Weekly Case Digests — June 13-17, 2016

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7^th Circuit Court of Appeals Digests

7^th Circuit Court of Appeals

Case Name: Anastazia Schmid v. Steven McCauley

Case No.: 14-2974

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

Focus: Tolling – Appointment of Counsel

Appellant not appointed counsel and missed deadline to bring §2254 proceedings

“As in Christeson this suggests that the district court’s first step should have been to appoint counsel for Schmid under 18 U.S.C. §3006A(a)(2)(B). (Christeson dealt with 18 U.S.C. §3599, which uses the same standard as §3006A(a)(2)(B).) Counsel could have investigated Schmid’s mental condition and explored the contents of prior counsel’s files, formulating an explanation for delay satisfactory to the district judge. We remand this case with directions to appoint counsel and, if appropriate, hold an evidentiary hearing. Decisions about equitable tolling under §2244(d) are reviewed deferentially on appeal, whether the district court finds tolling warranted or unwarranted. See Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010); Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008). We have not applied that deferential standard here, however, because the district court did not gather the evidence needed for decision. Nor did the court consider whether a hearing is necessary. Once counsel has had a chance to present the best arguments from Schmid’s perspective, the district court should apply the approach of decisions such as Estremera, 724 F.3d at 775–76; Davis v. Humphreys, 747 F.3d 497 (7th Cir. 2014); and Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013), to determine whether a hearing is in order”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jared S. Fogle

Case No.: 15-3770

Officials: FLAUM and MANION, Circuit Judges, and ALONSO, District Judge.*

Focus: Pleas & Sentencing – Court Error

Court did not commit procedural substantive error in assessing sentence

“Fogle’s arguments regarding substantive error are unpersuasive in light of the deference “we must give … to the district court’s determination that the § 3553(a) factors, taken as a whole, justified the extent of the variance” from the guidelines range. Scott, 555 F.3d at 610. The district court provided a thorough explanation for its imposition of an above-guidelines sentence, which is all that was required. And contrary to Fogle’s allegation of double-counting, the district court properly invoked the § 3553(a) factors and explained why the aggravated nature and circumstances of Fogle’s offenses warranted a higher sentence for both counts. Specifically, the district court noted that Fogle knew that his employee was secretly videotaping minors yet never reported this to law enforcement, as well as the fact that Fogle repeatedly acted on his attraction to minors rather than limiting himself to fantasies. The court also discussed how Fogle’s lack of a difficult upbringing failed to mitigate the circumstances of his conviction, and how his celebrity status could be viewed as both a mitigating and aggravating factor.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Sally Iriri

Case No.: 15-3692

Officials: POSNER and FLAUM, Circuit Judges, and ALONSO, District Judge.

Focus: Pleas & Sentencing

Enhancement appropriate given circumstances and appellant conduct.

“The sentencing judge cannot be criticized for adding al‐ most two years to the top of the defendant’s guidelines sen‐ tence. Not only is a federal judge not bound to give a sen‐ tence within the applicable guidelines range; he is not per‐ mitted to do so without first considering the sentencing factors in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 49–50 (2007). One factor is the need for the sentence “to afford adequate deterrence to criminal conduct.” § 3553(a)(2)(B). The scheme in which the defendant partici‐ pated was extremely lucrative, and even if the slogan at‐ tributed (probably incorrectly) to P. T. Barnum that “There’s a sucker born every minute” is an exaggeration, it is obvious that in this nation of 324 million people a very large number of persons are unusually vulnerable to scams, a fact that magnifies the prospective profits of the scammers (unless there are too many of them).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Matthew D. Claussen v. Michael R. Pence

Case No.: 16-1003

Officials: POSNER and FLAUM, Circuit Judges, and ALONSO, District Judge

Focus: Challenge to Legislation

Legislation prohibiting persons holding elected office from being employed as civil servant in same unit of government did not violate 1^st or 14^th amendment.

“The Indiana Law surely passes muster under rational basis review. There is a clear, rational relationship between pre‐ venting actual and perceived corruption and Indiana’s treatment of municipal employees. Although government contractors who hold elected office could use their voting power to enrich themselves at the expense of the public, Indiana sub‐ jects government contractors to extensive disclosure requirements, which reduces the risk of self‐dealing. And even if the risk of self‐dealing were identical for contractors and employees, Indiana is not required to address all manifestations of public corruption at once. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 316 (1993) (holding that the State “must be allowed leeway to approach a perceived problem incrementally”); Clements, 457 U.S. at 969 (“The Equal Protection Clause allows the State to regulate one step at a time, addressing itself to the phase of the problem which seems most acute.” (citation and internal quotation marks omitted)). Thus, the district court properly dismissed plaintiffs’ claim under the Equal Protection Clause.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Eddie Bell

Case No.: 15-2670

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

Focus: Pleas & Sentencing – Pleas & Sentencing

Collateral relief does not alter judgment of the court regarding sentence of appellant.

