Weekly Case Digests — April 28 – May 2, 2014

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Wisconsin Law Journal Case Digests, April 28-May 2, 2014

Wisconsin Court of Appeals

Civil
Environmental Law – discharge — judicial review

A contested case hearing under sec. 283.63 as a prerequisite to judicial review of the DNR’s decision to issue a WPDES permit.

“The harsh and unfair consequences of the exhaustion doctrine that were present in Trager, Town of Menasha, and Mentek are not present in this case. CWAC is not an unwilling defendant in a forfeiture action facing a monetary sanction. Nor is CWAC a pro se litigant facing the deprivation of its liberty interest. Instead, CWAC is a party that, while represented by counsel, chose to initiate litigation using a procedure contrary to well-settled law in reliance on a novel interpretation advanced by the attorney general. Under these circumstances, the public’s interest in the sound administration of justice is best served by the use of the two-step procedure set forth in WIS. STAT. §283.63 and required by Sewerage Commission. CWAC has not established that the circuit court erroneously exercised its discretion by failing to apply an exception to the exhaustion doctrine.”

Affirmed.

Recommended for publication in the official reports.

2013AP2112 Clean Water Action Council of Northeast Wisconsin v. DNR

Dist. III, Brown County, Atkinson, J., Stark, J.

Attorneys: For Appellant: Lawton, Elizabeth, Madison; Parra, James E., Madison; For Respondent: Stoltzfus, Lorraine C., Madison; Hemaidan, Jordan J., Madison; Screnock, Michael P., Madison

Wisconsin Court of Appeals

Civil
Trusts and Estates — extrinsic evidence

Kim Christiansen and Liesel Danielson (“Christiansen”) appeal an order in favor of various beneficiaries (“Bradford”) in this will contest. Christiansen contends the circuit court erroneously considered extrinsic evidence when interpreting the will. He argues the will unambiguously requires his sister’s share to be reduced by $100,000. He further argues the amount of that reduction, together with the amount of several others required by the same article, must be distributed to a trust for his children pursuant to the will’s residuary clause. We agree, reverse, and remand for the circuit court to enter an order directing the personal representative to act in accordance with this opinion. This opinion will not be published.

2013AP1134 In re the estate of Millicent W. Christiansen: Christiensen et al. v. Bradford et al.

Dist III, Pierce County, Duvall, J., Per Curiam

Attorneys: For Appellant: Nelson, Scott M., Edina, Minn.; Newman, Holly J., Minneapolis; For Respondent: Waterman, R. Michael, Hudson; Loberg, Robert L., Ellsworth

Wisconsin Court of Appeals

Civil
Tax — property tax — environmental contamination

Ronald L. Collison, pro se, petitions for certiorari review of the City of Wauwatosa Board of Review’s decision assessing his property at $59,000 for 2012. Collison argues: (1) that the Board’s assessment is not supported by a reasonable view of the evidence; and (2) that the Wisconsin Property Assessment Manual used by the assessor violates Wis. Stat. § 70.32(1m) (2011-12). We affirm. This opinion will not be published.

2013AP724 State ex rel. Collison v. City of Wauwatosa Board of Review

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

Attorneys: For Appellant: Collison, Ronald L., pro se; For Respondent: Braithwaite, Ryan, Milwaukee

Wisconsin Court of Appeals

Civil
Family — QDROs

Robert Vonfrick appeals three orders: an order denying his motion for reconsideration of a divorce judgment, a qualified domestic relations order and a contempt order. Robert argues the circuit court erroneously exercised its discretion regarding the reconsideration motion, the QDRO implemented prior court error, and the contempt order lacked evidentiary support. We affirm. This opinion will not be published.

2013AP624 In re the marriage of: Vonfrick v. Vonfrick

Dist III, St. Croix County, Vlack, J., Per Curiam

Attorneys: For Appellant: Hunt, Kay N., Minneapolis; Johannsen, Marc A., Minneapolis; For Respondent: Allen, Rose M., Hudson

Wisconsin Court of Appeals

Civil
Employment — wrongful termination

Dennis Cahoon, a former American Family Mutual Insurance Company agent, appeals from a judgment dismissing his complaint against American Family Mutual Insurance Company on summary judgment. Cahoon alleged that American Family wrongfully terminated him and breached its duties of good faith and fair dealing. American Family terminated Cahoon as a result of unlawful conduct involving a co-worker. We affirm the circuit court’s grant of summary judgment. This opinion will not be published.

