Weekly Case Digests — Dec. 19-23, 2016

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: 15-3547

Case No.: United States of America v. Shaft Jones

Officials: 15-3547

Focus: Sentencing

A federal jury found the defendant guilty of conspiring to possess, with intent to distribute, five or more kilograms of cocaine, and of related crimes including carrying a gun in connection with drug trafficking. The district judge sentenced him to 270 months in prison.

“. . . Jones challenges his sentence, arguing that he wasn’t responsible for more than 50 kilograms of cocaine. But the district judge had two good reasons to think he was: calculating backward from the money the government seized, and relying on testimony that Jones had purchased 90 kilograms through one of the brokers. The government 6 No. 15‐3547    had the defendant cold, and the district judge was on solid footing in saying that a sentence above the guideline range would be reasonable given the magnitude of Jones’s criminal activity, though ultimately the judge sentenced Jones within the guidelines range.”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. John T. Burns, III

Case No.: 15-2824

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

Focus: Forfeiture Order – Sentencing

John Burns made fraudulent misrepresentations when soliciting investments for his employer, USA Retirement Services (“USARMS”). Burns told investors that he had experience managing investments and that he had personally invested in USARMS’s promissory notes. His statements were false. Moreover, without Burns’s knowledge, the investment opportunity was fraudulent. USARMS’s owners were operating a Ponzi scheme. With USARMS’s owners out of the picture for various reasons, the government filed a superseding indictment against Burns. The government alleged that Burns committed fraud by making material misrepresentations to investors. A jury convicted Burns on two counts of wire fraud and three counts of mail fraud. Despite not alleging that Burns knew of or participated in the Ponzi scheme, the government sought to hold Burns accountable for the entire $3.3 million the investors that he solicited lost as a result of the Ponzi scheme. The district court enhanced Burns’s sentence, ordered restitution, and ordered forfeiture based on the victims’ $3.3 million total loss. On appeal, Burns argues that there was insufficient evidence to convict him of making material misrepresentations. Burns also challenges the sentencing enhancement and the restitution order on grounds that the district court did not determine that he proximately caused the victims’ loss. Finally, Burns argues that the forfeiture order was improper because it was based on the victims’ loss and not on his gain. Because there was sufficient evidence to convict, we affirm Burns’s conviction. But because the district court erred in calculating the sentence, restitution order, and forfeiture order, we remand for resentencing.

Vacated and remanded for resentencing

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Egan Marine Corporation et al

Case No.: 15-2477; 15-2485

Officials: EASTERBROOK and ROVNER, Circuit Judges, and SHADID, District Judge

Focus: Issue Preclusion

Barge EMC‐423 exploded on January 19, 2005, while under way between Joliet and Chicago with a cargo of clarified slurry oil. The blast threw deck‐ hand Alex Oliva into the water; he did not survive. Contending that Dennis Egan, master of the tug Lisa E that had been pushing the barge, had told Oliva to warm a pump using a propane torch, the United States obtained an indictment charging Egan and the tug’s owner (Egan Marine Corp.) with violating 18 U.S.C. §1115, which penalizes maritime negligence that results in death, plus other statutes that penalize the negligent discharge of oil into navigable waters. After a bench trial, Judge Zagel found that the prosecution had established, beyond a reasonable doubt, that Egan gave the order to Oliva, that the torch caused the explosion, that Oliva died as a result, and that the barge released oil as a further result. That such an order, if given, was negligence (or worse) no one doubted; open flames on oil carriers are forbidden by Coast Guard regulations and normal prudence. The court sentenced Egan to six months’ imprisonment, a year’s supervised release, and restitution of almost $6.75 mil‐ lion. Egan Marine was placed on probation for three years and ordered to pay the same restitution, for which it and Egan are jointly and severally liable. The criminal prosecution was the second trial of these al‐ legations. Two years before the grand jury returned its indictment, the United States had filed a civil suit against Egan Marine seeking damages on the same theory: that Egan directed Oliva to warm the pump using a torch, whose flame caused an explosion, a death, and an oil spill. That case, too, went to a bench trial. And Judge Leinenweber, who heard the evidence, determined that the United States had not proved its claim. 2011 U.S. Dist. LEXIS 138087 (N.D. Ill. Oct. 13, 2011) at *11 (“the Government did not prove, by a pre‐ ponderance of the evidence, that Alex Oliva was using a propane torch on the cargo pump of the EMC 423 at the time of the incident”). The United States did not appeal from that adverse decision but instead pressed forward with this criminal prosecution. Egan and Egan Marine sought the benefit of issue preclusion (collateral estoppel), arguing that the United States should not be allowed to contend that they are guilty be‐ yond a reasonable doubt after Judge Leinenweber found that the proof did not show culpability even by a preponderance of the evidence. But Judge Zagel rejected this contention.

