Weekly Case Digests — Sep. 19 – Sept. 23, 2016

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Charles Tankson

Case No.: 14-3787

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

Focus: Sentencing

Following an extensive sting operation by federal law enforcement of a drug distribution ring in Chicago, Charles Tankson was indicted on three counts of distributing 100 grams of heroin and one count of distributing a detectable amount of heroin, both in violation of 21 U.S.C. § 841(a)(1). He entered a written plea declaration without a plea agreement. At sentencing, the Government introduced Mr. Tankson’s post‐arrest statement to authorities in order to establish significant additional drug quantities as relevant conduct. The district court credited the statement and, on the basis of the newly established drug quantities, both increased his offense level under the quantity table and determined that he was subject to the career offender guideline. The court calculated a guidelines range of 360 months to life but sentenced him below the applicable guidelines range to 228 months’ imprisonment. Mr. Tankson now appeals his sentence. He challenges the district court’s reliance on his post‐arrest statement in determining his relevant conduct. He also contends that the court, in calculating his criminal history category, erred in including a 1995 conviction. We conclude that the district court was entitled to credit his statement and to consider the 1995 conviction. Accordingly, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dan Davies v. Karlen Benbenek, et al

Case No.: 14-2558

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

Focus: Admission of Evidence

Plaintiff Dan Davies sued Chicago police officer Karlen Benbenek for using excessive force when responding to a domestic disturbance at Davies’ home in the summer of 2010. A trial was held and the jury found for Officer Benbenek. On appeal Davies challenges several of the district court’s evidentiary rulings, but his arguments are without merit. Because the evidence challenged by Davies was used for a permissible purpose and was not unduly prejudicial, we affirm the district court’s entry of judgment for Officer Benbenek.

Affirmed

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7^th Circuit Court of Appeals

Case Name: William Hinesley, III v. Wendy Knight

Case No.: 15-2122

Officials: EASTERBROOK,MANION, and ROVNER, Circuit Judges

Focus: Ineffective Assistance of Counsel

Following a bench trial in Indiana state court, William Hinesley, III, was convicted of molesting his 13 year‐old former foster daughter, V.V. After exhausting his state court remedies, Hinesley petitioned for a writ of habeas corpus, contending that his trial counsel deprived him of effective representation when he allowed the inculpatory out‐of‐court statements of the two principal witnesses against him into evidence without objection and likewise posed no objection to the admission of two statements in which wit‐ nesses vouched for V.V.’s credibility. Hinesley also raised an argument of cumulative ineffectiveness based on these and other purported errors on the part of his lawyer. The district court denied his petition. Hinesley v. Knight, No. 1:14‐cv‐1097‐ JMS‐TAB, 2015 WL 1969643 (S.D. Ind. Apr. 29, 2015). We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Andre Willims

Case No.: 16-1913

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

Focus: Conditions of supervised release

Appellant makes request for amendment to conditions of supervised release.

“If the district judge had proposed to defer decision until Williams was actually out of prison, we would be inclined to think that a mistake. Williams is entitled to know, before he leaves prison, what terms and conditions govern his supervised release. We would be reluctant to allow a judge to deem premature a request in the final year or two of imprisonment. But treating a request 14 years in advance as premature, and requiring the prisoner to make all potential arguments at one time in the year or so before release, is a sound exercise of discretion”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Christopher A. Trentadue v. Julie Gay

Case No.: 15-3142

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

Focus: Court Error – Bankruptcy

Plaintiff and debtor Christopher A. Trentadue and his wife divorced in 2007, and as part of that judgment, Trentadue and his then ex‐wife received joint le‐ gal custody of the couple’s six children. This arrangement proved unworkable and resulted in protracted litigation over custody and child support. The Wisconsin state court overseeing the litigation determined that Trentadue’s conduct resulted in excessive trial time to resolve the case and awarded Trentadue’s ex‐wife $25,000 in attorney’s fees for “overtrial.” The state court directed Trentadue to make the payment directly to his ex‐wife’s attorney, Defendant Julie M. Gay.   Trentadue never paid Gay. Instead, he filed a chapter 13 bankruptcy petition. Gay countered by filing a $25,000 claim for the unpaid overtrial award and classified it as a non‐ dischargeable, domestic support obligation entitled to priori‐ ty. Trentadue objected that the obligation was imposed as a punishment and therefore could not be a domestic support obligation, but the bankruptcy court overruled his objection. The district court agreed with the bankruptcy court after Trentadue challenged its ruling. We find no error and affirm the decision of the district court.

Affirm

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7^th Circuit Court of Appeals

Case Name: Gloria Jean Sykes v. Cook County circuit court Probate Division, et al

Case No.: 15-1781

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

Focus: Probate Hearing – ADA Violation

Gloria Jean Sykes went to her mother’s probate proceeding to present a motion and brought her service dog, Shaggy. Instead of letting her present her motion, the judge asked her a series of questions about Shaggy, struck her motion, and entered an order barring Shaggy from the courtroom. Gloria argues that she should be able to bring a lawsuit in federal court for denial of reasonable accommodations under the Americans with Disabilities Act. But because the source of her injury is a state court judgment, we lack subject matter jurisdiction to hear her case.

