Weekly Case Digests — Jan. 18-22, 2015

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Wisconsin Court of Appeals

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Gregory Tyson Below

Case No.: 2014AP2614-CR; 2014AP2615-CR; 2014AP2516-CR

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

Practice Area: General Appeal – Ineffective Assistance of Counsel – Motion to Suppress

J. Gregory T. Below appeals a judgment of conviction and an order denying his postconviction motion following a three-week jury trial. The jury reached verdicts on forty-one felony charges involving nine women. It found Below guilty of twenty-nine charges, including kidnapping, strangulation and suffocation, sexual assault, substantial battery, reckless injury, and one count of solicitation of prostitutes. It acquitted him of twelve other similar felony counts. Below seeks a new trial on four claims of trial court error: 1) denial of his motion for severance (separate trials); 2) denial of his claim of ineffective trial counsel; 3) denial of his motion to suppress evidence seized with a search warrant; and 4) denial of his motion for an in camera inspection of a victim’s mental health treatment records. We affirm the judgment and order of the circuit court for the reasons stated herein.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Demone Alexander

Case No.: 2014AP2774

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

Practice Area: Ineffective Assistance – Newly Discovered Evidence

Demone Alexander appeals from a trial court order denying his postconviction motion, which had sought: (1) a Machner hearing on Alexander’s allegations that his postconviction counsel and trial counsel provided ineffective assistance; or (2) a new trial based on newly discovered evidence. In addition to arguing that the trial court wrongly decided those issues, Alexander argues in the alternative that this court should exercise its power of discretionary reversal. We reject Alexander’s arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: In Re Paternity of D.N.S.

Case No.: 2014AP2949

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

Practice Area: Custody & Physical Placement – Modification

Donna Kikkert, pro se, appeals an order denying modification of custody and physical placement of the parties’ daughter. Kikkert contends the circuit court erroneously exercised its discretion in failing to appoint counsel to represent her, and in finding no substantial change in circumstances. We affirm.

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WI Court of Appeals – District III

Case Name: David Shotliff v. John Weinel, et al

Case No.: 2015AP448

Officials: STARK, P.J.

Practice Area: Abuse of Discretion – Sufficiency of Evidence

John Weinel shot and killed a bull owned by David Shotliff in August 2013. Shotliff sued Weinel for conversion, and, following a bench trial, the circuit court awarded Shotliff $5000 in damages. Weinel appeals, arguing: (1) the circuit court erroneously exercised its discretion “by failing to consider [his] claim of self-defense”; and (2) there was sufficient evidence to support his self-defense claim. We reject these arguments and affirm.

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WI Court of Appeals – District III

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

Case No.: 2015AP586

Officials: STARK, P.J.

Practice Area: OWI – Prior Conviction

The State of Wisconsin appeals a judgment convicting Joseph Risse of operating while intoxicated (OWI) as a first offense. The State argues the circuit court erred by admitting Risse’s uncertified and unauthenticated records and by finding those records rebutted the State’s proof that this was Risse’s second conviction for a countable OWI-related offense. Even if we assume the circuit court properly admitted the records, we conclude its finding that Risse did not have a prior conviction goes against the great weight and clear preponderance of the evidence. The judgment is therefore reversed and the cause remanded for further proceedings.

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WI Court of Appeals – District III

Case Name: Paul Halderson et al, v. Star Blends, LLC, et al.

Case No.: 2015AP739

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

Practice Area: Breach of Contract – Breach of Warranty

Paul Halderson, Lyn Halderson, and Arctic Farms, LLC, (collectively, the Haldersons) appeal a judgment dismissing their breach of contract and breach of warranty claims against Star Blends, LLC. Northern States Power Company, d/b/a Xcel Energy Services, Inc., also appeals, arguing the circuit court erred by dismissing its cross-claims against Star Blends for contribution and indemnification. We conclude the circuit court properly dismissed Northern States’ cross-claims against Star Blends, but it erred by dismissing the Haldersons’ breach of contract and breach of warranty claims. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marguerite Aplers

Case No.: 2015AP1784-CR

Officials: BRENNAN, J.