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Jason Davila v. United States of America

Case No.: 16-2137

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

Focus: Sentencing – HobbsAct

Jason Davila pleaded guilty to two criminal charges: that he conspired to commit robbery in violation of the Hobbs Act, 18 U.S.C. §1951, and that he possessed a firearm in connection with both the planned robbery and a drug trafficking crime, in violation of 18 U.S.C. §924(c)(1)(A). The indictment charged the drug offense as a separate substantive count, which was dismissed as part of a plea bargain. The judge sentenced Davila to consecutive sentences of 6 months’ imprisonment under the Hobbs Act and 60 months’ imprisonment under §924(c). He did not appeal. But after the Supreme Court held in Johnson v. United States, 135 S. Ct. 2551 (2015), that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e), is unconstitutionally vague, Davila filed this collateral attack under 28 U.S.C. §2255. He contends that conspiracy to commit a robbery could be deemed a crime of violence only under the residual clause in §924(c)(3)(B) and that this clause should be held unconstitutional under Johnson’s reasoning. This court recently reached that conclusion about the validity of §924(c)(3)(B). See United States v. Cardena, No. 12‐3680 (7th Cir. Nov. 18, 2016), slip op. 52–54. Anticipating the possibility of that outcome—and without deciding whether a Hobbs Act conspiracy is a crime of violence under the elements clause in §924(c)(3)(A)—the district judge held that Davila’s conviction is valid no matter how conspiracy to rob is classified. The indictment charged Davila with possessing the gun in connection with both that planned robbery and a completed drug deal, and the latter is a “drug trafficking crime” un‐ der §924(c)(2). The district court accordingly declined to disturb the conviction or sentence.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Alexander Kluball

Case No.: 16-2087

Officials: EASTERBROOK and WILLIAMS, Circuit Judges, and FEINERMAN, District Judge.

Focus: Mental Health – Sentencing

Alexander Kluball was sentenced to 120 months’ imprisonment for transporting a 17‐ year‐old girl across state lines with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2421. The only issue on appeal is whether the district court violated Kluball’s due process right to be sentenced based on accurate information by finding that his mental health history suggested that further treatment would be unlikely to have a “lasting impact” on his ability to refrain from further criminal conduct. There was no due process violation, and so the district court’s judgment is affirmed.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Jeremy Meyers v. Nicolet Restaurant of De Pere, LLC

Case No.: 16-2075

Officials: BAUER, MANION, and HAMILTON, Circuit Judges

Focus: Class Certification Denial – Standing

Jeremy Meyers appeals the district court’s denial of class certification in this case brought under the Fair and Accurate Credit Transactions Act (FACTA). This is Meyers’ second putative class action under the FACTA to reach this court in a matter of months. In the prior appeal, we held that sovereign immunity barred Meyers’ claim against the Oneida Tribe of Wisconsin. This time, we conclude that Meyers lacks Article III standing. Therefore, we vacate the judgment of the district court and remand the case with instructions to dismiss for lack of jurisdiction.

Vacated and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Lee Ann Prather v. Sun Life and Health Insurance Company

Case No.: 16-1861

Officials: WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges

Focus: Insurance Coverage – Causation

The plaintiff’s decedent, Jeremy Prather, was employed by a company that had obtained a Group Insurance Policy from Sun Life which provided accidental death and dismemberment coverage for the company’s employees, in the amount of $92,000 for Prather. The policy limited coverage to “bodily injuries … that result directly from an accident and independently of all other causes.”