Affirm

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7^th Circuit Court of Appeals

Case Name: Elliot Carlson, et al v. United States of America

Case No.: 15-2972

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

Focus: Grand Jury Materials – Federal Criminal Procedure

Elliot Carlson, along with a number of scholarly, journalistic, and historic organizations, seeks access to grand-jury materials sealed decades ago. The materials concern an investigation into the Chicago Tribune in 1942 for a story it published revealing that the U.S. military had cracked Japanese codes. The government concedes that there are no interests favoring continued secrecy. It nonetheless resists turning over the materials, on the sweeping ground that Rule 6(e) of the Federal Rules of Criminal Procedure entirely eliminates the district court’s common-law supervisory authority over the grand jury. It takes the position that no one (as far as we can tell) has the power to release these documents except for one of the reasons enumerated in Rule 6(e)(3)(E). If that is so, then Carlson and his allies must fail, because his request is outside the scope of Rule 6(e). We find nothing in the text of Rule 6(e) (or the criminal rules as a whole) that supports the government’s exclusivity theory, and we find much to indicate that it is wrong. In fact, the Rules and their history imply the opposite, which is why every federal court to consider the issue has adopted Carlson’s view that a district court’s limited inherent power to supervise a grand jury includes the power to unseal grand-jury materials when appropriate. Because the parties agree that this is an appropriate instance (if, in fact, the district court has this power) we affirm the order of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Eymarde Lawler v. Peoria School District No. 150

Case No.: 15-2976

Officials: WOOD, Chief Judge, and BAUER and KANNE, Circuit Judges

Focus: Retaliatory Termination

Eymarde Lawler was diagnosed with posttraumatic stress disorder (“PTSD”) at least five years before School District 150 in Peoria, Illinois, hired her to teach students with learning disabilities. For the next nine years Lawler performed that job satisfactorily and was given tenure, and not until 2010, when her psychiatrist concluded that Lawler had suffered a relapse of her PTSD, did District 150 learn about her impairment. After that Lawler was transferred to a different school to teach children with not only learning disabilities but also severe emotional and behavioral disorders. Both Lawler and her supervisor at the new school thought she was ill-prepared for this new role, but District 150 did not relent. After a year in the new position, Lawler was rated as “satisfactory,” but then at the start of her second year she was injured by a disruptive student, sending her to the hospital with a concussion and neck injury. Her psychiatrist notified District 150 that this episode and other recent incidents had “retriggered” Lawler’s PTSD and that she needed to be transferred to a different teaching environment. District 150 did not transfer Lawler but instead accelerated her next performance appraisal, rated her as unsatisfactory, and fired her as part of an announced reduction in force that ended with all but “unsatisfactory” teachers being rehired. Lawler then filed this action under the Rehabilitation Act of 1973, see 29 U.S.C. § 794, claiming that District 150 not only failed to accommodate her PTSD but also fired her in retaliation for requesting an accommodation. The district court granted summary judgment for the school district, and in this appeal the principal issue is whether a jury reasonably could find, as Lawler says, that the school district failed to accommodate her PTSD. We conclude that a jury could find for Lawler, and thus we vacate the judgment and remand the case for trial.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Debora Ghiselli v. Carolyn W. Colvin

Case No.: 14-2380

Officials: ROVNER and SYKES, Circuit Judges, and WOOD, District Judge.

Focus: Social Security Benefits – Court Error

Debora Ghiselli applied for disability insurance benefits under the Social Security Act, claiming that she was unable to work due to a combination of health problems that included degenerative disc disease, asthma, and obesity. After her initial application and her request for reconsideration were denied, an administrative law judge (“ALJ”) found that she was not disabled despite her impairments. The district court, reviewing the ALJ’s decision pursuant to 42 U.S.C. § 405(g), held that the decision was supported by substantial evidence and thus affirmed it. Ghiselli has now appealed that ruling to this Court, arguing that the ALJ erred by crediting the opinions of state agency medical consultants over that of her treating physician, by improperly determining without adequate explanation that she had the residual functional capacity to perform a range of light work with limitations, and by finding that she lacked credibility based on certain purportedly inconsistent statements.   We agree that the ALJ erred in his consideration of Ghiselli’s credibility and therefore her case must be remanded for further proceedings

Vacated and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Gary Abdullah Salaam

Case No.: 2014AP2666-CR; 2014AP2667-CR

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

Focus: Reckless Endangerment – Witness Intimidation

Gary Abdullah Salaam appeals the judgments of conviction, following a jury trial, of one count of recklessly endangering safety as an act of domestic abuse, one count of being a felon in possession of a firearm, and three counts of witness intimidation. We affirm the judgment of conviction on the charges of recklessly endangering safety and felon in possession of a firearm; however, we reverse the judgment of conviction on the witness intimidation charges. Accordingly, we dismiss Salaam’s conviction as to three counts of witness intimidation.

WI Court of Appeals – District III

Case Name: Baldwin Area Medical Center v. Mitchell Bengston, et al

Case No.: 205AP1413

Officials: Seidl, J.