Practice Area: Conditions of Probation – Court Error

Marguerite Alpers appeals from the circuit court’s order denying her motion to rescind that portion of the court’s prior order imposing as a condition of probation that an ignition interlock device (“IID”) be placed on “her husband’s car.” Alpers argues that: (1) the circuit court erroneously exercised its discretion when it initially ordered that the IID be placed on “her husband’s car”; and (2) the order violates Alpers’s constitutional rights. Because the State concedes that the circuit court’s order is not supported by the record, and our review of the record affirms that the circuit court erroneously exercised its discretion, we reverse. We note that the effect of our decision is solely to remove the condition of IID on “her husband’s car.” Our decision does not remove the additional probation condition that requires Alpers to install an IID on “any vehicle operated/owned by the defendant.” We need not address Alpers’s constitutional argument because we decide the case on other grounds. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (Cases should be decided on the narrowest possible grounds).

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Paul J. Merkt

Case No.: 2015AP489-CR

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

Practice Area:  Motion to Withdraw – Court Error

Paul J. Merkt appeals from a judgment of conviction and an order denying his motion for postconviction relief. He contends that the circuit court erred in denying his motion to withdraw his guilty plea. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Trista J. Ziehr

Case No.: 2015AP994-CR

Officials: HAGEDORN, J.

Practice Area: Sufficiency of Evidence

Trista Ziehr was the owner and operator of a daycare center. Wisconsin requires individuals in her position to immediately report to proper authorities if they have a reasonable cause to suspect that a child has been abused. In October 2014, a jury found Ziehr guilty of failing to so report, and she was sentenced to thirty days in jail. Ziehr now appeals her conviction, raising five grounds for our review. She alleges the following: (1) The circuit court failed to properly instruct the jury that she had a reasonable amount of time to investigate prior to reporting, that she could fulfill her obligations as a reporter by causing a third person to make a report, and that her duty to report was discharged when she reasonably believed that the appropriate authorities had already been notified; (2) The complaint failed to give her adequate notice of the charges against her because it was duplicitous; (3) The circuit court erred by admitting evidence of a separate incident where she purportedly failed to report child abuse; (4) The evidence was constitutionally insufficient such that no reasonable jury could have found her guilty; and (5) This court should exercise its discretionary powers to reverse her conviction. We disagree and affirm the circuit court on all counts. We conclude that (1) the jury instructions given were not in error; rather they fully and fairly informed the jury of the applicable law; (2) the circuit court did not abuse its discretion by admitting other-acts evidence of a second alleged failure to report; (3) the prohibition against duplicity was not violated because Ziehr was tried solely on the first failure to report incident, of which she had adequate notice; (4) sufficient evidence supports Ziehr’s conviction; and (5) a new trial pursuant to our discretionary powers is not warranted. Accordingly, the judgment of the circuit court is affirmed.

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WI Court of Appeals – District III

Case Name: Barron County Department of Health and Human Services v. J.H.

Case No.: 2015AP1529

Officials: SEIDL, J.

Practice Area: Termination of Parental Rights

J.H. appeals an order terminating her parental rights to E.H. J.H. argues her trial counsel was ineffective, and asks this court to reverse the circuit court’s order and grant her a new trial. We affirm the order.

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WI Court of Appeals – District II

Case Name: K.C. v. B.S.-S

Case No.: 2015AP1702

Officials: HAGEDORN, J.

Practice Area: Termination of Parental Rights

B.S.-S. appeals from an order of the circuit court terminating his parental rights regarding his child, X.S.-S. The circuit court relied solely on a single conviction of child abuse to find that B.S.-S. was unfit. B.S.-S. argues that the circuit court was required to find a pattern of abusive behavior and did not do so here. This appeal presents a single issue for review: should the circuit court’s order terminating B.S.-S.’s parental rights be reversed because the statutory grounds relied upon require a pattern of abusive behavior? The law is clear and well established: a single conviction does not demonstrate a pattern of abusive behavior under WIS. STAT. § 48.415(5). Therefore, we conclude that the circuit court erred when it found that B.S.-S. was unfit.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Gavin O. Attoe

Case No.: 2013AP1083

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

Practice Area: General Appeal – Child Abuse

Gavin Attoe appeals judgments of conviction and an order denying his motion for postconviction relief. We affirm.

