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Weekly Case Digests — May 9-13, 2016

By: WISCONSIN LAW JOURNAL STAFF//May 13, 2016//

Weekly Case Digests — May 9-13, 2016

By: WISCONSIN LAW JOURNAL STAFF//May 13, 2016//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Julio Leija-Sanchez, Manual Leija-Sanchez, and Gerardo Salazar-Rodriguez

Case No.: 14-1393, 14-1584, 15-1589

Officials: FLAUM, EASTERBROOK, and HAMILTON, Circuit Judges.

Focus: Extraterritorial Application of Civil Statutes

Civil Statue applied to murder conducted in Mexico in furtherance of US fraud scheme.

“Appellants’ principal argument is that our 2010 decision should be overruled. They rely on Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), which reiterated the presumption against extraterritorial application of civil statutes. Yet our 2010 decision recognized that U.S. law has such a presumption and thought it not controlling, for two reasons: first, Bowman distinguishes criminal from civil law, holding that different rules apply; second, the murder in Mexico was arranged and paid for from the United States, and was committed with the goal of protecting a criminal organization that conducted business in the United States in order to defraud officials of the United States government as well as employers in the United States. The murder thus had ample links to the United States, and since §1959 covers racketeering in foreign commerce as well as in interstate commerce, we thought that its language applies.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Knauf Insulation Inc., v. Southern Brands, Inc., et al

Case No.: 15-3157

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Focus: Personal Guaranty – Jurisdiction

Forum selection clause and personal guaranty overcome appellants arguments against proper jurisdiction.

“These arguments have no merit. The guaranty is explicit that it covers future as well as current obligations, for re‐ member that it embraces “all obligations of the DEBTOR to the CREDITOR, howsoever created, … whether … now or hereafter existing, or due or to become due.” Under Indiana law “a continuing guaranty encompasses all transactions, including those arising in the future, that are within the con‐ templation of the agreement,” S‐Mart, Inc. v. Sweetwater Cof‐ fee Co., 744 N.E.2d 580, 587 (Ind. App. 2001)—and the Dowds’ guaranty expressly contemplated liability for future obligations of unknown magnitude.  “

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. David L. Crisp, Jr.

Case No.: 15-2694

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

Focus: Pleas & Sentencing – Conditions of Supervised Release

Appellant properly ordered to pay for substance abuse treatment as part of supervised release.

“We agree with the Fifth and Ninth Circuits that the comparisons to schedules for fine payments and restitution payments are not persuasive here. The statutes governing fine and restitution schedules are much more detailed and explicit about the district court’s responsibilities. See 18 U.S.C. § 3572 (d)(2) and (3) (requiring court, if immediate payment of fine is not required, to set schedule for “shortest time in which full payment can reasonably be made” and to require defendant to notify court of material change in economic circumstances); § 3664(f)(2) (requiring court to “specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid….”)(emphasis added). As noted, § 3672 has only one general sentence addressing the ability-to-pay question and provides no details about how courts are to determine if “funds are available” or the method and procedure by which “such funds” should be paid to the probation office”

Affirmed

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7th Circuit Court of Appeals

Case Name: Francisco Alberto Romero Arrazabal v. Loretta E Lynch

Case No.: 15-2413

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

Focus: Immigration – Removal

Judge acknowledgement that appellant may be tortured if returned to his native El Salvador warrants review of immigration judge decision.

“We are also concerned about the manner in which the immigration judge rejected Arrazabal’s claim for CAT relief. The judge acknowledged that it was possible that Arrazabal would be tortured in El Salvador with at least the acquiescence of the police, yet he concluded without elaboration that Arrazabal had not met his burden of showing that result was “more likely than not.” See 8 C.F.R. § 1208.16(c)(2–3). But that oft-repeated phrase must be understood pragmatically in the immigration context, because there is no reliable data to show just how great an applicant’s risk of torture is. See, e.g., Gutierrez-Rostran v. Lynch, 810 F.3d 497, 501 (7th Cir. 2016); Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135–36 (7th Cir. 2015); Yi–Tu Lian v. Ashcroft, 379 F.3d 457, 461 (7th Cir. 2004). “All that can be said responsibly on the basis of actually obtainable information is that there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States.” Rodriguez-Molinero, 808 F.3d at 1135–36.”