The clause we’ve italicized is the focus of this appeal from the district court, which granted summary judgment for Sun Life, which had invoked the clause to deny the payment of death and dismemberment coverage to Prather’s survivor on the ground that his death had not been the exclusive result of an accident—it had also been the result of “complications from surgical treatment.” Prather’s widow brought this suit “to recover benefits due to [her]” under the plan. 29 U.S.C. § 1132(a)(1). On July 16, 2013, Prather, age 31, had torn his left Achilles tendon playing basketball. Three days later he met with an orthopedic surgeon to discuss treatment, and of the options offered he chose surgery. He was scheduled to be operated on three days later, July 22. On July 21 he called the surgeon’s office complaining of a swelling in the lower part of his left leg, and that an area of the left calf was both sensitive and warm to the touch. The surgeon told him to elevate the leg. The surgery next day to repair his torn Achilles tendon was uneventful and he was discharged from the hospital the same day. He returned to work and was reported as doing well in a follow-up visit to his surgeon on August 2. But four days later he collapsed at work, went into cardiopulmonary arrest, and died the same day as a result of a deep vein thrombosis (blood clot) in the injured leg that had broken loose and traveled through the bloodstream to a lung, thus becoming a blood clot in the lung—that is, a pulmonary embolism—which caused cardiac arrest and sudden death.

Reversed

Full Text

7^th Circuit Court of Appeals

Case Name: Jakeffe Holt v. United States of America

Case No.: 16-1793

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

Focus: Collateral Attack – Sentencing

About a decade ago, Jakeffe Holt was convicted of possessing a firearm despite prior convictions that barred gun ownership. 18 U.S.C. §922(g)(1). Several of those convictions led the district court to deem him an armed career criminal, 18 U.S.C. §924(e), and impose a 200-month sentence. Johnson v. United States, 135 S. Ct. 2551 (2015), holds that the residual clause in §924(e)(2)(B)(ii) is unconstitutionally vague. Holt then launched a collateral attack on his sentence under 28 U.S.C. §2255. Section 924(e) applies to persons with three prior violent felonies or serious drug offenses. The district court had counted a burglary conviction toward this number. Holt argued that this was a mistake. The district court rejected this argument and denied Holt’s petition. 2016 U.S. Dist. LEXIS 48063 (N.D. Ill. Apr. 11, 2016). While Holt’s appeal was pending we held that the version of the Illinois burglary statute under which he had been convicted is indeed not a “violent felony” because it does not satisfy the definition of “burglary” used in Mathis v. United States, 136 S. Ct. 2243 (2016), for indivisible statutes. See United States v. Haney, 840 F.3d 472 (7th Cir. 2016).

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: James Brunson et al v. Scott Murray, et al

Case No.: 14-2877

Officials: EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges

Focus: False Arrest – Equal Protection

Plaintiff James Brunson owns a package liquor store in Bridgeport, Illinois. He asserts that city officials violated his constitutional rights by refusing to renew his liquor license and orchestrating a campaign of harassment and outright violence. Brunson has offered evidence that after he purchased the business, he was subjected to continued harassment by the defendants, including Max Schauf, the town’s mayor and local liquor commissioner. When Mayor Schauf refused to consider Brunson’s application for a routine renewal of his liquor license, Brunson was forced to close his business and to alert state authorities to reopen. A few weeks later, while keeping watch over his store late at night after vandalism incidents, Brunson was attacked by one of Schauf’s associates. The two men fought until Brunson was able to pin down the attacker and call police. Two weeks later, Brunson was the one arrested for felony aggravated battery

Brunson brought this suit under 42 U.S.C. § 1983 alleging federal claims of false arrest, denial of equal protection, and denial of due process, as well as several state-law claims. The district court granted summary judgment on Brunson’s federal claims and dismissed the state-law claims without prejudice. We affirm in part and reverse in part. We affirm summary judgment for prosecutor Lisa Wade, who is protected by absolute prosecutorial immunity for her role in this case. We also affirm summary judgment for the City of Bridgeport and for all remaining defendants as to Brunson’s false arrest claim. But we reverse summary judgment on Brunson’s class-of-one equal protection claim. We also reverse summary judgment for Schauf and hold he is not entitled to absolute immunity on Brunson’s due process claim for Schauf’s refusal to act on the liquor license renewal.

