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Weekly Case Digests — June 16-20, 2014

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2014//

Weekly Case Digests — June 16-20, 2014

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2014//

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Wisconsin Law Journal’s Case Digests, June 16-20, 2014 

CIVIL PROCEDURE

U.S. Supreme Court
Civil Procedure — sovereign immunity

The FSIA does not immunize a foreign-sovereign judgment debtor from postjudgment discovery of information concerning its extraterritorial assets.

The FSIA replaced an executive-driven, factor-intensive, loosely common-law-based immunity regime with “a comprehensive framework for resolving any claim of sovereign immunity.” Republic of Austria v. Altmann, 541 U. S. 677, 699. Henceforth, any sort of immunity defense made by a foreign sovereign in an American court must stand or fall on the Act’s text. The Act confers on foreign states two kinds of immunity. The first, jurisdictional immunity (28 U. S. C. §1604), was waived here. The second, execution immunity, generally shields “property in the United States of a foreign state” from attachment, arrest, and execution. §§1609, 1610. See also §1611(a), (b)(1), (b)(2). The Act has no third provision forbidding or limiting discovery in aid of execution of a foreign-sovereign judgment debtor’s assets. Far from containing the “plain statement” necessary to preclude application of federal discovery rules, Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 539, the Act says not a word about postjudgment discovery in aid of execution.

695 F. 3d 201, affirmed.

12-842 Republic of Argentina v. NML Capital Ltd.

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

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

Civil Procedure
discovery

Where documents were not in the defendant’s possession, the plaintiff’s request to compel discovery was properly denied.

“Thermal sought discovery of numerous records from ASHRAE committee members. It contends that the documents, though not in ASHRAE’s possession, were nonetheless in its control and were therefore discoverable under Federal Rule of Civil Procedure 34(a). Thermal believes that ASHRAE had control over the documents of its agents to compel discovery. We disagree. The district court found that Thermal’s evidentiary submissions failed to prove ASHRAE had sufficient control over the documents so as to warrant the motion to compel discovery. See Dexia Credit Local v. Rogan, 231 F.R.D. 538, 542 (N.D. Ill. 2004) (On the issue of control, ‘the test is whether the party has a legal right to obtain [the evidence].’ (quotation marks omitted)). The court considered Thermal’s request to produce the documents but found that Thermal did not show that ASHRAE had adequate control over the documents to compel discovery. Moreover, after more than five years of discovery, the court found that discovery had reached its logical end, a finding that we give substantial discretion. Corley, 142 F.3d at 1052 (‘District judges enjoy broad discretion in settling discovery disputes and in delimiting the scope of discovery in a given case.’). We find no abuse of discretion.”

Affirmed.

13-2519 Thermal Design Inc. v. American Society of Heating Refrigerating & Air-Conditioning Engineers Inc.

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

U.S. Supreme Court

Civil Procedure
ripeness — First Amendment

Petitioners have standing to raise a First Amendment challenge to a state statute prohibiting false statements during an election.

Petitioners’ intended future conduct is also “arguably . . . proscribed by [the] statute.” The Ohio false statement statute sweeps broadly, and a panel of the Ohio Elections Commission already found probable cause to believe that SBA violated the law when it made statements similar to those petitioners plan to make in the future. Golden v. Zwickler, 394 U. S. 103, is distinguishable; the threat of prosecution under an electoral leafletting ban in that case was wholly conjectural because the plaintiff’s “sole concern” related to a former Congressman who was unlikely to run for office again. Here, by contrast, petitioners’ speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. Nor does SBA’s insistence that its previous statements were true render its fears of enforcement misplaced. After all, that insistence did not prevent the Commission from finding probable cause for a violation the first time.

525 Fed. Appx. 415, reversed and remanded.

13-193 Susan B. Anthony List v. Driehaus

Thomas, J.

