Case Digests — March 17-21, 2014

Listen to this article

Wisconsin Law Journal

Case Digests, March 17-21, 2014

Wisconsin Court of Appeals

Civil
Corporations — derivative actions — standing

Plaintiffs-Appellants appeal the circuit court’s order dismissing their “unjust enrichment/constructive trust” and fraudulent transfer claims against Defendants-Respondents. The circuit court granted Respondents’ motions to dismiss, concluding that the amended complaint failed to state a claim against Respondents because Appellants’ claims are derivative and they do not have standing to bring them. We agree and affirm. Not recommended for publication in the official reports.

2013AP930 AM Community Credit Union et al. v. M&D Investment Company LLC et al

Dist II, Waukesha County, Kieffer, J., Gundrum, J.

Attorneys: For Appellant: Devitt, Teague D., Madison; For Respondent: Hale, Christopher T., Milwaukee; Frank, Andy G., Milwaukee; Wagner, K. Scott, Milwaukee; Olson, Mitchell R., Madison

Wisconsin Court of Appeals

Civil
Insurance — UIM coverage – stacking — drive-other-car exclusions

Travis Dicks appeals a summary judgment in favor of State Farm Mutual Insurance Company. The circuit court held that State Farm’s “drive-other-car” exclusion precluded stacking of uninsured motorist coverages for this accident. We conclude this case is controlled by our supreme court’s recent decision in Belding v. Demoulin, 2014 WI 8, ___ Wis. 2d ____, ____ N.W.2d ___. Accordingly, we reverse and remand for further proceedings. This opinion will not be published.

2013AP79 Dicks et al. v. Great West Casualty Co. et al.

Dist III, Trempealeau County, Damon, J., Per Curiam

Attorneys: For Appellant: Abraham, Jason, Milwaukee; Mirabella, Joseph M., Milwaukee; For Respondent: Covelli, Claude J., Madison

Wisconsin Court of Appeals

Civil
Insurance — UIM coverage – stacking — drive-other-car exclusions

Thomas Whalen, Holly Whalen, Jacob Whalen, and Keaton Whalen (collectively “Whalen”) appeal a partial summary judgment in favor of State Farm Mutual Automobile Insurance Company. The circuit court held that Wis. Stat. § 632.32(6)(d) did not prohibit antistacking provisions in insurance policies. We conclude this case is controlled by our supreme court’s recent decision in Belding v. Demoulin, 2014 WI 8, ___ Wis. 2d ___, ___ N.W.2d ___. Accordingly, we reverse and remand for further proceedings. This opinion will not be published.

2013AP24 Whalen v. State Farm Mutual Automobile Insurance Co., et al.

Dist III, Lincoln County, Yackel, J., Per Curiam

Attorneys: For Appellant: Allen, Shannon A., Milwaukee; Tlusty, Jessica J., Schofield; Meuler, Christopher M., Milwaukee; For Respondent: Covelli, Claude J., Madison; Dolata, Timothy J., Green Bay

Wisconsin Court of Appeals

Civil
Property – foreclosure – release — sanctions

This appeal is before us on a grant of permissive appeal pursuant to Wis. Stat. § 809.50 (2011-12) to Arch Bay Holdings LLC-Series 2008B (“Arch Bay”) to appeal from an order not appealable as of right. Arch Bay appeals from a non-final order of the circuit court imposing sanctions on Arch Bay and compelling Arch Bay to conduct a sheriff’s sale and assume ownership of a mortgaged property. We reverse and remand for further proceedings consistent with this opinion. Not recommended for publication in the official reports.

2013AP744 Arch Bay Holdings LLC-Series 2008B v. Matson et al

Dist I, Milwaukee County, Amato, J., Kessler, J.

Attorneys: For Appellant: Foshag, William N., New Berlin; Oettinger, Andrew S., Milwaukee; For Respondent: Jesinski, Kyle E., Milwaukee

Wisconsin Court of Appeals

Civil
Civil Procedure – sanctions — frivolous actions

Daniel Bishop appeals the circuit court order denying his motion for frivolous-action sanctions against Joe DeBelak Plumbing & Heating Company, Inc., and also denying him costs for having prevailed on DeBelak’s claims against him. We affirm in part, reverse in part, and remand for further proceedings. This opinion will not be published.