2013AP964 Cahoon v. American Family Mutual Insurance Company et al.

Dist II, Winnebago County, Jorgensen, J., Per Curiam

Attorneys: For Appellant: Hammes, James W., Waukesha; For Respondent: Munson, Earl H., Jr., Madison; Zylstra, Sarah A., Madison

Wisconsin Court of Appeals

Civil
Contracts — unconscionability

In this collection case, Leasing Services, LLC, appeals from an order denying its motion for summary judgment and granting the summary judgment motion of Machinist AFL- CIO Lodge 6S (“the Union”). The circuit court concluded that the equipment lease between the parties was unconscionable at its inception. We disagree and reverse. This opinion will not be published.

2013AP2223 Leasing Services LLC v. Machinist AFL-CIO Lodge 6S

Dist II, Washington County, Muehlbauer, J., Per Curiam

Attorneys: For Appellant: Brady, Joshua J., Milwaukee; For Respondent: Plantinga, Victor, Milwaukee

Wisconsin Court of Appeals

Civil
Property — eminent domain — highway access

Hoffer Properties, LLC (“Hoffer”) appeals a judgment of the circuit court granting Hoffer’s motion to voluntarily dismiss this condemnation review action after the court entered partial summary judgment in favor of the Department of Transportation. Hoffer argues on appeal that, whenever DOT eliminates a property’s direct access to a controlled-access highway, DOT must pay reasonable compensation to the property owner if a jury determines that the replacement access is not reasonable. Hoffer also argues that DOT lacks authority to deny a driveway permit application made by a property owner abutting a controlled-access highway solely on the basis of the owner’s intended use of the property. For the reasons set forth below, we affirm the judgment of the circuit court. This opinion will not be published.

2012AP2520 Hoffer Properties LLC v. State of Wisconsin Department of Transportation

Dist IV, Jefferson County, Hue, J., Per Curiam

Attorneys: For Appellant: Southwick, Benjamin, Richland Center; For Respondent: Potts, Abigail, Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — blood draws

Douglas Bethke appeals from his convictions for operating a vehicle while intoxicated and with a prohibited alcohol concentration. Bethke claims that there is no evidence that a “medical technologist” or a “person acting under the direction of a physician,” per Wis. Stat. § 343.305(5)(b), performed the blood draw that helped establish he was driving while impaired by a prohibited blood alcohol level. Bethke also claims that the circuit court erred in excluding evidence of lab errors by the state lab that happened years before Bethke’s blood sample was tested.

The record shows that the person who drew Bethke’s blood was a “medical technologist.” And the circuit court did not erroneously exercise its discretion, nor violate Bethke’s constitutional rights, when it excluded evidence of particular lab errors that happened years before Bethke’s blood sample was analyzed. We affirm. This opinion will not be published.

2013AP2297 County of Fond du Lac v. Bethke

Dist II, Fond du Lac County, Grimm, J., Brown, C.J.

Attorneys: For Appellant: Cohen, Barry S., Elkhart Lake; For Respondent: Leusink, Matthew R., Fond du Lac

Wisconsin Court of Appeals

Criminal
Criminal Procedure – joinder — common plan or scheme

In these consolidated appeals, Jonathan L. Gurath appeals from judgments of conviction and an order denying his motion for postconviction relief. He contends that (1) there was insufficient evidence to support his conviction for second-degree sexual assault of a child, (2) the circuit court erroneously exercised its discretion in denying his motion to sever the sexual assault charge from two drug possession charges, (3) the circuit court erroneously exercised its discretion in allowing a state expert witness to render an opinion as to whether the sexual assault victim was drugged, and (4) the circuit court erroneously exercised its discretion in sentencing him on the sexual assault charge. We reject Gurath’s claims and affirm the judgments and order. This opinion will not be published.