Focus: Damages

Mitchell and Wanda Bengtson, pro se, appeal a small claim summary judgment for money damages entered against them in favor of Baldwin Area Medical Center (BAMC). On appeal, the Bengtsons argue the judgment is void. We affirm. Furthermore, we conclude the Bengtsons’ appeal is frivolous pursuant to WIS. STAT. RULE 809.25(3) and remand this matter to the circuit court to determine BAMC’s costs and attorney fees in defending against this appeal and to enter an order accordingly.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Timothy A. Giese

Case No.: 2015AP1838-CR

Officials: Seidl, J.

Focus: OWI – Subject Matter Jurisdiction

Timothy Giese appeals the circuit court’s order denying a motion to void his 2009 conviction for second-offense operating a motor vehicle while intoxicated (OWI). Giese challenges the circuit court’s subject matter jurisdiction to enter a judgment of conviction, as the State concedes he was improperly charged with a criminal second-offense OWI rather than a civil first offense. Based upon the supreme court’s recent decision in City of Eau Claire v. Booth Britton, 2016 WI 65, ___ Wis. 2d ___, ___ N.W.2d ___, we conclude the circuit court properly exercised subject matter jurisdiction, despite the State’s failure to properly charge the OWI penalty enhancer, and affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Adam W. Vice

Case No.: 2015AP2558-CR

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

Focus: Motion to Suppress – Court Error

The State appeals an order granting Adam Vice’s motion to suppress his confession to sexually assaulting a four-year-old girl. To the extent the circuit court concluded suppression was automatically required because detectives mentioned a failed polygraph examination when questioning Vice, that conclusion was erroneous and requires reversal. Alternatively, to the extent the court determined Vice’s confession was involuntary under the totality of the circumstances, the court did not make sufficient factual findings to allow us to review that conclusion. We therefore reverse the order granting Vice’s suppression motion and remand this matter to the circuit court for additional factfinding regarding the voluntariness of Vice’s confession.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Lory F. Kerk

Case No.: 2015AP2608-CR

Officials: Seidl, J.

Focus: Abuse of Discretion – Expert Witness

Lory Kerk appeals a judgment of conviction for operating a motor vehicle while intoxicated (OWI), third-offense. Kerk argues that the circuit court erroneously exercised its discretion when it admitted the testimony of the State’s expert toxicology witness under WIS. STAT. § 907.02. We disagree and therefore affirm the judgment of conviction.

WI Court of Appeals – District II

Case Name: Kevin C. Burney v. Jodiann L. Steiner

Case No.: 2015AP1170; 2015AP1821

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

Focus: Division of Property – Divorce

In these consolidated cases, Jodiann Steiner, f/k/a Jodiann Burney, appeals the property division portion of the amended judgment granting a divorce to her and her former husband, Kevin Burney, and the order denying her motion for reconsideration or to reopen the judgment. We affirm

WI Court of Appeals – District II

Case Name: Nicole A. Gomez v. David Leszcynski

Case No.: 2016AP47

Officials: Neubauer, C.J.

Focus: Contempt – Attorney Fees

David Leszczynski appeals from an order dated December 21, 2015, finding him in contempt of court for failing to purge himself of certain conditions imposed by a prior order, sentencing him to ninety days in jail unless he paid $81,576 in arrears for Section 71 payments and child support, and awarding his former wife, Nicole A. Gomez, attorney fees. After thirty days, the circuit court released Leszczynski from jail. We conclude that the circuit court properly found that Leszczynski was in contempt and awarded Gomez attorney fees, and that he was not denied the opportunity to present evidence. Thus, we affirm and remand to the circuit court for further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Steven W. Heath

Case No.: 2014AP2466-CR

Officials: Higginbotham, J.

Focus: Court Error – Motion to Suppress

Steven Heath appeals a judgment of conviction for operating a motor vehicle while intoxicated (“OWI”), as a third offense. Heath argues that the circuit court erred when it denied his motion to suppress the blood draw evidence. Specifically, he argues that his blood test results should have been suppressed because the paramedic who conducted the blood draw was not a “person acting under the direction of a physician” as required by WIS. STAT. § 343.305(5)(b) and because the method and manner of the blood draw was not constitutionally reasonable. Heath also argues that he was arrested without probable cause. I conclude that the paramedic was acting under the direction of a physician at the time she withdrew Heath’s blood, the method and manner of the blood was draw was reasonable, and there was probable cause to arrest Heath for OWI under the circumstances existing at the time he was arrested. Accordingly, I affirm.

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WI Court of Appeals – District IV

Case Name: Barbara Nahmens v. John Zimmerman

Case No.: 2015AP2422

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

Focus: Court Error – Expert Testimony

Barbara Nahmens appeals a circuit court order that dismissed Nahmens’s professional negligence action against John Zimmermann on summary judgment. The circuit court granted summary judgment on the ground that Nahmens failed to name an expert witness to establish the professional standard of care in this case. Nahmens contends that this was error. We conclude that expert testimony was required to establish the professional standard of care to support Nahmens’s negligence action. Because Nahmens failed to name an expert witness at the summary judgment stage, the circuit court properly granted summary judgment to Zimmermann. Accordingly, we affirm.

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