“Mr. Bell instead raises an argument outside the scope of our review. He contends we should remand this case so the district court may determine if it should lower his sentence in light of Amendment 782 to the sentencing guidelines. Amendment 782 reduced the base offense levels assigned to drug quantities, including those applicable to Mr. Bell, by two levels. U.S.S.G. app. C., amend. 782, p. 71 (2014). We cannot address Mr. Bell’s argument, however, as it is unrelated to the only issue properly before us. Further, this form of retroactive relief is unavailable to a defendant on direct appeal. See, e.g., United States v. Taylor, 778 F.3d 667, 672 (7th Cir. 2015) (holding that a defendant could not seek relief on direct appeal “based on retroactive Amendment 782”); United States v. Hayden, 775 F.3d 847, 850 (7th Cir. 2014) (“Our handling of [the defendant’s] direct appeal is not changed, however, by Amendment 782 having taken effect.”); United States v. Tatum, 548 F.3d 584, 588 (7th Cir. 2008) (holding that another retroactive amendment to the sentencing guidelines involving a twolevel reduction was not ground for a remand on direct appeal). Mr. Bell instead must file in the district court a motion under 18 U.S.C. § 3582(c)(2) raising this argument, allow the district court to rule on it, and then appeal from that order. See United States v. White, 582 F.3d 787, 799 (7th Cir. 2009). We note that he has filed such a motion in the district court.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: The Unsecured Creditors Committee of Sparrer Sausage Company, Inc. v. Jason Foods, Inc.

Case No.: 15-2356

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

Focus: Bankruptcy

Payment to one of appellant suppliers were in the ordinary course of business.

“Here a 16-to-28-day baseline range encompasses just 64% of the invoices that Sparrer Sausage paid during the historical period. Even more problematically, the judge offered no explanation for the narrowness of this range. Why exclude invoices that Sparrer Sausage paid within 14 days when these payments were among the most common during the historical period? The same goes for invoices that Sparrer Sausage paid within 29 days. Indeed by adding just two days to either end of the range, the analysis would have captured 88% of the invoices that Sparrer Sausage paid during the historical period, a percentage much more in line with the Quebecor World analysis. Thus, a 16-to-28-day baseline appears not only excessively narrow but also arbitrary. Sparrer Sausage paid 9 of the 11 contested invoices within 14, 29, and 31 days of issuance. These payments fall either squarely within or just outside the 14-to-30-day range in which Sparrer Sausage paid the vast majority of invoices during the historical period. As such they are precisely the type of payments that the ordinary-course defense protects: recurrent transactions that generally adhere to the terms of a well-established commercial relationship. Sparrer Sausage paid the other 2 invoices 37 and 38 days after they were issued, which is substantially outside the 14-to-30-day baseline. We conclude that Jason’s Foods’ preference liability is limited to these payments, which total $60,679.00.”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Chicago Regional Council of Carpenters Pension Fund, et al v. Schal Bovis, Inc.

Case No.: 14-3413, 14-3336

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

Focus: ERISA – Fringe Benefit Payments

Respondent not liable for contributions for work performed due to single employer status of Canac with another entity and because of limiting provisions of Agreement.

“The Funds attempted to counter this evidence by presenting thirteen letters of assignment from three contractors which purportedly assigned the work of installing stainless steel kitchen equipment to the Union. The Funds’ submission is insufficient to counter Schal Bovis’s evidence for a number of reasons. First, it is debatable whether the affiant through whom the letters were introduced based his statements on personal knowledge as required by Fed. R. Civ. P. 56(c)(4). Second, none of the thirteen letters assigned the work of installing stainless steel kitchen equipment. One of the letters, from 1994, assigned the work of installing “counter tops/shelving/kitchen equipment,” but it does not state whether the work involved stainless steel equipment. Dist. Doc. 29 at 60. The remaining letters, which were dated 2010 or undated, either assigned only the loading and unloading of stainless steel kitchen equipment or the installation of “owner supplied equipment and fixtures.” Id. at 48–61. Finally, it does not matter whether the Union has been assigned the installation of stainless steel kitchen equipment in the past or is assigned such work presently. It does not even matter whether the work is exclusively the work of the Sheet Metal Workers, which the Union disputes. What matters is whether it is the existing practice of the Sheet Metal Workers to install stainless steel kitchen equipment. It is undisputed that the work is the existing practice of the Sheet Metal Workers. Consequently, the limiting provision of Section 1.1 of the Agreement prevents the Funds from demanding contributions for the work in the Edward Don claim”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Christopher Saunders and Rashid Bounds