2013AP1305-CR, 2013AP1306-CR State v. Gurath

Dist II, Fond du Lac County, Wirtz, J., Per Curiam

Attorneys: For Appellant: Boyle, Gerald P., Milwaukee; Boyle, Bridget E., Milwaukee; For Respondent: O’Brien, Daniel J., Madison; Toney, Eric, Fond du Lac

Wisconsin Court of Appeals

Criminal
Sentencing — sentence credit

Don Summers, pro se, appeals an order denying his motion for additional sentence credit in Barron County Circuit Court case No. 2005CF18. We reject Summers’ arguments and affirm the order. This opinion will not be published.

2013AP2114-CR, 2013AP2115-CR State v. Summers

Dist III, Barron County, Babler, J., Per Curiam

Attorneys: For Appellant: Summers, Don M., pro se; For Respondent: Beranek, Angela L., Barron; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Michael S. Dengsavang appeals a judgment convicting him of attempted first-degree intentional homicide, armed robbery with use of force, and burglary-building or dwelling, all as a party to a crime. He also appeals an order denying his motion for postconviction relief. We conclude Dengsavang was entitled to a Machner hearing on his claim that his trial counsel gave him ineffective assistance when he opened the door to otherwise excluded shoe-print report evidence. Affirmed in part, reverse in part and remand for further proceedings. This opinion will not be published.

2013AP1573-CR State v. Dengsavang

Dist I, Milwaukee County, Dallet, Brostrom, JJ., Per Curiam

Attorneys: For Appellant: Alderman, Kimberly L., Madison; For Respondent: Loebel, Karen A., Milwaukee; Pray, Eileen W., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — Miranda warnings

Brandon D Andre Burnside appeals a judgment entered after a jury found him guilty of first-degree intentional homicide while using a dangerous weapon, and an order denying his motion for postconviction relief. Burnside argues that: (1) the trial court should have granted his motion to suppress statements he made before police told him his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (2) the police used unreliable procedures during the line-ups where witnesses identified him as the person who shot and killed the victim, Bryan Drake; (3) the trial court should not have allowed the jury to see the autopsy photographs; (4) his lawyer gave him constitutionally deficient representation; and (5) the trial court should have granted his postconviction motion asking for DNA tests on shirts found at the crime scene. We reverse on the first issue and therefore do not address the other issues because there must be a new trial, and the circuit court will be able to re-address those issues ab initio on remand. Not recommended for publication in the official reports.

2013AP1293-CR State v. Burnside

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

Attorneys: For Appellant: Swartz, Melinda A., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal
Sentencing — costs

Gerald Crowe appeals amended judgments of conviction that added statutorily mandated costs. He also appeals a judgment for unpaid fines, forfeitures, and other financial obligations. When the circuit court granted relief pending appeal, it noted errors in the amended judgments. This court retained jurisdiction and remanded the matter to the circuit court to correct the errors pursuant to Wis. Stat. § 808.075(6) (2011-12). The court corrected the judgments and Crowe has not filed an objection to the revised judgments as allowed by § 808.075(8). Therefore, we review the amended judgments as revised on remand. Crowe contends the circuit court lacked authority to impose statutorily mandated costs that were not imposed at the time of sentencing. We reject that argument and affirm the judgments as amended on remand. However, because the subsequent judgment for unpaid costs may be affected by the revisions made on remand, and we are unable to determine the correct amount owed from the record before this court, we vacate the Dec. 26, 2012 judgment for unpaid costs. Judgments affirmed; vacated. This opinion will not be published.

2013AP107-CR State v. Crowe

Dist III, Sawyer County, Wright, J., Per Curiam

Attorneys: For Appellant: Crowe, Gerald Allen, pro se; For Respondent: Noet, Nancy A., Madison; Poquette, Bruce R., Hayward

Wisconsin Court of Appeals

Criminal
Controlled Substances — prior convictions

A federal RICO conviction is a prior controlled substances conviction under Wis. Stats. Sec. 961.41.