2013AP2010 Joe DeBelak Plumbing & Heating Co. Inc. v. Bishop et al

Dist I, Milwaukee County, Kuhnmuench, J., Fine, J.

Attorneys: For Appellant: Machulak, John E., Milwaukee; For Respondent: Allen, Donald A., Milwaukee; Becker, Bryan M., Milwaukee; Turiciano, David J., Milwaukee

Wisconsin Court of Appeals

Civil
Torts — safe place statute — negligence

Ty Babbitts appeals a circuit court order dismissing Babbitts’ negligence and safe place statute claims on summary judgment. Babbitts argues that: (1) disputed issues of material fact precluded summary judgment; (2) the circuit court erred by denying Babbitts’ motion for reconsideration, dismissing Babbitts’ claims with prejudice, and denying Babbitts leave to file a second amended complaint; and (3) Babbitts is entitled to reversal in the interest of justice. We conclude that the circuit court properly granted summary judgment because the undisputed evidence defeated Babbitts’ safe place and negligence claims. We further conclude that the circuit court did not erroneously exercise its discretion by denying Babbitts’ motions, that the order was properly entered, and that Babbitts is not entitled to reversal in the interest of justice. We affirm. This opinion will not be published.

2013AP117 Babbitts v. Petersen, et al.

Dist IV, Waupaca County, Hoffmann, J., Per Curiam

Attorneys: For Appellant: Henderson, Brian J., Milwaukee; For Respondent: Dreier, Gary L., Stevens Point

Wisconsin Court of Appeals

Civil
Contracts — arbitration

A time limitation regarding initiation of arbitration in a contract is a proper subject for court review.

“In sum, assuming without deciding that there is a construction of the agreement to arbitrate that would, on its face, require arbitration of the fees-and-costs dispute, Graham undertook in the agreement to arbitrate an obligation to arbitrate only those disputes initiated within 180 days of closings or of the discovery of disputes with reasonable diligence, whichever came later. Because First Weber failed to point to clear and unmistakable language in the agreement to arbitrate showing that this issue was to be resolved in the arbitration process, the circuit court properly addressed the question of whether the fees and costs dispute here was subject to arbitration in light of the 180-day time limitation.”

Affirmed.

Recommended for publication in the official reports.

2013AP1205 First Weber Group Inc. v. Synergy Real Estate Group LLC

Dist. IV, Dane County, Colas, J., Blanchard, J.

Attorneys: For Appellant: Moermond, Kim, Madison; For Respondent: Graham, James N., Madison

Wisconsin Court of Appeals

Civil
Torts – defamation — invasion of privacy

Catherine Conrad appeals an order dismissing Conrad’s action for defamation, invasion of privacy, and trademark and trade dress infringement based on events following Conrad’s performance of a singing telegram as the character “Banana Lady.” Conrad contends that her complaint should not have been dismissed because it stated valid claims. We conclude that Conrad’s complaint fails to state any cognizable claim. Accordingly, we affirm. This opinion will not be published.

2013AP177 Rigsby et al. v. AM Community Credit Union, et al.

Dist IV, Dane County, Foust, J., Per Curiam

Attorneys: For Appellant: Conrad, Catherine, pro se; For Respondent: Fredericks, James M., Milwaukee; Silver, Patryk, Madison

Wisconsin Court of Appeals

Civil
Civil Procedure – sanctions — frivolous actions

Catherine Conrad appeals the circuit court’s judgment finding Conrad’s action frivolous and imposing sanctions. Conrad asserts that her claims have merit. Affirmed. This opinion will not be published.

2013AP2085 Conrad et al. v. Crooks et al.

Dist IV, Dane County, Gaylord, J., Per Curiam

Attorneys: For Appellant: Conrad, Catherine, pro se; For Respondent: Crooks, Michael P., Madison; Kulkoski, Grace Marie, Madison

Wisconsin Court of Appeals

Criminal
Child Abuse – conspiracy — reasonable discipline privilege

Philip Caminiti appeals the circuit court’s judgment of conviction for eight counts of conspiracy to commit child abuse. He also appeals the order denying his motion for postconviction relief. Caminiti was convicted after an eight-day jury trial at which the prosecutor elicited evidence that Caminiti, as the leader of a small, close-knit religious community or church, instructed and pressured attendees to discipline infants starting as young as two or three months of age by striking their bare bottoms using wooden spoons and dowels with an amount of force that caused significant bruising.