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WI Court of Appeals – District IV

Case Name: James C. Bourne and Madison Homes, Inc. v. Melli Law, S.C., et al.

Case No.: 2014AP2861

Officials: Lundsten, Higginbotham and Sherman, JJ.

Practice Area: Malpractice Suit – Statute of Limitations

James Bourne and Madison Homes, Inc. (collectively “Bourne”), appeal the circuit court’s judgment dismissing Bourne’s legal malpractice claim against Attorney Philip Bradbury and Melli Law, S.C. (collectively “Bradbury”). Bourne argues that the circuit court erred by granting summary judgment to Bradbury based on the applicable six-year statute of limitations. The dispositive question pertains to the statute of limitations discovery rule and, more specifically, to whether Bourne discovered his claim against Bradbury by November 3, 2003. We express no opinion on the merits of Bourne’s claim. Rather, we simply hold, based on the record before us, that this case is not appropriate for summary judgment based on the statute of limitations. With respect to the statute of limitations time period and the discovery rule, there is a factual dispute that precludes summary judgment. Accordingly, we reverse and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: Jason Jerome Zimmel v. Kathleen M. Garrity

Case No.: 2015AP115

Officials: Higginbotham, Sherman and Blanchard, JJ.

Practice Area: Divorce – Court Error

Jason Zimmel appeals from a judgment of divorce, and raises several claims of circuit court error. Because the circuit court’s factual findings are not clearly erroneous and the court properly exercised its discretion, we affirm.

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WI Court of Appeals – District IV

Case Name: Columbia County v. Brittany N. Krumbeck

Case No.: 2015AP1010

Officials: LUNDSTEN, J.

Practice Area: OWI – Reasonable Suspicion  

Brittany Krumbeck appeals the circuit court’s judgment convicting her of operating a motor vehicle while under the influence of an intoxicant. She challenges the circuit court’s denial of her suppression motion, arguing that the court erred in concluding that there was reasonable suspicion to stop her vehicle. I agree with the circuit court’s conclusion that reasonable suspicion was present. Krumbeck also argues that the court erred in concluding that there was probable cause supporting her arrest. This argument is insufficiently developed, and I reject it on that basis. I affirm.

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WI Court of Appeals – District IV

Case Name: Green Tree Servicing, LLC v. Marcia M. Lorang, et al.

Case No.: 2015AP1015

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

Practice Area: Breach of Contract – Summary Judgment

Marcia and James Lorang appeal an order granting summary judgment dismissing their third party claims against Bank of America, N.A.  The Lorangs claim breach of contract, promissory and equitable estoppel, and violation of WIS. STAT. § 224.77 (2013-14).  The Bank argues that it is entitled to summary judgment on all claims. For the reasons set forth below, we agree and affirm.

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U.S. Supreme Court

US Supreme Court

Case Name: Hurst v. Florida

Case No.: 14-7505

Practice Area: Sentencing – Capital Punishment

Florida’s capital sentencing scheme violates the 6^th amendment.

“The analysis the Ring Court applied to Arizona’s sentencing scheme applies equally to Florida’s. Like Arizona at the time of Ring, Florida does not require the jury to make the critical findings necessary to impose the death penalty. Rather, Florida requires a judge to find these facts. Fla. Stat. §921.141(3). Although Florida incorporates an advisory jury verdict that Arizona lacked, we have previously made clear that this distinction is immaterial: “It is true that in Florida the jury recommends a sentence, but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge. A Florida trial court no more has the assistance of a jury’s findings of fact with respect to sentencing issues than does a trial judge in Arizona.” Walton v. Arizona, 497 U. S. 639, 648 (1990); accord, State v. Steele, 921 So. 2d 538, 546 (Fla. 2005) (“[T]he trial court alone must make detailed findings about the existence and weight of aggravating circumstances; it has no jury findings on which to rely”). As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst’s authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst’s sentence violates the Sixth Amendment.”