Case No.: 13-3863, 13-3910

Officials: EASTERBROOK, MANION, and WILLIAMS, Circuit Judges

Focus: Court Error – Sentencing

Court failure to disclose basis of expert’s opinion was harmless error.

“While the defendants analogize this case to Claybrooks, where we reversed the district court’s drug quantity finding, Claybrooks is distinguishable. In Claybrooks, the district court rejected the methodology used in the Presentence Investigation Report to arrive at a drug finding, but did not indicate another basis for arriving at its number. Id. at 707. Here, while the court was initially skeptical about the government’s ratio, it was presented with additional argument as to why the ratio was accurate and ultimately accepted the ratio as reliable. The district court did not calculate 3.69 kilograms because it was “split[ting] the difference” between the government’s theory and the jury’s verdict, or selecting a number that was in the middle simply for the sake of compromise. Cf. Claybrooks, 729 F.3d at 707; United States v. Dean, 574 F.3d 836, 845 (7th Cir. 2009). Instead, it based its calculation on the proposed ratio and the actual number of recovered Dormin bottles. Its responses provide enough for us to discern the reliable evidence that it used to make its calculation and we will not reverse under these circumstances. ”

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mark Anthony Darland

Case No.: 2015AP464-CR; 2015AP465-CR

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

Focus: Sentence Modification

Mark Darland appeals an order denying his postconviction motion for sentence modification. Darland sought an eighteen-month reduction in the first of his two consecutive terms of initial confinement based on the existence of a new sentencing factor. The new factor, according to Darland, is that, given the consecutive nature of his sentences on the two drug related offenses, he could never attain the minimum custody classification required by the Department of Corrections (DOC) to take advantage of the risk reduction sentence (RRS) program while serving his first sentence. We affirm because Darland’s inability to complete the RRS program during his first sentence was not highly relevant to the circuit court’s sentencing decision and thus does not constitute a new factor warranting sentence modification.

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WI Court of Appeals – District III

Case Name: 2015AP889-CR; 2015AP890-CR; 2015AP891-CR; 2015AP892-CR

Case No.: State of Wisconsin v. Lindsay R. Holstrom

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

Focus: Sentencing

Lindsay Holstrom appeals a judgment of conviction and an order denying her motion for postconviction relief. Holstrom argues her sentence was unduly harsh and excessive. She also argues her sentences should run concurrently. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert Lavern Cameron

Case No.: 2015AP1088-CR

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

Focus: Court Error – Daubert

Robert Lavern Cameron appeals a judgment of conviction, following a jury trial, of armed robbery, first-degree intentional homicide, attempted first-degree intentional homicide, bail jumping, and possession of a firearm by a felon. Cameron also appeals the order denying his postconviction motion for a new trial. On appeal, Cameron argues that: (1) the trial court erred when it failed to hold a Daubert hearing, sua sponte, before allowing an intelligence analyst to give expert testimony about cell phone mapping; (2) the State’s closing argument constituted plain error because “the prosecutor vouched for the credibility of a key state’s witness”; (3) trial counsel was ineffective; and (4) the real controversy was not fully tried. (Capitalization omitted.) We affirm.

WI Court of Appeals – District III

Case Name: Andrew Hiser et al v. West Bend Mutual Insurance Company

Case No.: 2015AP1329

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

Focus: Insurance – Negligence

Andrew Hiser and Secura Insurance (collectively “Hiser”) appeal a summary judgment dismissing their negligence action against Robert and Janis Beatty; their business, Miracle on Main, LLC; and their insurer, West Bend Mutual Insurance Company, (collectively “the Beattys”). Hiser argues: (1) the circuit court improperly applied safe place statute principles to his common law negligence action, specifically the requirement that the plaintiff must show the defendant’s actual or constructive notice of a defective condition; (2) issues of material fact preclude summary judgment; and (3) Hiser was not required to support his claim with expert testimony. Because we agree with each of Hiser’s arguments, we reverse the judgment and remand the cause for further proceedings

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WI Court of Appeals – District I

Case Name: Michael Penkalski v. David Svoboda et al

Case No.: 2015AP1475

Officials: Kessler, Brennan and Brash, JJ.