Caminiti raises several challenges to his convictions, organized into three main groupings. First, Caminiti argues that the prosecutor’s theory of prosecution violated three constitutional rights, which Caminiti characterizes as: (1) his right to advocacy, (2) his right to freedom of religion, and (3) the parents’ right to raise their children as they see fit. Second, Caminiti argues that the circuit court committed two evidentiary errors: admitting expert testimony on the parents’ statutory reasonable discipline privilege, and admitting evidence that one of the parents pled guilty to and was convicted of child abuse. Third, he argues that trial counsel was ineffective by failing to object to two alleged errors in the jury instructions. In addition, Caminiti argues that the cumulative effect of errors was not harmless and that we should reverse in the interest of justice. We reject Caminiti’s arguments, and affirm. Not recommended for publication in the official reports.

2013AP730-CR State v. Caminiti

Dist IV, Dane County, Sumi, J., Lundsten, J.

Attorneys: For Appellant: Henak, Robert R., Milwaukee; Henak, Ellen, Milwaukee; For Respondent: Rusch, Shelly J., Madison; Whelan, Maura F.J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — judicial bias

Khalif Love appeals a conviction for second-degree reckless homicide by use of a dangerous weapon, as a party to a crime, and possession of a firearm by a felon, both as repeaters. Love argues that the circuit court: (1) erred by giving the lesser included jury instruction for second-degree reckless homicide; (2) violated Love’s right to a fair trial by its conduct during and after testimony given by his brother, Litwain Love; and (3) improperly denied Love’s motion for a mistrial. Love also argues that Wisconsin “must change the way it handles felon-in-possession of a firearm trials.” We reject Love’s arguments and affirm. This opinion will not be published.

2013AP152-CR State v. Love

Dist I, Milwaukee County, Borowski, J., Per Curiam

Attorneys: For Appellant: Kohler, Martin E., Milwaukee; Powell, Craig S., Milwaukee; Misfeldt, Geoffrey R., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — reasonable suspicion

A “security adjustment,” in a high crime area is insufficient to justify a Terry stop.

“[T]he circuit court’s main rationale in denying Gordon’s suppression motion was what it found was Gordon’s ‘security adjustment.’ But, as Officer Ticcioni recognized, many folks, most innocent of any nefarious purpose, may occasionally pat the outside of their clothing to ensure that they have not lost their possessions. Indeed, this makes even more sense in a high crime area than it might in other less crime-ridden parts of our community. Although, as Ticcioni explained, the ‘security adjustment’ could, given additional facts (such as, for example, flight or attempted flight), support an objective ‘reasonable suspicion,’ the additional facts here—high crime area and recognizing the police car as a police car—are far too common to support the requisite individualized suspicion here.”

Reversed.

Publication in the official reports is recommended.

2013AP1878-CR State v. Gordon

Dist. I, Milwaukee County, Fiorenza, J., Fine, J.

Attorneys: For Appellant: Marion, Colleen, Milwaukee; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal
Sentencing — discretion

Venceremos Crump appeals the judgment of conviction, following a guilty plea, of one count of misdemeanor battery. Crump also appeals from the order denying his postconviction motion for resentencing. We affirm. This opinion will not be published.

2013AP2163-CR State v. Crump

Dist I, Milwaukee County, Flanagan, J., Kessler, J.

Attorneys: For Appellant: Betthauser, Charles David, Waukesha; For Respondent: Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison; Kunisch, Margaret Anne, Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal

Timothy Finley, Jr., appeals a judgment of conviction and an order denying his postconviction motion for plea withdrawal or sentence commutation. Finley argues he made a prima facie showing that his plea was not knowing and voluntary because he was not accurately apprised of the maximum potential sentence. Because Finley was significantly misinformed of the potential penalty, we reverse the order and remand for further proceedings. This opinion will not be published.

2013AP1846-CR State v. Finley

Dist III, Brown County, Atkinson, J., Per Curiam

Attorneys: For Appellant: Askins, Martha K., Madison; For Respondent: Balistreri, Thomas J., Madison; Lasee, David L., Green Bay

Wisconsin Court of Appeals

Criminal
Search and Seizure — stop and detention — reasonable suspicion

James Terrell Harris appeals from an amended judgment of conviction, entered on his guilty plea, for one count of possession with intent to deliver between ten and fifty grams of heroin. See Wis. Stat. § 961.41(1m)(d)3. (2011–12). Harris argues that his motion to suppress drug evidence found on his person after a traffic stop should have been granted. We affirm. This opinion will not be published.