Petition for review granted

Order for Removal Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. David A Resnick

Case No.: 14-3791

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

Focus: Sufficiency of Evidence – Court Error

Court made no error in admittance of evidence, appellant forfeited objections at trial.

“Ultimately, however, the proper characterization does not matter here. A Fifth Amendment self‐incrimination violation is not structural error. See Chapman v. California, 386 U.S. 18, 24 (1967) (holding Fifth Amendment self‐incrimination error not grounds for reversal of conviction if proven harmless “beyond a reasonable doubt”); Jumper, 497 F.3d at 703 (same). Thus, if the district court committed Fifth Amendment error (a question we need not decide), we must still decide whether any such error was “plain.” We have never before held that the refusal to take a polygraph implicates the Fifth Amendment. Moreover, Resnick’s refusal to take a polygraph was mentioned only once by each side during closing, the evidence against him was very strong, and his defense did not depend on his credibility because he did not take the stand at trial. It is Resnick’s burden to “make a specific showing of prejudice” in order to satisfy the “substantial rights” part of the plain error analysis. Olano, 507 U.S. at 735. He has not done so. The dissent overstates matters when it says, post at 7, that “only an innocent defendant could have his conviction reversed” under the approach to plain error we have taken. Any defendant who can point to an error that affected his “substantial rights” (and the other criteria of Olano) can show plain error. Resnick’s problem is that any error in admitting the testimony about his reluctance to submit to a polygraph was not plain and did not affect his substantial rights in light of the record as a whole. It therefore does not support reversal of his conviction”

Affirmed

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7th Circuit Court of Appeals

Case Name: Gustavo Dominguez-Pulido v. Loretta E. Lynch

Case No.: 14-3557, 15-1298, 15-2208

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

Focus: Immigration – Removal Proceedings

Court of appeals finds no reason to overturn immigration judge decision for removal of appellant.

“The record also leads us to conclude that Dominguez-Pulido received a full and fair hearing. Dominguez-Pulido was represented by counsel throughout his removal proceeding and had the opportunity to challenge the charges by presenting testimony from himself and his brother, as well as exhibits in support of his applications for relief. He does not claim that he was prevented from presenting his case or that the IJ excluded significant testimony. Dominguez-Pulido had a meaningful opportunity to be heard, and both the IJ and the Board decided his case based on detailed analyses of the evidence. Moreover, Dominguez-Pulido’s claims that he was arrested without probable cause and was not advised of his rights are wholly unsubstantiated. He does not explain why there was no probable cause for his arrest by immigration officers. In addition, the Form I-213 shows that Dominguez-Pulido was served with a “Notice of Rights” upon his apprehension by immigration authorities.”

Petition to review denied

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7th Circuit Court of Appeals

Case Name: Jeremy D. Cairel et al v. Jacob Alderden

Case No.: 14-1711

Officials: POSNER, MANION, and HAMILTON, Circuit Judges

Focus: Mistaken Arrest – Remedies

There was no evidence of misconduct warranting civil remedy in mistaken arrest case.

“First, summary judgment was properly granted on plaintiffs’ federal due process claims. Plaintiffs’ fabrication claim is foreclosed because they were not deprived of sufficient liberty to support their claim. Plaintiffs’ suppression claim fails because they have no evidence that defend‐ ants concealed evidence unknown to plaintiffs supporting their alibi or that any failure to disclose caused a deprivation of liberty. Cairel’s substantive due process claim for coercion fails because no reasonable jury could find that his interrogation “shocked the conscience.” Plaintiffs’ state‐law claims also fail. Probable cause for the criminal charges defeats the claims for malicious prosecution, and no reasonable jury could find that defendants’ conduct was so “extreme and outrageous” as to prove intentional infliction of emotional distress.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Darral C. Morris

Case No.: 15-3154

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

Focus: Plea Withdrawal

Precedent consistently shows that a discrepancy between sentencing range stated in a plea agreement and the sentence range found by the court is insufficient basis for withdrawing a guilty plea.