Affirmed in part

Reversed and remanded in part

Full Text

7^th Circuit Court of Appeals

Case Name: Aventine Renewable Energy, Inc., v. Glacial Lakes Energy, LLC, et al

Case No.: 16-1690; 16-1692

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

Focus: Bankruptcy – Breach of Contract

The plaintiff, Aventine, is a distributor of ethanol, a common additive to gasoline. The two defendants, affiliated companies that for the sake of simplicity we’ll pretend are one and call Glacial, manufacture and sell ethanol. The disputants are of diverse citizenship, and have agreed that the law applicable to their dispute is that of New York State. Until 2009, Aventine bought ethanol from Glacial and distributed it, but in January of that year the parties executed “termination agreements.” The agreements required Aventine to pay Glacial $898,000 (we round to the nearest $1000) for ethanol that Aventine had received from Glacial before the termination date specified in the agreements but had not yet paid for (the parties call the payments that Aventine was required to make “true‐up payments”) and required Glacial to pay Aventine $1,250,000 for commissions that Glacial would have had to pay Aventine for marketing the ethanol that Aventine had agreed to buy from it. In addition Glacial agreed to assume Aventine’s leases from Union Tank Car Company of 473 railcars used for transporting ethanol; trembling on the brim of bankruptcy, Aventine didn’t need railcars any more. Glacial used the railcars between February 23 and April 7 (Aventine declared bankruptcy on April 7) without reim‐ bursing Aventine for the lease payments that Aventine owed Union Tank, a sum exceeding $500,000, which Aventine could not afford to pay. When Aventine declared bankrupt‐ cy, Glacial owed it some $1,600,000 for marketing commis‐ sions and railcar leases while Aventine owed Glacial some $900,000 for the ethanol it had bought from Glacial before the termination date specified in the termination agree‐ ments. Netting the two debts would have resulted in Gla‐ cial’s paying Aventine $700,000. But because, or at least os‐ tensibly because, Aventine either couldn’t or wouldn’t pay Glacial any part of the $900,000 that Aventine owed it, Gla‐ cial refused to pay Aventine the $700,000—or indeed any‐ thing, while continuing to use the railcars Aventine had transferred to it.

Reversed and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Anthony Brown

Case No.: 15-2243

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge

Focus: Sentencing – Enhancement

Appellant Anthony Brown pled guilty to conspiring to distribute drugs. He appeals his sentence, challenging the application of a two‐level Sentencing Guideline enhancement for obstruction of justice. The unusual process that led to this enhancement persuades us that we should remand. The judge who sentenced Brown imposed the enhancement based on Brown’s responses to three questions in testimony in a hearing on a motion to suppress in an‐ other case against another defendant and before another judge. The other defendant ultimately pled guilty and with‐ drew his motion to suppress. As a result, the judge who actually heard Brown’s testimony never made findings about the honesty of his testimony or the merits of the other defendant’s motion to suppress. The judge who sentenced Brown imposed the enhancement for obstruction of justice based on the other judge’s interim impressions about earlier testimony from police officers. That was not a sufficient factual foundation to support the obstruction of justice enhancement. We vacate Brown’s sentence and remand for resentencing.

Vacated and remanded for resentencing

Full Text

7^th Circuit Court of Appeals

Case Name: Barry Epstein v. Paula Epstein, et al

Case No.: 15-2076

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

Focus: Wiretapping

Barry Epstein sued his estranged wife, Paula, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. The action arises from the couple’s acrimonious divorce. Paula accused Barry of serial infidelity, so in discovery Barry asked her for all documents related to that accusation. Paula complied and produced copies of incriminating

emails between Barry and several other women. Her discovery response spawned this satellite litigation (the divorce action is still pending). Barry alleges that Paula violated the Wiretap Act by surreptitiously placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to her. He also claims that Paula’s divorce lawyer violated the Act by “disclosing” the intercepted emails in response to his discovery request. The district judge dismissed the suit on the pleadings. We affirm in part and reverse in part. The complaint doesn’t state a Wiretap Act claim against Paula’s lawyer. The lawyer can’t be liable for disclosing Barry’s own emails to him in response to his own discovery request. The allegations against Paula, on the other hand, technically fall within the language of the Act, though Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding.