2013AP1507-CR State v. Harris

Dist I, Milwaukee County, Fiorenza, J., Per Curiam

Attorneys: For Appellant: Wilson, Jeff T., Shorewood; For Respondent: Loebel, Karen A., Milwaukee; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles — implied consent

Robert Hammersley, pro se, appeals an order denying relief from a 1995 default order revoking his license for violating the implied consent law. He also appeals an order denying his motion for reconsideration. Hammersley argues the circuit court prematurely entered the 1995 order, the officer failed to perform his duties under the implied consent law, and a stipulation he entered in the related operating-while-intoxicated case does not preclude relief. We disagree and affirm. This opinion will not be published.

2013AP1263 County of Oconto v. Hammersley

Dist III, Oconto County, Judge, J., Stark, J.

Attorneys: For Appellant: Hammersley, Robert E., pro se; For Respondent: Mraz, Robert J., Oconto

Wisconsin Court of Appeals

Criminal
Criminal Procedure — due process — amendment of complaint

Following a jury trial, Joel Hurley was convicted of one count of repeated sexual assault of the same child. Hurley moved for postconviction relief, raising several arguments, the majority of which the circuit court rejected. However, the court agreed Hurley was entitled to a new trial based on an improper remark the prosecutor made during his closing argument about certain other acts evidence. The court therefore entered an order vacating Hurley’s conviction, granting him a new trial, and denying his remaining postconviction claims.

The State appeals from the circuit court’s postconviction order, arguing a new trial is not warranted because the prosecutor’s remark about the other acts evidence was not improper. Hurley cross-appeals, arguing the circuit court erred by denying his other postconviction claims. He first argues the charge against him should have been dismissed because the amended complaint violated his right to due process. He also argues he is entitled to a new trial based on a different remark the prosecutor made during his closing argument. Finally, he argues a new trial is warranted because the circuit court erroneously admitted the other acts evidence.

We agree with Hurley that the amended complaint violated his right to due process. We therefore reverse the circuit court’s postconviction order in part and remand for the court to dismiss the charge against Hurley without prejudice. We also conclude the circuit court erred by admitting the other acts evidence, and the error was not harmless. Consequently, even absent dismissal of the charge, Hurley would be entitled to a new trial. Given our disposition of these two issues, we need not address the parties’ remaining arguments regarding the prosecutor’s closing argument. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on narrowest possible ground). This opinion will not be published.

2013AP558-CR State v. Hurley

Dist III, Marinette County, Miron, J., Per Curiam

Attorneys: For Appellant: Brey, Allen R., Marinette; Weber, Gregory M., Madison; Hoffmann, Kent R., Marinette; Wittwer, Jacob J., Madison; For Respondent: Powell, Craig S., Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance — deliberate charging delay

Agustin Velez appeals an order that denied his postconviction motion filed under Wis. Stat. § 974.06 (2011-12). He also appeals an order that denied his motion to reconsider. He alleges that his trial counsel was ineffective in pursuing his claim that the State deliberately delayed charging him with first-degree intentional homicide to avoid juvenile court jurisdiction. He further alleges that he has newly discovered evidence to support his claim of deliberate charging delay. The circuit court rejected his claims without a hearing. We affirm. This opinion will not be published.

2011AP2455 State v. Velez

Dist I, Milwaukee County, Conen, J., Per Curiam

Attorneys: For Appellant: Velez, Agustin Junior, pro se; For Respondent: Loebel, Karen A., Milwaukee; Moeller, Marguerite M., Madison

Wisconsin Court of Appeals

Criminal
Evidence — other acts

Timothy T. Murry appeals from a judgment of conviction and an order denying his motion for postconviction relief. He contends that the circuit court erroneously exercised its discretion by admitting other acts evidence against him. He further contends that his trial counsel was ineffective for failing to persuade the circuit court to exclude the other acts evidence. We reject Murry’s claims and affirm the judgment and order. This opinion will not be published.

2013AP1300-CR State v. Murry

Dist II, Kenosha County, Kluka, Rossell, J., Per Curiam

Attorneys: For Appellant: Alderman, Kimberly L., Madison; For Respondent: Zapf, Robert D., Kenosha; Johnson-Karp, Gabe, Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — strip searches — exclusionary rule

Suppression of evidence is not a remedy for a violation of sec. 968.255.