“To sum up, there are many, many ways that a person may violate 18 U.S.C. §§1962(c) & (d). Accordingly, the provisions, which incorporate the expansive definition of ‘racketeering activity,’ are ‘divisible,’ and this permits use of the modified categorical approach. Thus, the circuit court and we may look at the indictment to which Guarnero pled guilty as well as his plea-bargained acknowledgment that he was ‘in fact, guilty of the offense’ set out in Count Two of the indictment. Guarnero’s contention that his guilty plea to Count Two was therefore not a plea to a crime under a ‘statute of the United States … relating to controlled substances,’ as required by WIS. STAT. § 961.41(3g)(c), is without merit.”

Affirmed.

Recommended for publication in the official reports.

2013AP1753-CR & 2013AP1754-CR State v. Guarnero

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

Attorneys: For Appellant: Eddington, Robert J., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sara Lynn, Madison

U.S. Supreme Court

Civil
Environmental Law — Clean Air Act

The CAA does not command that States be given a second opportunity to file a SIP after EPA has quantified the State’s interstate pollution obligations.

The fact that EPA had previously accorded upwind States a chance to allocate emission budgets among their in-state sources does not show that the Agency acted arbitrarily by refraining to do so here. EPA retained discretion to alter its course provided it gave a reasonable explanation for doing so. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 42. Here, the Agency had been admonished by the D. C. Circuit to act with dispatch in amending or replacing CAIR. Endeavoring to satisfy that directive, EPA acted speedily, issuing FIPs and the Transport Rule contemporaneously.

696 F. 3d 7, reversed and remanded.

12-1182 & 12-1183 EPA v. EME Homer City Generation L.P.

Ginsburg, J.; Scalia, J., dissenting.

U.S. Supreme Court

Civil
Intellectual Property – patents — attorney fees

All aspects of a district court’s exceptional-case determination under sec. 285 should be reviewed for abuse of discretion.

Prior to Octane Fitness, LLC v. ICON Health & Fitness, Inc., ante, p. ___, this determination was governed by the framework established by the Federal Circuit in Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378. Octane rejects the Brooks Furniture framework as unduly rigid and holds that district courts may make the exceptional case determination under §285 in the exercise of their discretion. The holding in Octane settles this case. Decisions on “matters of discretion” are traditionally “reviewable for ‘abuse of discretion,’ ” Pierce v. Underwood, 487 U. S. 552, 558, and this Court previously has held that to be the proper standard of review in cases involving similar determinations, see, e.g., id., at 559; Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 405. The exceptional-case determination is based on statutory text that “emphasizes the fact that the determination is for the district court,” Pierce, 487 U. S., at 559; that court “is better positioned” to make the determination, id., at 560; and the determination is “multifarious and novel,” not susceptible to “useful generalization” of the sort that de novo review provides, and “likely to profit from the experience that an abuse-of discretion rule will permit to develop,” id., at 562.

687 F. 3d 1300, vacated and remanded.

12-1163 Highmark Inc. v. Allcare Health Management System Inc.

Sotomayor, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — costs

A party entitled to costs is not required to alert the district court that his ruling is due, or forfeit their rights.

“Nagging judges to act on motions under advisement is not essential to preserving one’s rights. The court’s docket-tracking software, and each judge’s duty to report every six months on all motions under advisement, are designed to keep matters moving without the need for litigants to communicate impatience. Their shortcomings do not oblige litigants to supplement them with ticklers. The decisions on which plaintiffs rely, such as In re Plunkett, 82 F.3d 738, 742 (7th Cir. 1996), and Zelazny v. Lyng, 853 F.2d 540 (7th Cir. 1988), deal with delay in filing suits or motions, not with litigants’ silence after matters are under advisement. At oral argument, plaintiffs’ lawyer candidly admitted that she did not know of any decision, by any court, creating a badger-the-judge-or-forfeit-the-motion requirement; our search did not turn one up. We will not be the first. The obligation to render timely rulings rests on the judiciary, not the parties. This litigation has lasted far too long. At last it is over.”

Affirmed.

13-2197 NOW Inc. v. Scheidler

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Easterbrook, J.

U.S. Supreme Court

Civil
Intellectual Property – patents — attorney fees

The Brooks Furniture framework is unduly rigid and impermissibly encumbers the statutory grant of discretion to district courts.

