirmed

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