“Firstly, this statute, unlike the statute in Popenhagen, enumerates specific remedies for its violation: (1) a $1000 fine or imprisonment, WIS. STAT. §968.255(4), and (2) civil damages or injunctive relief. Thus, unlike in Popenhagen, here there is no evidence that the legislature contemplated any remedies ‘similar in nature’ to a motion to suppress. Secondly, allowing such a motion would not be germane to the objectives of the statute. This is a regulatory statute aimed at controlling law enforcement officers’ conduct via criminal penalties. It does not mention probable cause and authorizes no motions to quash or limit the search. So, while, in other cases, a suppression motion might be an appropriate remedy for a violation of the law that took place during a strip search — if, for instance, there was no probable cause for the search — where, as here, there was concededly no violation of any constitutional right but merely of the statute itself, the violation of the statute provides no basis for a suppression motion. See also Jenkins v. State, 978 So. 2d 116, 128-30 (Fla. 2008) (holding that absent constitutional violation, where the strip search statute did not expressly authorize suppression as a remedy, suppression was not a remedy).”

Affirmed.

Recommended for publication in the official reports.

2013AP634-CR State v. Minett

Dist. II, Walworth County, Carlson, J., Brown, J.

Attorneys: For Appellant: Silver, Maayan, Milwaukee; For Respondent: Moeller, Marguerite M., Madison; Necci, Daniel A., Elkhorn

U.S. Court of Appeals for the Seventh Circuit

Civil
Bankruptcy — preferential transfers

Where the bankruptcy court authorized a transfer of assets, it cannot later be ordered returned as a preferential transfer.

“If we were to conclude now that the authorized transfer was not authorized after all, FCStone would face the resulting liquidity crunch now. The losses would fall not on its clients and creditors of 2007 but on its later clients and creditors, meaning that losses would fall quite differently than they would have in 2007. In other words, the bankruptcy court’s later interpretation of its order would change the allocation of the loss stemming from Sentinel’s bankruptcy, shifting it away from one group of FCStone customers and onto another. FCStone, the other FCMs, their customers, and all other affected parties have strong reliance interests in not allowing the bankruptcy court or the trustee to rewrite history in this way.”

Reversed.

13-1232 & 13-1278 Grede v. FCStone LLC

Appeals from the United States District Court for the Northern District of Illinois, Zagel, J., Hamilton, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Labor – FLSA — overtime

Time spent donning and doffing gear during lunch breaks is not compensable overtime.

“Common sense has a place in adjudication. What could be more absurd than to require as a matter of interpretation of the Fair Labor Standards Act that donning and doffing times during lunch breaks be measured daily for each poultry worker for purposes of calculating overtime pay (a modest fraction of an hour’s wage) due each worker twice every day? For the employer to try to quantify that time, across numerous employees and numerous days of work, other than by statistical sampling methods suggested by neither side in this case, would be an undertaking at once onerous and futile. Nor is having to change inconsistent with the plaintiffs’ having been ‘completely relieved from duty’ during their lunch break, 29 C.F.R. § 785.19(a), considering how remote from this simple changing are the ‘duties’ listed in the regulation: ‘an office employee who is required to eat at his desk or a factory worker who is required to be at his machine.’”

Affirmed.

13-2115 Mitchell v. JCG Industries Inc.

Appeal from the United States District Court for the Northern District of Illinois, Dow, J., Posner, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Labor — judicial review

The court has no jurisdiction to review an NLRB decision to hold a second decertification election.

“Heartland jumped the gun by refusing to recognize the union before the new election ordered by the Board was conducted and its results certified. The company argues that if it can prove that the June 2012 election was fair and square and the union should therefore be decertified, it and the union will be spared the bother of a second election. But suppose the company fails to prove that and so a new election has to be conducted; probably by the time it’s conducted, two years will have elapsed since the first election. Had the company not withdrawn recognition of the union after the decertification election, the union would have had no grounds for filing an unfair labor practice complaint and the new election would have been conducted promptly. And had the company lost and wanted the initial election reinstated, it could by withdrawing recognition of the union have precipitated an unfair labor practice complaint and obtained, if the Board determined that the refusal of recognition was an unfair labor practice, judicial review of that determination.”

Order Enforced.