Brooks Furniture is too restrictive in defining the two categories of cases in which fee awards are allowed. The first category — cases involving litigation or certain other misconductv—vappears to extend largely to independently sanctionable conduct. But that is not the appropriate benchmark. A district court may award fees in the rare case in which a party’s unreasonable, though not independently sanctionable, conduct is so “exceptional” as to justify an award. For litigation to fall within the second category, a district court must determine that the litigation is both objectively baseless and brought in subjective bad faith. But a case presenting either subjective bad faith or exceptionally meritless claims may sufficiently set itself a part from mine-run cases to be “exceptional.” The Federal Circuit imported this second category from Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49, but that case’s standard finds no roots in §285’s text and makes little sense in the context of the exceptional-case determination.

496 Fed. Appx. 57, reversed and remanded.

12-1184 Octane Fitness LLC v. Icon Health & Fitness Inc.

Sotomayor, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Employment — age discrimination

Where the employer selectively enforced its policies, summary judgment was improperly granted in its favor on an employee’s age discrimination claim.

“We conclude that the selective enforcement of Macon Resources’s reporting policy, combined with the inconsistencies in distinguishing Baker from Cross, can support pretext. This pretext evidence could lead a jury reasonably to believe that age is the true reason that it fired Baker but retained the younger Cross after both violated the same company rule. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (‘Proof that the defendant’s explanation is unworthy of credence is … probative of intentional discrimination, and it may be quite persuasive.’); Filar v. Bd. of Educ. of City of Chi., 526 F.3d 1054, 1064–65 (7th Cir. 2008) (‘Because the only salient difference between [the plaintiff] and the younger teachers was age, a jury could conclude that age motivated [the employer’s] decisions.’). Accordingly, the case must be tried.”

Reversed and Remanded.

13-3324 Baker v. Macon Resources Inc.

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

U.S. Court of Appeals for the 7th Circuit

Civil
Securities — sanctions

A lifetime ban from the securities markets was not an abuse of discretion where the petitioner failed to supervise inferiors engaged in churning account.

“Basically, Birkelbach asserts that the NAC ‘punished [him] for exercising his right to … appeal a wrongful decision’ from the hearing panel. (Appellee Reply Br. 14.) However, Birkelbach does not cite a rule, statute, constitutional provision, court case, or anything else which suggests that the SEC lacked the authority to affirm the increase of his sanction on appeal. As the SEC pointed out in its opinion, the NAC performs a de novo review of the entire record and may even take new evidence in certain circumstances. See FINRA Rule 9346; see also NASD Rule 9346 (retired). The FINRA rules specifically put those considering an appeal on notice that the NAC ‘may affirm, dismiss, modify, or reverse with respect to each finding, or remand the disciplinary proceeding with instructions.’ FINRA Rule 9348; see also NASD Rule 9348 (retired). Indeed, the rule goes on to state that the NAC ‘may affirm, modify, reverse, increase, or reduce any sanction, or impose any other fitting sanction.’ FINRA Rule 9348 (emphasis added); see also NASD Rule 9348 (retired). Birkelbach was certainly on notice that he risked an increase of his sanction should he take an appeal to that body. Finally, the SEC noted in its opinion that Birkelbach acknowledged to the NAC that it could increase his sanction, and thus his argument that he was ‘somehow blindsided by the increase rings hollow,’ William J. Murphy, 2013 WL 3327752, at *28 n.164, which he does not deny or rebut in his petition to this Court. Accordingly, we conclude that the SEC did not abuse its discretion in affirming the NAC’s decision to increase the sanction from a suspension to a lifetime bar in all capacities.”

Petition Denied.

13-2896 Birkelbach v. SEC

Petition for Review of an Order of the Securities and Exchange Commission, Kapala, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Environmental Law – CERCLA — attorney fees

A plaintiff in a CERCLA action does not become a prevailing party when her lawsuit brings about a voluntary change in the defendant’s conduct without a court order that materially alters the legal relationship between the parties.