Focus: Personal Jurisdiction

David Svoboda appeals from a judgment awarding damages to Michael Penkalski for injuries Penkalski sustained after falling down at Svoboda’s bar, The Last Stop. Svoboda presents a single issue on appeal: whether the publication of the summons and complaint in The Daily Reporter newspaper was sufficient to confer personal jurisdiction over Svoboda. See WIS. STAT. § 985.02(1) (2013-14). We agree with the trial court that The Daily Reporter was a newspaper “likely to give notice” to Svoboda. See id. Therefore, we reject Svoboda’s challenge to personal jurisdiction and affirm the judgment.

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WI Court of Appeals – District I

Case Name: Jackson Simon v. Olivia Wilson

Case No.: 2015AP1769

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

Focus: Custody & Placement

We are satisfied that the trial court properly exercised its discretion when it entered an order granting joint custody and primary placement to Simon because the trial court never found that there was “a pattern or serious incident of interspousal battery” which would have triggered the rebuttable presumption. We also conclude the trial court properly exercised its discretion in prohibiting Wilson from consuming alcohol while she has placement of the children. However, we agree with Wilson that nothing in the record supports the trial court’s order prohibiting her from possessing firearms or weapons. Consequently, we affirm the trial court’s order concerning joint custody and placement and the order prohibiting consuming alcohol during placement, but we reverse the prohibition that she cannot possess firearms or weapons.

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WI Court of Appeals – District II

Case Name: Kevin A. Harry v. C&C Administration, LLC

Case No.: 2015AP2054

Officials: NEUBAUER, C.J.

Focus: Lease Agreement – Eviction

This is an appeal from an order evicting C & C Administration, LLC, from a commercial property it leased. The action was commenced by Kevin A. Harry, who took over the lease after having allegedly acquired the property from the original landlord, Better Living Property Management, LLC. The trial court concluded that the lease was void because it included a provision giving C & C the right to renew the lease every two years in perpetuity. C & C claims that the trial court’s interpretation of the lease was erroneous. In addition, for the first time on appeal, C & C asserts that Harry lacked standing to commence this action because Signature Properties, LLC, of which Harry is purportedly the sole member, purchased the property from Better Living. Harry concedes this fact, but argues that the defense of standing was waived. We affirm

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WI Court of Appeals – District III

Case Name: Anunpama Wahal et al v. Stephanie J. Weiss, et al

Case No.: 2015AP1379

Officials: Higginbotham, Sherman, and Blanchard, JJ.

Focus: Personal Injury – Insurance

Anunpama Wahal appeals a judgment of the circuit court dismissing with prejudice Wahal’s personal injury action against Stephanie Weiss and State Farm Mutual Automobile Insurance Company. The court concluded that Wahal’s failure to timely serve the original summons and complaint on Weiss and State Farm constituted a fundamental defect that deprived the court of personal jurisdiction over the defendants. We agree, based on controlling case law, and accordingly affirm. We also grant the motion for costs and attorney’s fees based on a frivolous appeal

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WI Court of Appeals – District IV

Case Name: Timothy R. Boyle v. Shari A. Boyle

Case No.: 2015AP2144

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

Focus: Spousal Maintenance

Shari Boyle appeals an order granting Timothy Boyle’s motion to modify maintenance based on an approximate $69,000 reduction in his annual income. The order modified maintenance from $12,000 per month to $10,000 per month and continued to impute $50,000 in annual income to Shari. In spite of the undisputed drop in Timothy’s pay, Shari had sought at the modification hearing to have the circuit court keep maintenance at $12,000 per month or raise it to $14,000 per month. She argued that the value of Timothy’s employment benefits should be counted as income and that Shari’s earning capacity is actually zero. Shari argues on appeal that the order modifying maintenance failed to accomplish the support and fairness objectives of maintenance. We affirm the order

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Supreme Court Digests

Supreme Court

Case Name: Williams v. Pennsylvania

Case No.: 15-5040

Focus: Due Process violation

Denial of a recusal motion and subsequent judicial participation violated due process clause of 14^th amendment

The Court’s due process precedents do not set forth a specific test governing recusal when a judge had prior involvement in a case as a prosecutor; but the principles on which these precedents rest dic tate the rule that must control in the circumstances here: Under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case. The Court applies an objective standard that requires recusal when the likelihood of bias on the part of the judge “is too high to be constitutionally tolerable.” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 872. A constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case. See In re Murchison, 349 U. S. 133, 136–137. No attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision. As a result, a serious question arises as to whether a judge who has served as an advocate for the State in the very case the court is now asked to adjudicate would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. In these circumstances, neither the involvement of multiple actors in the case nor the passage of time relieves the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences his or her own earlier, critical decision may have set in motion.