CIVIL RIGHTS

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

Civil Rights
qualified immunity

Where the plaintiff was reported to be driving a car while holding an unholstered firearm, the officer who arrested him for disorderly conduct is entitled to qualified immunity on the driver’s wrongful arrest claim.

“We think it would be imprudent to base our decision on speculation about the appropriate scope of the Wisconsin statute. In our view, the second section of the disorderly conduct statute poses significant interpretative problems that are best answered by the Supreme Court of Wisconsin. Including the conduct at issue here within the scope of subsection 947.01(2) would no doubt have significant ramifications on issues of state and municipal governance in matters of public safety. In this age of ‘road rage’ and similar motorist misbehavior, an individual’s driving around at a high speed while holding an unholstered weapon in plain view of other motorists raises serious issues of public safety. Whether such activity constitutes merely ‘carrying[] or going armed’ should be decided, if at all possible, by a state court far more familiar with the exigencies of state and local governance and far more familiar with the legislative practice of its state. If it were necessary to construe the problematic statutory language in order to resolve this case, we well might consider using the certification privilege accorded to us by the Wisconsin legislature. However, such a necessity is not upon us since the second prong of the established qualified immunity analysis affords a solid basis for decision. ‘[I]t is apparent that the alleged right at issue [was] not clearly established’ at the time Officer Lomas acted. Catlin v. City of Wheaton, 574 F.3d 361, 365 (7th Cir. 2009).”

Reversed and Remanded.

13-3121 Gibbs v. Lomas

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

DEBTOR-CREDITOR

Wisconsin Court of Appeals
Debtor-Creditor – garnishment — jurisdiction

Jeff Mizinski appeals orders denying his motion to quash an earnings garnishment and his motion for reconsideration. Mizinski argues the circuit court lacked in rem jurisdiction to garnish his wages because the wages were not located in the state of Wisconsin. However, we conclude in rem jurisdiction over the wages was not required. Pursuant to Dalton v. Meister, 71 Wis. 2d 504, 239 N.W.2d 9 (1976), the circuit court could properly issue an in personam order directing Mizinski’s employer to remit a portion of his wages to Midland Funding, LLC, the entity that filed the garnishment. We therefore affirm. Not recommended for publication in the official reports.

2013AP2422 Midland Funding LLC v. Mizinski et al.

Dist III, St. Croix County, Lundell, J., Stark, J.

Attorneys: For Appellant: Crandall, Eric L., New Richmond; For Respondent: Ambrosh, David A., Milwaukee; White, Kevin T., Milwaukee; McCool, Alexandria E., Milwaukee

FAMILY

Wisconsin Court of Appeals
Family – maintenance — modification

Jayne Cherkasky appeals an order modifying maintenance payments from her ex-husband, Alan Cherkasky. Jayne argues that there was no substantial change in circumstances and, alternatively, that a decrease in maintenance was not warranted. We conclude there was a substantial change in circumstances. However, we further hold the court relied on an improper factor when determining maintenance, and inadequately set forth its rationale for reducing maintenance and terminating it on a date-certain. Accordingly, we remand for a proper exercise of discretion regarding the modification of maintenance. This opinion will not be published.

2013AP1762 In re the marriage of: Cherkasky v. Cherkasky

Dist III, Outagamie County, Krueger, J., Per Curiam

Attorneys: For Appellant: Hammett, William J., Neenah; For Respondent: Loomis, Robert B., Appleton

Wisconsin Court of Appeals
Family — child support — imputed income — contempt

In this post-divorce judgment action, Michael Becker appeals circuit court orders setting child support, awarding attorney’s fees to DeAnn Becker, and finding Michael in contempt for not making child support payments. Michael contends that the circuit court erred in determining child support by imputing income to Michael based on his earning capacity as a cardiologist rather than by relying on his self-reported lack of income from his current cardiology practice, and that the court consequently erred in finding him in contempt for nonpayment of child support and in requiring that he pay DeAnn’s attorney’s fees. We conclude that the court followed the correct legal standard in setting child support by imputing income to Michael based on his earning capacity as a cardiologist, and that the evidence sufficiently supports the circuit court’s determination that Michael’s “decision … to operate the profitless business [was] voluntarily done and unreasonable.” Accordingly, we affirm. Not recommended for publication in the official reports.