Reversed and Remanded

Justice Scalia dissenting

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US Supreme Court

Case Name: Bruce v. Samuels

Case No.: 14-844

Practice Area: Statutory Interpretation – Prison Litigation Reform Act of 1995

Section 1915(b)(2) calls for simultaneous, not sequential, recoupment of multiple monthly installment payments.

“Responding to Bruce’s observation that, for a prisoner with more than five charges, even the per-case approach resorts to sequential payments, the Government agrees, but tells us that this scenario arises infrequently. “[M]ost prisoners,” the Government states, “would accrue three strikes (and therefore be required to pay the full filing fees upfront) by the time they incurred the obligation for their sixth case.” Brief for Respondents 29. Finally, answering Bruce’s concern that the per-case approach could leave a prisoner without money for amenities, the Government points out that prisons “are constitutionally bound to provide inmates with adequate food, clothing, shelter, and medical care,” id., at 48 (citing Farmer v. Brennan, 511 U. S. 825, 832 (1994)), and must furnish “‘paper and pen to draft legal documents’ and ‘stamps to mail them,’” Brief for Respondents 48 (quoting Bounds v. Smith, 430 U. S. 817, 824, 825 (1977)). Moreover, the Government notes, the Federal Bureau of Prisons (BOP) “goes beyond those requirements,” providing inmates “articles necessary for maintaining personal hygiene,” and free postage “not only for legal mailings but also to enable the inmate to maintain community ties.” Brief for Respondents 48, n. 21 (internal quotation marks omitted).”

Affirmed

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7^th Circuit Court of Appeals

7^th Circuit Court of Appeals

Case Name: William I. Babchuk, et al., v. Indiana University Health, Inc., et al

Case No.: 15-1816

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

Practice Area: Due Process – 14^th Amendment

Grant of exclusive contract to provide radiology services not a federally protected interest.

“Tipton Hospital’s bylaws declare that the grant of medical privileges is “not a contract” and that appointment to the medical staff is “a privilege which may be extended by the Board [of Directors] only to professionally competent, fully licensed physicians … who continuously meet the qualifications, standards, and requirements set forth in these bylaws and as established by the Board” (emphasis added). The bylaws don’t define specific criteria for the removal or retention of privileges but instead provide a list of general qualifications and skills that a physician must demonstrate to maintain privileges, including “demonstrated competence,” “good reputation[],” “ability to work with others” and “ability and willingness to make efficient use of Hospital facilities.” A physician must “continuously maintain and demonstrate the appropriate level of competence, skill, training, and aptitude which would justify the continuance of those clinical privileges.” And finally and critically, the bylaws provide that nothing in them “shall in any way limit the ultimate authority of the Board to take action with respect to … the status [of] clinical privileges.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Delbert Heard v. Andrew Tilden, et al

Case No.: 15-1732

Officials: RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.

Practice Area: Cruel & Unusual Punishment

Prison doctor fails to act to mitigate delay in providing inmate with surgery for complained hernia. Warrants summary judgment reversal.

“In sum, the three defenses raised by the Wexford defend‐ ants are not persuasive because each relies on the defend‐ ants’ flawed characterization of Heard’s constitutional claim. And since these defendants have yet to deny Heard’s allegations or assert that he does not state a claim for deliberate indifference, our rejection of their defenses means that this action must be remanded for proceedings on the merits against Wexford and Dr. Tilden.”

Vacated and Remanded. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: Sergio Isunza v. Loretta Lynch          

Case No.: 15-1286

Officials: ROVNER, and WILLIAMS, Circuit Judges, and SHAH, District Judge. *

Practice Area: Judicial Review – Immigration

Petition for review denied for immigration appeal. Appellant is removable due to controlled substance charge.