Vacated and Remanded

Concurring:

Dissenting: ROBERTS, ALITO, THOMAS

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Supreme Court

Case Name: Dietz v. Bouldin

Case No.: 15-458

Focus: Court Power & Discretion

A federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury’s verdict.

“The inherent powers that district courts possess “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases,” Link v. Wabash R. Co., 370 U. S. 626, 630–631, have certain limits. The exercise of an inherent power must be a “reasonable response to the problems and needs” confronting the court’s fair administration of justice and cannot be contrary to any express grant of, or limitation on, the district court’s power contained in a rule or statute. Degen v. United States, 517 U. S. 820, 823–824. These two principles support the conclusion here. First, rescinding a discharge order and recalling the jury can be a reasonable response to correcting an error in the jury’s verdict in certain circumstances, and is similar in operation to a district court’s express power under Federal Rule of Civil Procedure 51(b)(3) to give the jury a curative instruction and order them to continue deliberating to correct an error in the verdict before discharge. Other inherent powers possessed by district courts, e.g., a district court’s inherent power to modify or rescind its orders before final judgment in a civil case, see Marconi Wireless Telegraph Co. of America v. United States, 320 U. S. 1, 47–48, or to manage its docket and courtroom with a view toward the efficient and expedient resolution of cases, see Landis v. North American Co., 299 U. S. 248, 254, also support this conclusion. Second, rescinding a discharge order to recall a jury does not violate any other rule or statute. No implicit limitation in Rule 51(b)(3) prohibits a court from rescinding its discharge order and reassembling the jury. Nor are such limits imposed by other rules dealing with postverdict remedies. See, e.g., Fed. Rules Civ. Proc. 50(b), 59(a)(1)(A). “

Affirmed

Concurring:

Dissenting: THOMAS, KENNEDY

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Supreme Court

Case Name: Puerto Rico v. Sanchez Valle

Case No.: 15-108

The double jeopardy clause bars Puerto Rico and the United States from successively prosecuting a single person for the same conduct under equivalent criminal laws

“Ordinarily, a person cannot be prosecuted twice for the same offense. But under the dual-sovereignty doctrine, the Double Jeopardy Clause does not bar successive prosecutions if they are brought by separate sovereigns. See, e.g., United States v. Lanza, 260 U. S. 377, 382. Yet “sovereignty” in this context does not bear its ordinary meaning. This Court does not examine the extent of control that one prosecuting entity wields over the other, the degree to which an entity exercises self-governance, or a government’s more particular ability to enact and enforce its own criminal laws. Rather, the test hinges on a single criterion: the “ultimate source” of the power undergirding the respective prosecutions. United States v. Wheeler, 435 U. S. 313, 320. If two entities derive their power to punish from independent sources, then they may bring successive prosecutions. Conversely, if those entities draw their power from the same ultimate source, then they may not. Under that approach, the States are separate sovereigns from the Federal Government and from one another. Because States rely on “authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment,” state prosecutions have their roots in an “inherent sovereignty” unconnected to the U. S. Congress. Heath v. Alabama, 474 U. S. 82, 89. For similar reasons, Indian tribes also count as separate sovereigns. A tribe’s power to punish pre-existed the Union, and so a tribal prosecution, like a State’s, is “attributable in no way to any delegation . . . of federal authority.” Wheeler, 435 U. S., at 328. Conversely, a municipality cannot count as a sovereign distinct from a State, because it receives its power, in the first instance, from the State. See, e.g., Waller v. Florida, 397 U. S. 387, 395. And most pertinent here, this Court concluded in the early 20th century that U. S. territories—including an earlier incarnation of Puerto Rico itself—are not sovereigns distinct from the United States. Grafton v. United States, 206 U. S. 333. The Court reasoned that “the territorial and federal laws [were] creations emanating from the same sovereignty,” Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U. S. 253, 264, and so federal and territorial prosecutors do not derive their powers from independent sources of authority.”

Affirmed

Concurring: GINSBURG, THOMAS,

Dissenting: BREYER, SOTOMAYOR

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