Affirm in part

Reversed in part

Full Text

7^th Circuit Court of Appeals

Case Name: DND International, Inc., v. Federal Motor Carrier Safety Administration

Case No.: 14-3755

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

Focus: Petition for Review – Standing

DND International is a trucking company whose operations were frozen in April 2014 when the Federal Motor Carrier Safety Administration (FMCSA) declared DND an imminent hazard and gave it only a few hours to pull its trucks off the road. This case started with a tragic accident on an unlit road on the night of January 27, 2014, when driver Renato Velasquez of DND International crashed his semi-truck into two emergency vehicles and another semi which were stopped on an Illinois highway. An Illinois Toll Authority employee was killed and a police officer was seriously injured. As a result of this tragedy, the FMCSA immediately revoked Velasquez’s commercial-driving privileges. The FMCSA then opened a company-wide investigation into whether DND’s drivers were following federal regulations designed to keep exhausted drivers off the roads. This investigation went on for approximately two months, and it appears to have been quite thorough. It entailed many interviews, examination of records, verification of statistics, and a number of interactions among FMCSA personnel. In fact, at the conclusion of the investigation, the Field Administrator of the Midwestern Service Center, Darin Jones, in consultation with the FMCSA Director of Enforcement, legal counsel, and FMCSA headquarters, spent one full week reviewing all relevant information to ensure all the results were accurate before he made his decision to issue an imminent-hazard out-of-service order, also known as an IHOOSO. Significantly, all during the two-month investigation DND was permitted to continue normal operations. It was later determined that during the two-month period there were two or three minor problems, but otherwise the company operated fully and efficiently without incident. Nevertheless, on April 1, 2014, the FMCSA issued an IHOOSO without warning, directing DND to immediately halt its trucking operations nationwide. This was not an order telling the company it must conclude all deliveries and not dispatch new deliveries or pickups. Rather, trucks were ordered to immediately stop within eight hours, no matter where the trucks were, and no matter what loads were in the process of being delivered. DND petitioned for administrative review of the IHOOSO. In response, an administrative law judge (ALJ) opened a hearing nine days after the freeze order issued and rendered his decision after another six days. The ALJ ultimately found that the IHOOSO should not have been issued, and he revoked it, noting that the IHOOSO was an effective “death penalty” to this small company. As best we can tell from the record and from the oral argument, the company has ceased doing business during the pendency of this action. The sudden halt to the company’s operations put the company out of business. As shown below, this petition for review does not focus on the irretrievable damage suffered by DND, but rather seeks to correct a decision of an assistant administrator that upheld the ALJ grant of relief to DND. As a result, the case is moot and this court lacks the jurisdiction to provide DND any relief. Thus, we dismiss the petition for review for want of Article III standing.

Dismissed

Full Text

7^th Circuit Court of Appeals

Case Name: Texas Ujoints LLC v. Dana Holding Corp., et al.

Case No.: 16-2239

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Focus: Dealer Agreement Termination

In this diversity suit, governed by Texas law, the plaintiff, Texas UJoints (to simplify, we’ll call it just UJoints), argues that it was a dealer in products of Dana Holding Corporation (a supplier of drive shafts, which typically are devices for transmitting power from an engine to the wheels of a vehicle, and other industrial equipment), in particular Dana’s GWB and Spicer products, and that Dana terminated the dealership of GWB products in violation of a Texas statute. (Dana is the principal defendant; we can ignore the others.) The statute provides that “a supplier may not terminate a dealer agreement without good cause,” Vernon’s Texas Statutes and Codes Annotated, Business and Commerce Code § 57.153, “dealer agreement” being defined as “an oral or written agreement or arrangement, of definite or indefinite duration, between a dealer and a supplier that provides for the rights and obligations of the parties with respect to the purchase or sale of equipment or repair parts.” § 57.002(4). But “good cause for termination of a dealer agreement exists … if there has been a sale or other closeout of a substantial part of the dealer’s assets related to the business.” § 57.154(a)(4)