“The Board reasonably construed the statute, 8 U.S.C. § 1229b, to find that commission of a qualifying drug crime permanently terminated the accrual of time toward continuous residency. In Matter of Nelson, 25 I. & N. Dec. 410, 413 (BIA 2011), the Board held that commission of a specified crime was a terminating event “after which continuous physical presence or continuous residence could no longer accrue.” Isunza points out that in Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005), the court determined that continuous presence could restart after a reentry into the United States. But that decision is an outlier and based on distinguishable facts—the petitioner’s notice to appear for removal proceedings was tied to an overstay of a student visa, not the commission of a crime. After Okeke, the Board decided Nelson, which firmly holds that a qualifying drug crime stops the clock. The Third Circuit then affirmed Nelson, and held that the Board’s conclusion that reentry did not restart the clock was reasonable. Nelson v. Attorney Gen. of U.S., 685 F.3d 318, 325 (3d Cir. 2012). More recently, the Third Circuit again cabined Okeke to cases where the petitioner’s notice omitted reference to a qualifying drug crime. Singh v. Attorney Gen. of U.S., 807 F.3d 547, 553 (3d Cir. 2015) (residency clock stopped when petitioner committed crime and “could never re-start”). Perhaps most importantly for our purposes, this court has declined to follow Okeke and said that petitioners cannot restart the clock and accrue time for purposes of establishing continuous physical presence after commission of a drug crime. Torres-Rendon v. Holder, 656 F.3d 456, 463 (7th Cir. 2011). The Board’s decision here was in line with this precedent. It also makes sense because a person who commits a drug crime and leaves the United States for a vacation “has no greater logical claim to be entitled to cancellation of removal than a similarly-situated alien who never leaves the country.” Nelson, 685 F.3d at 325. A logical decision, consistent with precedent, is a reasonable one and entitled to deference.”

Petition Dismissed in Part, Denied in Part

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7^th Circuit Court of Appeals

Case Name: Peter Enger, et al. v. Chicago Carriage Cab Corp., et al

Case No.: 15-1057

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

Practice Area: Class Action – Wage & Payment Collection Act – Contract

Employment agreement did not require compensation to drivers.

“Because the drivers have not shown that they are entitled to wages from defendants, their argument that defendants made improper deductions from their wages by requiring them to pay fees and expenses fails as a matter of law. Defendants do not pay the drivers’ wages and so they cannot be sued for taking deductions from those non-existent wages. More broadly, it is inaccurate to characterize the shift fees and other expenses that the drivers voluntarily pay to operate defendants’ cabs as a deduction. Instead, the drivers’ payment of fees and expenses is the consideration offered in exchange for the right to lease a cab and medallion under the parties’ implicit agreement. And although the drivers agreed to pay those fees and expenses, they now attempt to use the IWPCA to rewrite the terms of their employment agreement. But again, the IWPCA provides no substantive relief beyond what the underlying employment contract requires. In other words, the IWPCA exists to hold the employer to his promise under the employment agreement; by asking the judiciary to graft new terms into an employment contract without employer’s consent, the drivers turn the IWPCA on its head”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Laura Kubiak v. City of Chiacgo, et al

Case No.: 14-3074

Officials: DECEMBER 7, 2015 — DECIDED JANUARY 11, 2016

Practice Area: Retaliation – Discrimination – 1^st Amendment

Appellant fails to sufficiently allege facts to sustain claim.

“First, as to the content of Kubiak’s speech, Kubiak argues that speech involving police departments and misconduct of officers is always a matter of public concern. However, when analyzing the content of the speech, the broad subject matter is not determinative, and we must instead focus on the par‐ ticular content of the speech. Bivens, 591 F.3d at 560–61. The precise content of Kubiak’s speech focused on the work‐ related incident with Zala and on Kubiak’s concerns about her own safety. Kubiak’s complaint states that she informed Stratton “of what had occurred,” “that she was afraid that Officer Zala was going to physically strike her,” and that “Zala had similar outbursts in the past towards her” (empha‐ sis added). The complaint also states that Kubiak requested a meeting with Biggane to “discuss the incident” and that Kubiak’s memorandum to Biggane, which initiated the IAD in‐ vestigation, “complain[ed] of Officer Zala’s assault.” Thus, the particular content of Kubiak’s speech was focused on Zala’s actions toward Kubiak personally. See Houskins, 549 F.3d at 491–92 (holding that a social worker’s police report stating that a correctional officer had hit her did not address a matter of public concern because the report was “nothing more than [a] personal grievance against [the officer] in or‐ der to have him arrested for striking her”). “

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ulises Martinez Lopez v. Loretta E. Lynch

Case No.: 14-3805

Officials: BAUER, FLAUM, and MANION, Circuit Judges.