“This circuit has adopted ‘a strong presumption that Buckhannon applies to each fee-shifting statute that awards fees to “prevailing parties.”’ T.D. v. LaGrange School District No. 102, 349 F.3d 469, 475 (7th Cir. 2003). For Buckhannon not to apply, the text, structure or legislative history of a particular statute must clearly indicate a different definition of ‘prevailing party.’ Id. Nothing in the text, structure, or legislative history of CERCLA clearly indicates that we should interpret its fee-shifting provision differently from that in Buckhannon, so we see no reason why it should not apply here. See City of Waukesha v. PDQ Food Stores, Inc., 500 F. Supp. 2d 1119, 1122 (E.D. Wisc. 2007) (applying Buckhannon to CERCLA’s fee-shifting provision); Lucia A. Silecchia, The Catalyst Calamity: Post-Buckhannon Fee-Shifting in Environmental Litigation and a Proposal for Congressional Action, 29 Colum. J. Envtl. L. 1 (2004) (assuming Buckhannon applies to fee-shifting under CERCLA and calling for legislation).”

Affirmed.

13-2142 Frey v. EPA

Appeal from the United States District Court for the Southern District of Indiana, Young, J., Hamilton, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — prisoner litigation — appointed counsel

Where a prisoner’s deliberate indifference claim was not complex, the district court did not abuse its discretion in denying his requests for the court to recruit counsel.

“We find no abuse of discretion in the court’s decision not to recruit counsel for Olson; the district court applied the correct legal standard and properly considered both Olson’s ability to represent himself and the complexity of Olson’s case. Summary judgment was proper because there is no evidence that Sergeant Schneider was subjectively aware that Russell was dangerous or that Tenebruso failed to act promptly once she learned of Olson’s serious medical needs. Because Olson has no evidence to prove deliberate indifference, his claims must fail.”

Affirmed.

12-2786 Olson v. Morgan

Appeal from the United States District Court for the Western District of Wisconsin, Crocker, Mag. J., Sykes, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Criminal Procedure — prosecutorial misconduct

It was not misconduct in a prosecution for conspiracy to defraud the United States, for the prosecutor to use the word “fraud” to describe the conduct, even though the witnesses did not use that term.

“Considering the prosecutor’s statements in context, see United States v. Roe, 210 F.3d 741, 747 (7th Cir. 2000), we conclude that he did not misrepresent the visa recipients’ testimony. Although the witnesses did not say ‘fraud,’ even Haldar’s lawyer candidly acknowledged in his own closing argument that what they described was fraud. The prosecutor’s argument was certainly fair comment on the evidence. And the prosecutor’s ‘no training’ statement, while not precise, was a permissible shorthand reminder of the witnesses’ testimony that their training was meant to enable them only to pass for priests rather than to work as priests. Again, we find no prosecutorial misconduct.”

Affirmed.

13-1238 U.S. v. Haldar

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Hamilton, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Search and Seizure — search warrants — staleness

Where a child alleged that the defendant had molested and taken nude photographs of her five years earlier, the search warrant was not stale.

“The facts presented to the issuing judge distinguish this case from Prideaux-Wentz and demonstrate a likelihood of retention that was greater than could be expected in the normal child pornography case. Not only was Carroll the producer of the child pornography sought, but the images were of the bare genitals of the victim, whom he had personally molested. While pornographic images of anonymous children could be replaced with images of other anonymous children, Carroll’s images of the eight-year-old victim were irreplaceable to him. Under these circumstances, it was fair for the issuing judge to infer that Carroll would highly value the images of the victim and retain them on some type of digital media for a very long time.”

Affirmed.

13-2600 U.S. v. Carroll

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Kapala, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Criminal Procedure — in-court identifications

The passage of nine months between a crime and a witness’ selection of the defendant from a photo array does not render the identification inadmissible.

“Considering all of the factors, we do not find this testimony to be unreliable. Although Johnson’s lack of attention to Lee on the night of the shooting and the extended duration of time between their initial encounter and the identification raise some concern, the testimony was nonetheless constitutionally reliable when considered with the other Biggers factors. Certainly Johnson’s testimony was not received without some flaws, as is most evidence that is properly examined, but these are issues for the jury to decide in weighing any questionable discrepancies. Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (‘[E]vidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.’) Accordingly, we find no error.”

Affirmed.

13-1314 Lee v. Foster

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Kanne, J.