13-1954 & 13-2079 Heartland Human Services v. NLRB

Application for Enforcement, and Cross-Petition for Review, of an Order of the National Labor Relations Board, Posner, J.

United States Court of Appeals for the Seventh Circuit

Civil
Consumer Protection — TILA

It did not violate the Truth in Lending Act for a retailer to send new credit cards to its customers and deactivate the customers’ old cards.

“Plaintiffs try to cast the Visa mailings as an offer to change the underlying account relationship and not as an actual change to the account relationship. As support, they point to the instances where Guest Card holders were targeted for Visa substitution, but the customer either called Target or protested at the point of sale. But the Autosub program was more than a mere offer—unless a customer affirmatively resisted the substitution, either the Visa replaced the Guest Card or the Guest Card account was closed entirely. Moreover, Plaintiffs’ assertion that an offer to substitute the Visa for the Guest Card would somehow offend TILA is without support in the regulations or commentary. In fact, it strikes us as contrary to the spirit of TILA to read the statute as Plaintiffs urge. If a customer’s ability to reject a substitution card somehow rendered the substitution illegal, issuers would instead impose the substitution with no opt-out ability. Consumer choice and flexibility would be hamstrung — a strange result under a consumer protection statute.”

Affirmed.

13-2706 Acosta v. Target Corp.

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Flaum, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Immigration — asylum

Where a former Mexican police officer has been targeted for death by drug cartels, his petition for asylum was improperly denied.

“Yet although the record contains evidence that drug-dealing organizations in Mexico target former police officers in general, and R.R.D. in particular, the Board did not mention it. That won’t do. The Board must analyze rather than ignore material evidence. Escobar, 657 F.3d at 544. Perhaps the Board thinks that the risk R.R.D. faces as a former officer is too slight to satisfy the standard for asylum, but it did not say this. Chenery requires us to return this matter to the Board.”

Petition Granted.

13-2141 R.R.D. v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Easterbrook, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Criminal Procedure — right against self-incrimination

In a prosecution for tax fraud, it did not violate the defendant’s right against self-incrimination for an IRS agent to testify that she began withdrawing large sums of money after he attempted to interview her.

“In light of what happened at Mrs. Phillips’ trial, her argument is unconvincing. The government’s explanation for Agent Howard’s testimony — to establish that the couple started withdrawing cash as soon as they became aware of the IRS investigation — is logical and is reflected in the government’s closing argument. The government intended to, and did, point out suspicious conduct and timing, rather than comment on Mrs. Phillips’ invocation of her right against self-incrimination. Nor would a jury be likely to view Agent Howard’s testimony as commenting on her silence. Indeed, the evidence does not even tell us whether the agents actually spoke to Mrs. Phillips, and if they did, what she did or did not say. Nor did the record clearly suggest that she was silent. We therefore conclude that the government did not violate her right against self-incrimination.”

Affirmed.

12-2532 U.S. v. Phillips

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Flaum, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — crack cocaine

A federal prisoner’s successful recalculation of his sentence under 18 U.S.C. 3582(c) does not entitle him to file a successive collateral attack under 28 U.S.C. 2255.

“Magwood v. Patterson, 130 S. Ct. 2788 (2010), holds that the issuance of a writ of habeas corpus setting aside a sentence as invalid, followed by the imposition of a new sentence, resets the clock and the count, so that an attack may be waged against the new sentence even if the same legal grounds could have been urged against the original sentence. (Whether Magwood has any other effect was the subject of disagreement among members of this court in Suggs v. United States, 705 F.3d 279 (7th Cir. 2013). The issue in Suggs does not affect White’s case.) White maintains that he is in the same position as Magwood: he has been resentenced, and he now wants to use §2255 to contest that sentence on grounds that existed before the new sentence was imposed.”

“To say that White’s sentence has changed is not, however, to say that he is in the same position as Magwood, who demonstrated in his initial collateral attack that his original sentence violated the Constitution. See 130 S. Ct. at 2797. White’s invocation of Amendment 750 did not rest on a contention that his 2006 sentence was unlawful (constitutionally or in any other way), and the district judge did not find it so. Instead White contended, and the judge concluded, that the Guidelines had changed after 2006, and that §3582(c) authorizes a reduction because the Sentencing Commission made that change retroactive.”

Dismissed.

13-3396 White v. U.S.