“Additionally, our precedent provides that a discrepancy between the sentencing range stated in the plea agreement and the sentencing range found by the court is an insufficient basis for withdrawing a guilty plea. United States v. Patterson, 576 F.3d 431, 438–39 (7th Cir. 2009). In Patterson, the defendant signed a plea agreement anticipating a sentence that ended up being lower than the sentence ultimately imposed by the district court. Id. at 438. Patterson argued that the district court should have vacated his guilty plea because of this discrepancy. Id. We upheld the validity of the plea agreement, explaining that the plea agreement stated that it did not control the sentence imposed by the district court. Id. at 438–39. The same reasoning applies here. Thus, the district court did not abuse its discretion in denying Morris’s motion to withdraw his plea. See United States v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996) (noting that although there must be a “meeting of minds” on all essential elements of a valid guilty plea, the defendant’s sentence is not an essential term of the agreement, and the parties leave the determination of the sentence to the discretion of the district court).”

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Paul A. Carson

Case No.: 15-2899

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

Focus: Condition of Supervised Release

Condition of supervised release calling for probation officer to visit home of appellant constitutional and not in violation of 4th amendment.

“If this judge’s statement that the home-visit condition will enable the probation office to “keep watch” and help enforce the other terms of release implies that a home-visit condition would be appropriate in every case: why is that a problem? True, the Sentencing Commission did not put a home-visit condition on the list of eight mandatory conditions. U.S.S.G. §5D1.3(a). It is instead tenth on the list of standard conditions that the Commission recommends. U.S.S.G. §5D1.3(c)(10). (The district judge did Carson a favor; the Sentencing Commission’s standard condition 10 says that the probation officer may visit the release “at any time at home or elsewhere”.) We cannot see anything in either the statutes or the Guidelines that forbids a district court to impose one of the standard conditions in every case. District judges may set their own sentencing policy. See Kimbrough v. United States, 552 U.S. 85 (2007); United States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc). A judge who believes that standard condition 10 should have been mandatory condition 9 is entitled to put that view into practice, just as a judge who thinks that crack and powder cocaine always should be treated identically is entitled to put that view into practice and to do so without an elaborate statement of his penal philosophy in every case.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Michael B. Johns et al, v. Pushpin Holdings, LLC, et al

Case No.: 15-2771

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

Focus: Federal Jurisdiction

Plaintiffs have multiple claims all without merit, as such case properly dismissed with prejudice.

“The plaintiffs have still other claims, such as abuse of process and malicious prosecution. Those claims have no merit either, for reasons well explained by Judge Kocoras and unnecessary for us to repeat. So the plaintiffs must lose. But we want to remark in closing two features of the case that we find troubling, though there is nothing we can do about them. The first is the enforceability of forum‐selection clauses against unsophisticated signers of the clauses, which may describe many of the sole proprietors and other small businesses that leased cred‐ it‐card processing machines from CIT. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)—a much‐criticized decision (see, e.g., Linda S. Mullenix, “Carnival Cruise Lines, Inc. v. Shute: The Titanic of Worst Decisions,” 12 Nevada Law Journal 549 (2012)), the Supreme Court upheld a forum‐ selection clause printed on the “contract” pages attached to a cruise ticket. The clause had not been negotiated but simply imposed by the cruise line on the passengers, who were un‐ likely to appreciate its significance—the prospect of bringing a lawsuit against the line was not something many passengers would have been thinking about when they bought their tickets. The same may be true in this case with regard to the individuals and small businesses that leased the cred‐ it‐card processing machines. But in light of Carnival, and considering that most lessees of credit‐card processing ma‐ chines lease them for use in business, a defense of unconscionability to the enforcement of the leases and the guaranties would be unlikely to succeed. And even if it were possible within the compass of existing law to invalidate the clauses in a case such as this, the class has challenged the forum‐selection clauses only on the ground that they are an inconvenience to nonresidents of Cook County, Illinois, the selected forum. Any forum‐selection clause will be an inconvenience to a nonresident signer of the contract containing the clause, so that the challenge by the class amounts to urging a blanket prohibition of such clauses, which goes too far.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Dual-Temp of Illinois, Inc. v. Hench Control, Inc. et al

Case No.: 15-2659

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

Focus: Breach of Contract

Plaintiff supply of faulty refrigerator amounted to breach of contract.

“However, defendants seem to confuse installation with startup. Installation occurred from the end of March through April 2007. After installation, the RCS still had to be connected to the refrigeration system through startup. Defendants’ installation technician assisted with startup in May 2007. The communication failures also began in May 2007, shortly after startup, and about one month after installation. Additionally, the RCS had to be connected to the refrigeration system through startup in order to communicate with the refrigeration system. Thus, the communication failures could not have commenced prior to startup. Finally, even if we assume for the sake of argument that the Hench RCS did operate properly for some time after startup, there is sufficient circumstantial evidence, as discussed above, for a reasonable factfinder to conclude that the communication failures were caused by a defect in the Hench RCS. Therefore, the district court properly concluded that defendants breached the contract.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Bassam Assaf v. Trinity Medical Center

Case No.: 15-2587

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

Focus: Breach of Contract – Employment

Appellant fails to provide adequate proof for loss of professional fees with supporting evidence.