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Jamie Golden

Case No.: 16-1232

Officials: POSNER, WILLIAMS, and SYKES, Circuit Judges

Focus: Revocation

Shortly after Jamie Golden was released from prison, the government petitioned for revocation of his supervised release. While in jail pending the conclusion of revocation proceedings, Golden was involved in a prison fight in which he repeatedly battered a fellow inmate. As a result, the district judge found that he had committed an aggravated battery—a Grade A violation of his supervised re‐ lease—and revoked his release. On appeal, Golden claims that the district judge erroneously concluded that an aggravated battery had occurred, and that even if it had, it did not constitute a Grade A violation. We disagree. Golden unquestionably battered the other inmate, and because it occurred on public property (a county jail), the battery was aggravated. And the Grade A label was appropriate, since Golden’s conduct qualifies as a “crime of violence” under the U.S. Sentencing Guidelines. Golden also claims that the district judge failed to make the requisite factual findings that supported the duration and conditions of his newly imposed supervised release. But Golden waived this argument by asking for the duration he ultimately received and by affirmatively withdrawing his objections to the conditions he now challenges. So we affirm the district judge’s revocation of Golden’s initial supervised release and her imposition of new supervised‐release conditions.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Eriem Surgical, Inc., v. United States of America et el.

Case No.: 14-3540

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

Focus: Tax Levy

Micrins Surgical, Inc., went out of business on March 13, 2009, without paying all of its taxes. Eriem Surgical, Inc., was incorporated the same day, purchased Micrins’ inventory, took over its office space, hired its employees, used its website and phone number, and pursued the same line of business: the sale of surgical instruments. Bernhard Teitz, the president and 40% owner of Micrins, continued to play a leading role in Eriem, though its sole stockholder is Carol Teitz, Bernhard’s wife. Eriem uses “Micrins” as a trademark. (Bernhard asserts that he owns this mark and licensed it to Eriem.) The Internal Revenue Service treated Eriem as a continuation of Micrins and collected almost $400,000 of Micrins’ taxes from Eriem’s bank accounts and receivables. Eriem responded with this wrongful levy suit under 26 U.S.C. §7426(a)(1). After a bench trial, the district judge concluded that Eriem is indeed a continuation of Micrins and that the levy therefore is valid.

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jesse J. Stevenson

Case No.: 2015AP1132-CR; 2015AP1133-CR

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

Focus: Sentencing – Machner Hearing

In these consolidated appeals, Jesse Stevenson challenges his sentence stemming from two Brown County crime sprees, which primarily involved thefts. He also challenges the denial of his motion to modify his sentence. We conclude that by failing to request a Machner hearing, Stevenson has forfeited any claim that his attorney performed deficiently at his sentencing hearing. We also conclude the circuit court properly exercised its sentencing discretion and correctly rejected Stevenson’s motion for sentence modification. Consequently, we affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael A. Shepard

Case No.: 2015AP1277-CR

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

Focus: OWI – Motion to Suppress

Michael Shepard appeals a judgment, entered upon his guilty pleas, convicting him of operating while intoxicated (“OWI”) as a seventh offense and attempted escape. Shepard argues the circuit court erred by denying his motion to suppress evidence obtained from a traffic stop. We reject Shepard’s arguments and affirm the judgment.