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Easterbrook, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — sexual abuse of a minor

In sentencing the defendant for possession of child pornography, the district court did not err in finding that he sexually abused a minor, notwithstanding inconsistencies.

But the court did not clearly err in crediting the government’s evidence, particularly the five-year-old girl’s statements. Although the reports contain inconsistent dates over when she told her mother of the abuse (one report lists 2005, the other 2006), minor discrepancies are not a basis for finding clear error. See United States v. Nicksion, 628 F.3d 368, 376 (7th Cir. 2010); United States v. Robinson, 586 F.3d 540, 546–47 (7th Cir. 2009). The girl said that the abuse occurred when she was three or four years old (approximately 2005 or 2006), and the district court could find her statements to be sufficiently reliable given that she has steadfastly insisted (to her mother, to the police, and to the FBI) that she suffered repeated sexual abuse. See Doe v. United States, 976 F.2d 1071, 1079 (7th Cir. 1992) (explaining that three-year-old’s statements about sexual abuse were reliable because ‘the basic framework of [her] story remained the same’). The district court also reasonably noted that her description of sexual abuse was corroborated by Houston’s chat about his ejaculation fantasy as well as the two other accusations of sexual misconduct. See United States v. Meschino, 643 F.3d 1025, 1029 (7th Cir. 2011) (chat logs and testimony from another victim corroborated court’s finding of sexual abuse); United States v. Paull, 551 F.3d 516, 527 (6th Cir. 2009) (statements from victim’s family members corroborated victim’s description of sexual abuse); United States v. Stewart, 462 F.3d 960, 964 (8th Cir. 2006) (sexual ‘chat room banter was sufficiently reliable to support the sentencing enhancement’).”

Affirmed.

13-2713 U.S. v. Houston

Appeal from the United States District Court for the Northern District of Illinois, Castillo, J., Per Curiam.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Evidence — character for truthfulness

In a prosecution for unlawfully structuring bank transactions, the district court erred in allowing cross-examination regarding allegedly false statements on tax returns.

“Two weeks before she was planning to close on the purchase of a new home in Indiana, appellant Yulia Abair learned that her bank in Russia would not wire the purchase price from her account. She managed to secure the money before the closing by withdrawing a few hundred dollars at a time from ATMs up to her maximum daily limit and depositing the cash at her bank in Indiana. She was charged with violating a federal criminal statute that prohibits structuring currency transactions in order to evade federal reporting requirements for transactions involving more than $10,000 in currency. 31 U.S.C. § 5324(a)(3). Abair was convicted in a jury trial. She also agreed to sell her new home and to forfeit the entire proceeds to the government. She argues on appeal that the trial court erroneously applied Federal Rule of Evidence 608(b) by allowing the prosecutor to cross-examine her at length about alleged false statements on a tax return and student financial aid applications. We find that the government lacked a good faith basis for believing that Abair lied on the tax and financial aid forms and therefore conclude that the district court erred by allowing the prosecutor to ask a series of accusatory and prejudicial questions about them under Rule 608(b). We cannot say that the error was harmless in a trial that hinged on Abair’s credibility. We reverse Abair’s conviction and remand for a new trial.”

Reversed and Remanded.

13-2498 U.S. v. Abair

Appeal from the United States District Court for the Northern District of Indiana, DeGuilio, J., Hamilton, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — crack cocaine

Where the statutory minimum sentence exceeds the guideline range, the statutory minimum is the applicable guideline range.

“Johnson tries to argue that Poole was superseded by the 2011 amendments to the Sentencing Guidelines, which defined ‘applicable guideline range’ for the first time. He suggests that the definition includes only the criminal history category and offense level calculations, without consideration of any statutory mandatory minimums. But the commentary Johnson points to defines ‘guideline range’ as ‘the range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a).’ U.S.S.G. § 1B1.1 cmt. n.1(A) (emphasis added). Subsection 8 of § 1B1.1(a) directs a sentencing judge to apply parts B through G of Chapter 5 of the guidelines. This includes § 5G1.1, which provides that where a minimum sentence is greater than the guidelines sentence, the minimum sentence becomes the guidelines sentence. The statutory minimum is part of the ‘applicable guideline range.’ Johnson’s argument is a non-starter.”

Affirmed.

13-2732 U.S. v. Johnson

Appeal from the United States District Court for the Central District of Illinois, McDade, J., Kanne, J.