“The problem with this claim, however, is that those professional fees were not paid to Assaf. The fees were paid directly to the practice, and Assaf concedes on appeal that he had no ownership interest in that practice and that the fees did not accrue to him personally. Assaf acknowledges that because of his immigration status, the practice is owned by his wife not by him. Moreover, Assaf does not claim that his salary or other compensation was affected by the alleged decrease in professional fees. In fact, in his brief and at oral argument, he conceded that he is not claiming a loss of income. Therefore, Assaf is attempting to claim damages for a loss of professional fees to the practice, and to his wife as owner of that practice, which did not adversely impact his own income. His wife is not a party to this action, and Assaf has failed to establish that he, as opposed to his wife or the practice, experienced any loss of professional fees. In fact, on appeal he asserts that it does not matter where the fees would have gone, but only that they were generated by his performance of services. But Assaf received a salary for those services which was unchanged throughout the time period at issue, and he denies on appeal that his salary or income was adversely affected by the loss of fees. In short, he provides no argument to differentiate himself from any employee of a business, and asserts no basis for allowing such an employee to recover damages for lost profits of a business in which the employee has no ownership or legal interest and in which the employee alleges no impact on his own compensation. Assaf has failed to argue that he has any interest in the professional fees for which he seeks damages. If he were able to prove any errors in the trial, a dubious proposition in itself, those errors would be harmless because his admissions establish that he in fact suffered no loss of professional fees”

Affirmed

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7th Circuit Court of Appeals

Case Name: Joseph S. Roberts v. Columbia College Chicago, et al

Case No.: 15-2079

Officials: BAUER and HAMILTON,Circuit Judges, and PETERSON, * District Judge

Focus: Summary Judgment – Breach of Contract – Age Discrimination

Appellant makes baseless claims in response to termination stemming from plagiarizing allegations.

“In this case, Love conducted her own investigation into whether to terminate Roberts’ employment. She read Roberts’ Economics for Arts Entrepreneurs and Managers and compared the controversial chapters with the specific un‐credited sections from Sichel and Eckstein’s Basic Economic Concepts. By examining the primary sources, she determined for herself that Roberts had committed plagiarism. In addition, Love consulted with Nichols after Nichols had previously met with Roberts regarding the situation. Although Love also reviewed Ravanas’ memorandum, itis clear that she conducted a “meaningful and independent investigation” into the matter apart from relying on Ravanas’ recommendations. Further, Roberts does not contest the accuracy of Ravanas’ memorandum, and in fact admitted the accuracy of substantially all of the allegations contained therein. Also, there is no evidence that any other tenured professor, of any age, had engaged in similar plagiarism and had not been fired. Thus, there is no reasonable inference that Ravanas’ age hostility against Roberts manipulated Love’s decision to terminate Roberts’ employment.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Clifton Morgan v. City of Chicago

Case No.: 14-3307

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

Focus: Equal Protection Clause – Motion for New Trial

Motion for new trial denied as appellant not deprived of a fair trial.

“There is no requirement that a district court hold a pretrial conference, see Fed. R. Civ. P. 16(a), and courts have “broad powers to determine the proper method of preparing a case for trial,” Mizwicki v. Helwig, 196 F.3d 828, 833 (7th Cir. 1999) (noting that a “court’s discretionary order should not be disturbed on review unless it is clear that no reasonable person would rule as the district court judge did”). We see no basis in the record for questioning the court’s decision to forego a pretrial conference. With regard to the court’s deferral of its motions in limine rulings until trial, we cannot accept Mr. Morgan’s argument that this decision created an atmosphere of “trial by surprise.”61 Indeed, a district court has continuing discretion throughout the proceedings to alter earlier rulings even when it rules on motions in limine before trial. See Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir. 2013). The district court’s resolution of these pretrial issues fits comfortably within its broad discretion on such matters and did not render Mr. Morgan’s trial unfair.”