Full Text

WI Court of Appeals – District I

Case Name: E.C. et al v. Susan Krueger

Case No.: 2015AP2196

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

Focus: Guardianship – Power of Attorney

E.C. jointly appeals with her son, G.C., (collectively, “the appellants”) the trial court’s order appointing a corporate guardian and suspending E.C.’s powers of attorney naming G.C. as her agent. At the hearing on the Petition for Permanent Guardianship Due to Incompetency, all parties stipulated to the admission of two doctors’ reports confirming that E.C. was permanently incompetent due to degenerative brain disease. And all parties except E.C. stipulated to the appointment of a third person neutral guardian of the person and estate. Based in part on the stipulation, but also on the testimony of E.C., her husband, and Susan Krueger (the petitioner, who is E.C.’s daughter), and additionally based on the two doctors’ reports, the trial court concluded that E.C. is incompetent as a result of degenerative brain disease and that the appointment of a guardian of the person and estate was in her best interest. The court determined that a neutral third party guardian was in her best interest as well. Finally, the court concluded that good cause was shown for suspension of E.C.’s powers of attorney. Accordingly, the court ordered the powers of attorney suspended and appointed Supportive Community Services, Inc. to serve as her guardian. Because we conclude that the trial court properly exercised its discretion, we affirm the order

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Raymond Cesar Ortiz

Case No.: 2015AP2569-CR

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

Focus: Due Process Violation

Raymond Cesar Ortiz appeals the judgment convicting him after a jury trial of two counts of repeated sexual assault of a child and one count of child enticement. See WIS. STAT. §§ 948.025(1)(ar)(2005-06), 948.07(3) (2005-06, 2007-08) & 948.025(1) (2007-08, 2009-10). 1 He also appeals the order denying his motion for postconviction relief. Ortiz claims the State violated WIS. STAT. § 971.29(2) (2013-14) and denied him due process when it added two new charges in an amended information without seeking leave of the trial court to do so. We conclude that Ortiz forfeited this claim by failing to object to the amendment of the information in the trial court. Accordingly, we affirm

Full Text

WI Court of Appeals – District III

Case Name: Joyce Esselman v. Tim Roach, et al

Case No.: 2015AP2613

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

Focus: Construction Without Permit

Joyce Esselman appeals a circuit court order affirming a decision of the Outagamie County Board of Adjustment finding Esselman had constructed a pond and filled a natural watercourse on her property without obtaining the requisite permit from Outagamie County. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. George W. Mallum, III

Case No.: 16AP765-CR

Officials: Brash, J.

Focus: Court Error – Jury Instructions

George W. Mallum III appeals from a judgment convicting him of two counts of disorderly conduct: one with the use of a dangerous weapon and one as an act of domestic abuse. He also appeals an order denying his postconviction motion. On appeal, Mallum makes the following arguments: (1) the conviction for disorderly conduct, domestic abuse is multiplicitous of disorderly conduct, possession of a firearm and should be vacated; (2) the domestic abuse surcharge should be vacated because the jury did not receive an instruction on the domestic abuse modifier; (3) the court incorrectly imposed a lifetime ban on possessing firearms to Mallum’s sentence pursuant to 18 U.S.C. § 922(g) and the court incorrectly imposed a lifetime ban on possessing firearms as a condition of Mallum’s probation; (4) that 18 U.S.C. § 922(g) is unconstitutional on its face or, in the alternative, as applied in this case; and (5) Wis. Stat. § 973.055 is unconstitutional as applied in this case. We disagree and affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Dwayne T. Candler

Case No.: 2015AP2212-CR

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Ineffective Assistance of Counsel

On March 26, 2013, police received a tip that Dwayne T. Candler and another person drove to Chicago in a third person’s vehicle to buy heroin and were on their way back to Plymouth, Wisconsin. The vehicle was soon located and stopped due to a suspended registration; Candler was in the passenger seat. After a drug-detection dog alerted to the presence of contraband, the officers searched the vehicle and later found heroin on the driver’s person. A probation hold was placed on Candler during the stop, and he was subsequently charged and convicted of possession of heroin with intent to deliver. On appeal, Candler claims that his counsel was ineffective for failing to argue that the canine sniff was a search requiring probable cause and that his detention on a probation hold was unreasonable. We disagree and affirm.

Full Text

WI Court of Appeals – District II

Case Name: Darlene Tirella v. Carmen Tirella, Sr.