Practice Area: Petition to Review – Immigration – Removal

Appellant being a homosexual male and alleged threat of violence does not warrant delay of removal.

“In addition, while the numerous articles and studies cited by the Petitioner indicate that gay men have been victims of violence in Mexico, these do not suggest that the Petitioner is more likely than not to face such violence. See Rashiah, 388 F.3d at 1133 (“Though the country report supports the contention that torture occurs in Sri Lanka, it does not demonstrate that it is more likely than not that petitioner will be tortured if he returns.”) (emphasis in original). Moreover, the fact that Petitioner’s sister lives in Acapulco does not mean that he cannot move to an area of Mexico more accepting of homosexuals, especially since he has lived the last twenty-five years without his sister. See 8 C.F.R. § 1208.16(c)(3) (in determining whether to grant CAT protection, courts should examine whether the petitioner could relocate to another part of the country where he is not likely to be tortured). The record also reflects that medical treatment for HIV is free in Mexico, and that there are 57 clinics for HIV treatment located throughout the country.”

Petition Denied. Decision of Board of Immigration Appeals Affirmed

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7^th Circuit Court of Appeals

Case Name: Kevin J. Loveless v. Carolyn W. Colvin

Case No.: 15-2235

Officials: MANION, KANNE, and WILLIAMS, Circuit Judges.

Practice Area: Disability Benefits

Administrative law judge decision that appellant could conduct light work with restrictions supported by sufficient evidence.

“Loveless next challenges the ALJ’s use of language routinely criticized by this court as “meaningless boilerplate.” See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010); see also Bjornson v. Astrue, 671 F.3d 640, 644–45 (7th Cir. 2012); Martinez v. Astrue, 630 F.3d 693, 696 (7th Cir. 2011). Loveless argues that the language is faulty and represents forbidden backward analysis requiring remand. But the use of boilerplate is not a ground to remand if the ALJ justified his credibility assessment based on the evidence. Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014); Pepper v. Colvin, 712 F.3d 351, 367–68 (7th Cir. 2013). And here, although acknowledging Loveless’s testimony that he could not work, the ALJ reasoned that this contention was contradicted by the claimant’s activities of daily living, his routine and conservative medical treatment since 2011, and many earlier re‐ ports of minimal or no pain”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Luis Gutierrez-Rostran v. Loretta E. Lynch

Case No.: 15-2216

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

Practice Area: Immigration – Asylum

Appellant fails to make timely application for asylum. However, denial of appeal not properly justified.

“The treatment by the immigration court and the Board of the cousin’s murder was too cursory to justify denial of Gutierrez-Rostran’s application for withholding of removal. There was evidence of violence by Sandinistas against liberal party members; the cousin was a liberal from a well-known liberal family; and Gutierrez-Rostran’s testimony, RuizSotelo’s testimony (including his testimony that public officials—a mayor and a police chief—had refused to protect him against Sandinista harassment), and letters of Gutierrez-Rostran’s parents and of PLI officials, made a prima facie showing that Gutierrez-Rostran would be in great danger were he to be returned to Nicaragua while the Sandinistas are in power. Although Gutierrez-Rostran’s parents, brothers, sisters, and uncles have not been persecuted, the parents are old (his father is 78) and neither they nor his one surviving uncle nor the sisters nor the brothers—who, remember, no longer live in Nicaragua—are politically active. An uncle of Gutierrez-Rostran who had been a liberal mayor was allowed to die in peace, but he too was old.”

Petition for Asylum Dismissed

Denial of Witholding of Removal Set Aside and Remanded

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7^th Circuit Court of Appeals

Case Name: Roberta M. Jaburek

Case No.: 15-2165

Officials: WOOD,Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

Practice Area: Discrimination – Retaliation

Appellant fails to establish prima facie case for any of discrimination or retaliation allegations.