Affirmed

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Wisconsin Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Da Vang

Case No.: 2015AP674

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

Focus: Ineffective Assistance of Counsel

Da Vang, pro se, appeals an order denying his WIS. STAT. § 974.061 motion for postconviction relief. Vang seeks a new trial, asserting his postconviction counsel was ineffective by failing to challenge the denial of Vang’s statutory right to be present at trial. We conclude Vang’s argument is procedurally barred and, therefore, affirm the order.

WI Court of Appeals – District III

Case Name: Town of Winchester v. John Stilson et al

Case No.: 2015AP1893

Officials: HRUZ, J.

Focus: Forfeiture – Ordinance Violation

John and Michele Stilson appeal a forfeiture order finding them in violation of a Town of Winchester ordinance regulating exterior lighting. The order required the Stilsons to pay a total of $1,925 for the violations and awarded the Town $6,603 in attorney’s fees and costs. The Stilsons argue the Town’s small claims action should have been dismissed because the parties reached a settlement prior to trial. However, we conclude no valid and enforceable settlement agreement was reached between the parties. The Stilsons also argue the circuit court erroneously awarded the Town attorney’s fees and costs in excess of those permitted by statute and the ordinance was unconstitutionally vague. We conclude the Stilsons forfeited the former argument by their failure to raise the issue before the circuit court, and their argument on the latter point is undeveloped. Accordingly, we affirm. Nevertheless, we remand the matter to the circuit court to clarify a discrepancy between its oral findings of fact and the final order as to the number of days the Stilsons were found to be in violation.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Raul H. Alonso

Case No.: 2015AP1238-CR

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

Focus: Motion to Suppress – Waiver of Rights

Raul Alonso appeals from a judgment convicting him of possession with intent to distribute THC, possession with intent to distribute cocaine, and maintaining a drug trafficking place. Alonso argues that the circuit court erred when it denied his motion to suppress statements he made during an interview with two police officers and an unidentified immigration officer. He argues that he did not knowingly and intelligently waive his Miranda rights and that his subsequent inculpatory statements were involuntary. We affirm.

WI Court of Appeals – District II

Case Name: The Homestead of Waukesha, LLC v. The Homestead Condominium Association, Inc.

Case No.: 2015AP1367

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

Focus: Breach of Contract

The Homestead of Waukesha, LLC (Homestead), the declarant and developer of The Homestead Condominiums of Waukesha, filed suit against The Homestead Condominium Association, Inc., (the Association), primarily alleging breach of contract. The action expanded when the Association filed a third-party complaint against Homestead’s managing member, Mark W. Holiday, individually. The matter before us involves the Association’s appeal of the order dismissing its third-party complaint against Holiday. We affirm.

WI Court of Appeals – District II

Case Name: Vincent Milewski et al v. Town of Dover, et al

Case No.: 2015AP1523

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

Focus: Tax Assessments

Vincent Milewski and Morganne MacDonald (Plaintiffs) seek a declaration that Wisconsin law on property tax assessments and appeals is unconstitutional. Plaintiffs filed suit against the Town of Dover, the Board of Review for the Town of Dover, and Gardiner Appraisal Service, LLC, (collectively, Defendants) for violating Plaintiffs’ constitutional and statutory rights. Plaintiffs appeal an order of the circuit court denying Plaintiffs’ partial motion for summary judgment, granting Defendants’ motions for summary judgment, and dismissing all claims against Defendants. We affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Melvin P. Vongvay

Case No.: 2015AP1827-CR

Officials: REILLY, P.J.

Focus: OWI – Motion to Suppress

Melvin P. Vongvay appeals from the circuit court’s denial of his motion to suppress evidence and judgment of conviction for operating a motor vehicle while under the influence (OWI), second offense, contrary to WIS. STAT. § 346.63(1)(a). Vongvay argues that the results of his nonconsensual, warrantless blood test should have been suppressed by the circuit court as there were no exigent circumstances necessitating a blood test without a warrant. We affirm, as the totality of the circumstances demonstrates that the warrantless blood draw was constitutionally justified by exigent circumstances.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jeffrey S. Decker

Case No.: 2015AP1994-CR

Officials: NEUBAUER, C.J.

Focus: Sufficiency of Evidence

Jeffrey S. Decker appeals from a judgment convicting him of obstructing an officer, contrary to WIS. STAT. § 946.41(1). Decker contends that the evidence was legally insufficient to support the charge of obstructing an officer, that he was denied the right to present a defense, and that the conviction should be overturned in the interests of justice. We reject each of these contentions and, thus, affirm.