Case No.: 2015AP2621

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

Focus: Divorce – Spousal Maintenance

Carmen Tirella, Sr., and Darlene Tirella were divorced in July 2015 after a twenty-four-and-one-half-year marriage. Carmen appeals an order denying his motion for reconsideration of the trial court’s rulings on income it imputed to him, the duration and terms of maintenance, and his ordered contribution to Darlene’s attorney fees. He also appeals an order finding him in contempt for willful nonpayment of child support, maintenance, and a contribution to Darlene’s attorney’s fees. We affirm the orders.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. David Robert Brown

Case No.: 2016AP83-CR

Officials: Hagedorn, J.

Focus: OWI – Jury Instruction

David Robert Brown appeals from a judgment convicting him of operating a motor vehicle while intoxicated (OWI). He claims the circuit court erred by giving the standard jury instruction that allowed the jury to infer that Brown was intoxicated based on his breath test result. We disagree and affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. David H. Ninnemann

Case No.: 2016AP1294-CR

Officials: Gundrum, J.

Focus: Sentencing – Court Error – Abuse of Court Discretion

David Ninnemann appeals from a judgment of conviction and order denying postconviction relief entered after he pled no contest to five counts of lewd and lascivious behavior under WIS. STAT. § 944.20(1)(b). He contends the circuit court erroneously exercised its discretion in requiring him to report as a sex offender and in sentencing him to thirty-six months in jail following the revocation of his probation. We disagree and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Demetrius M. Boyd

Case No.: 2015AP2270-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Sufficiency of Evidence

After a trial to the court, Demetrius Boyd was found guilty of battery by a prisoner and disorderly conduct. See WIS. STAT. §§ 940.20(1) and 947.01(1) (2013-14). On appeal, Boyd challenges the sufficiency of the evidence as to both crimes. He also contends his trial counsel was ineffective in his investigation into whether a video recording of the incident existed. We conclude the State presented sufficient evidence to support a finding of guilt on both crimes. We further conclude that Boyd has not established that counsel’s performance was deficient. Accordingly, we affirm the judgment of conviction and postconviction order.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Adore A. Thomas

Case No.: 2015AP2363-CR

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

Focus: Suppression of Evidence

Adore Thomas appeals a judgment of conviction for three counts of first-degree sexual assault by use of a dangerous weapon, one count of aggravated battery, and one count of strangulation and suffocation. Thomas contends that DNA and other evidence linking him to the crimes should

have been suppressed because in the search warrant affidavit police knowingly included a false statement and omitted material facts. For the reasons set forth below, we disagree. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Shannon Olance Hendricks

Case No.: 2015AP2429-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Court Error – Plea Bargain

Shannon Hendricks argues that the circuit court erred when it denied his postconviction plea withdrawal motion. Hendricks contends that the plea hearing transcript reveals a plea colloquy defect within the meaning of State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). More specifically, Hendricks argues that it was error for the court to fail to inquire into Hendricks’ understanding of the intent-to-have-sexual-contact alternative that was part of the charged child enticement offense. Although we question some of the law that binds us, we ultimately agree with the circuit court that, under this law, there was no plea colloquy defect. We therefore affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeffrey Joseph Starkman

Case No.: 2016AP75-CR

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

Focus: Sufficiency of Evidence – Ineffective Assistance of Counsel

Jeffrey Joseph Starkman appeals a judgment of conviction entered after a jury found him guilty of multiple charges including two counts of attempted first-degree intentional homicide, and an order denying his motion for postconviction relief. Starkman argues that the evidence was insufficient to support his attempted first-degree intentional homicide conviction as to the female victim, K.P., and that trial counsel provided ineffective assistance. We reject these claims and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Gregory J. McMillan

Case No.: 2016AP127-CR

Officials: Lundsten, J.

Focus: Motion to Suppress – Reasonable Suspicion

Gregory McMillan argues that the circuit court wrongly denied his suppression motion. More specifically, McMillan challenges a seizure by a police officer that led to evidence that McMillan was driving while intoxicated. Because I agree with the circuit court that reasonable suspicion justified the seizure, I affirm the circuit court’s judgment convicting McMillan of operating while under the influence of an intoxicant.

Full Text