“In this case, Appellant has not demonstrated multiple elements of a prima facie case for Title VII failure to promote. Primarily, she has not shown that the FAA rejected her from the position of Program Analyst because she never applied for the position. See Johnson v. Gen. Bd. of Pension & Health Benefits of United Methodist Church, 733 F.3d 722, 728 (7th Cir. 2013) (holding that failure to promote claim requires that plaintiff “appl[y] for … the position sought” and granting summary judgment on Title VII failure to promote claim where plaintiff did not apply for higher position (quotation marks and citations omitted)). She instead provides her emails and letters to Wilson and Lay describing her duties as that of a Program Analyst. But this is not evidence of an application for the position.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Acasio Sanchez

Case No.: 15-1356

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

Practice Area: Pleas & Sentencing

Sentence enhancement warranted for appellant whom used home as drug storage

“Although other cases have found that certain facts justified the enhancement, this “does not mean that those facts necessarily must be shown in every case.” United States v. Johnson, 737 F.3d 444, 448 (6th Cir. 2013). The guideline specifically covers storage, see U.S.S.G. § 2D1.1(b)(12) cmt. n.17 (2014), and while storing additional tools of the drug-trafficking trade can be “indicia that drug trafficking was the principal use of the premises,” it is not the only relevant inquiry, United States v. Flores-Olague, 717 F.3d 526, 533 (7th Cir. 2013) (citing United States v. Miller, 698 F.3d 699, 706–07 (8th Cir. 2012)). Additionally, a premise can have more than one primary use (drug distribution and residence), and, as long as it is more than “incidental or collateral,” drug distribution does not have to be the “sole purpose.” U.S.S.G. § 2D1.1(b)(12) cmt. n.17 (2014); see United States v. Bell, 766 F.3d 634, 638 (6th Cir. 2014); Miller, 698 F.3d at 706–07. Moreover, it does not matter that Sanchez did not have a bigger role in the conspiracy; the use of his home was still integral. See Johnson, 737 F.3d at 448–49. And he did not have to control access to the closet to the exclusion of everyone else, such as his girlfriend, for the enhancement to apply. See United States v. Jones, 778 F.3d 375, 385 (1st Cir. 2015). Finally, the inside porch is part of the house even if it is separated from the main living area. See Bell, 766 F.3d at 637. The district court properly focused on the fact that Sanchez received large drug deliveries every few weeks, was paid a large sum for storage, and controlled access to the drugs when deciding that one of the primary purposes of his home was drug distribution”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kelly Sonnenberg, et al. v. Amaya Group Holdings (IOM) Limited

Case No.: 15-1885; 15-1887

Officials: BAUER, POSNER, and KANNE, Circuit Judges

Practice Area: Online Gambling – Loss Recovery Act

Gamblers who lost money to internet gambling website sue website to recover loses – case is dismissed.

“Creating legal remedies for gambling losses as a way to discourage gambling seems a lost cause, since the usual gambling “loss” is not a real loss and hence is not a real spur to litigation unless the game is rigged. A gambler knows that the money he puts in the pot is at risk. It is not a risk he has to take; he takes it because he hopes to win the pot, or simply because he likes gambling or risk taking in general. If he loses $50 he may well say to himself “I’d rather have won, but $50 wasn’t too high a price to pay for a night of gambling, and en route to losing $50 I did after all win some nice pots and get compliments from the guys I was playing with.”

Affirmed

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Wisconsin Supreme Court

WI Supreme Court

Case Name: State of Wisconsin v. Brett W. Dumstrey

Case No.: 2013AP857-CR

Practice Area: Motion to Suppress – 4^th Amendment

Parking garage under appellant homes does not constitute curtilage of his home and no expectation of privacy awarded there.

“That the parking garage is included within the enclosure of the entire apartment building could tend to favor the garage being part of his home’s curtilage. However, we note that, under this same rationale, Dumstrey’s 29 fellow tenants’ apartments are likewise included within the same enclosure as his own apartment. As indicated above, it cannot reasonably be contended that each of these tenants’ homes constitutes part of Dumstrey’s home for purposes of the Fourth Amendment. Therefore, we are not persuaded by the parking garage being included within the overall enclosure that encompasses the entire apartment building.”

Affirmed

PROSSER, GABLEMAN, J.J., concur. (Opinion Filed)

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

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

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