WI Court of Appeals – District II

Case Name: Waukesha County v. J.W. J.

Case No.: 2016AP46-FT

Officials: REILLY, P.J.

Focus: Ch. 51 Commitment

J.W.J. appeals from an order extending his involuntary commitment and an order for involuntary medication and treatment. J.W.J. argues that Waukesha County failed to prove by clear and convincing evidence that J.W.J. is a proper subject for treatment under WIS. STAT. ch. 51. Because the evidence presented at J.W.J.’s commitment hearing supports extending the commitment, we affirm.

WI Court of Appeals – District IV

Case Name: Klismet’s 3 Squares Incorporated v. Navistar, Inc.

Case No.: 2014AP1830

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

Focus: Calculation of Damages

Navistar, Inc., appeals from judgments of the circuit court awarding Klismet’s 3 Squares Incorporated damages under Wisconsin’s “Lemon Law,” WIS. STAT. § 218.0171 (2011-12), and awarding Klismet’s’ trial counsel attorney fees and costs. The circuit court awarded Klismet’s damages in the amount of $199,500.42. On appeal, Navistar contends that Klismet’s’ Lemon Law claim was barred and that the circuit court erred in the court’s calculation of Klismet’s’ damages. For the reasons discussed below, we affirm.

Recommended for publication

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WI Court of Appeals – District IV

Case Name: GP Tangible Investments, LLC v. Wisconsin Department of Revenue

Case No.: 2015AP1605

Officials: Lundsten, Higginbotham, and Blanchard, JJ.

Focus: Tax Surcharge

GP Tangible Investments, LLC challenges surcharges imposed by the Wisconsin Department of Revenue under the recycling surcharge statute, WIS. STAT. § 77.93 (2009-10), for the years 2007-2009. The Wisconsin Tax Appeals Commission upheld the surcharges, and the circuit court affirmed the commission. Tangible argues that the commission erred in determining that Tangible was a partnership “that derived income from business transacted in this state” as defined in § 77.93(3). Tangible also argues that imposing the recycling surcharge on it amounts to impermissible double taxation, because one of its partner entities paid a recycling surcharge on that entity’s Wisconsin income during the years at issue and because it violates the due process clause of the federal and Wisconsin constitutions. For the following reasons, we affirm the decision of the commission.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Zachary W. Swan

Case No.: 2015AP1718-CR

Officials: SHERMAN, J.

Focus: OWI – Motion to Suppress

Zachary Swan appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC), second offense. Swan contends that the arresting officer did not have probable cause to request that he perform a preliminary breath test (PBT) and that the results of that test, and any evidence obtained thereafter, should have been suppressed. Upon Swan’s motion for reconsideration, this court has withdrawn its prior opinion that affirmed the judgment on the grounds that Swan had not argued that the circuit court’s denial of his motion to suppress on the basis of issue preclusion was erroneous. Swan argued in his reconsideration motion that in light of the fact that both he and the State failed to address the circuit court’s apparent denial of Swan’s motion on the basis of issue preclusion in their briefs on appeal, he should be permitted to do so. The State did not oppose Swan’s motion. For the reasons discussed below, I affirm.

US Supreme Court Digests

U.S. Supreme Court

Case Name: Ocasio v. United States of America

Case No.: 14-361

Focus: Color of Official Right – Fraud – Hobbs Act

Defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right.

“The general federal conspiracy statute, under which petitioner was convicted, makes it a crime to “conspire . . . to commit any offense against the United States.” 18 U. S. C. §371. Section 371’s use of the term “conspire” incorporates age-old principles of conspiracy law. And under established case law, the fundamental characteristic of a conspiracy is a joint commitment to an “endeavor which, if completed, would satisfy all of the elements of [the underlying substantive] criminal offense.” Salinas v. United States, 522 U. S. 52, 65. A conspirator need not agree to commit the substantive offense—or even be capable of committing it—in order to be convicted. It is sufficient that the conspirator agreed that the underlying crime be committed by a member of the conspiracy capable of committing it. See id., at 63–65; United States v. Holte, 236 U. S. 140; Gebardi v. United States, 287 U. S. 112.”

Affirmed

Concurring: BREYER

Dissenting: THOMAS, SOTOMAYOR, ROBERTS

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