2013AP1481 In re the marriage of: Becker v. Becker

Dist I, Milwaukee County, Murray, J., Kloppenburg, J.

Attorneys: For Appellant: St. John, Thomas W., Milwaukee; Peltz, Joseph M., Milwaukee; For Respondent: Peckerman, Bruce M., Milwaukee; Van Kirk, Jennifer J., Milwaukee

IMMIGRATION

U.S. Court of Appeals for the 7th Circuit
Immigration – asylum — Indonesia

Chinese Christians in Indonesia do not suffer persecution sufficient to justify asylum.

“Though religious conflict persists in Indonesia, its government has notably taken steps to protect its citizens and promote religious tolerance. Respect for religious freedom in Indonesia appears to have improved since 2004 when the Fifth Circuit held that there was clear evidence that the Christian petitioners had an objective fear of future persecution based on their faith under the present conditions of civil unrest. Eduard v. Ashcroft, 379 F.3d 182, 191 (5th Cir. 2004) (reversed and remanded because ‘[a] review of the record indicate[d] that Petitioners’ fears of persecution were based on their Christian faith in particular, and Indonesian civil strife in general.’). In this case, the evidence indicates that the Indonesian government neither implemented nor permitted others to systematically and pervasively persecute Christians. To the contrary, the evidence shows that local and national government took actions to improve religious freedoms for Christians and other faiths. Therefore, substantial evidence in the record supported the IJ’s and BIA’s determinations that the Indonesian government does not allow a pattern or practice of persecuting Christians.”

Petition Denied.

14-1024 Halim v. Holder

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

INSURANCE

Wisconsin Court of Appeals
Insurance — duty to defend — intentional acts exclusion

Basil E. Ryan, Jr., d/b/a Ryan Management Inc., Basil E. Ryan, Jr., individually, Basil E. Ryan, III, and Blake Ryan (collectively, the Ryans) appeal a declaratory and summary judgment in favor of American Family Mutual Insurance Company. The circuit court concluded that American Family had no duty to defend the Ryans against claims alleged in a civil complaint filed by Pumpkin, Inc., Glen Roethle, and Susan Joy Roethle. We affirm. This opinion will not be published.

2013AP1320 Pumpkin Inc. et al. v. Ryan et al.

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

Attorneys: For Appellant: Tornehl, Walter T., Milwaukee; La Fleur, Catherine A., Milwaukee; For Respondent: Mingo, Mark J., Milwaukee

Wisconsin Court of Appeals
Insurance — health insurance — immunity

Kristine Stellmach appeals a summary judgment dismissing Stellmach’s action against Wisconsin Health Insurance Risk-Sharing Plan Authority (HIRSP). Stellmach argues that HIRSP was not entitled to summary judgment on statutory immunity grounds. We conclude that the circuit court properly granted summary judgment to HIRSP. Accordingly, we affirm. This opinion will not be published.

2013AP870 Stellmach v. Wisconsin Health Insurance Risk-Sharing Plan

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

Attorneys: For Appellant: Ogorchock, Thomas A., Milwaukee; For Respondent: Friedman, James, Madison

INTELLECTUAL PROPERTY

U.S. Supreme Court
Intellectual property — patents

Claims drawn to an abstract idea are not patent eligible.

Because petitioner’s system and media claims add nothing of substance to the underlying abstract idea, they too are patent ineligible under §101. Petitioner conceded below that its media claims rise or fall with its method claims. And the system claims are no different in substance from the method claims. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] . . . against” interpreting §101 “in ways that make patent eligibility ‘depend simply on the draftsman’s art.’ ”Mayo, supra, at ___. Holding that the system claims are patent eligible would have exactly that result.

717 F. 3d 1269, affirmed.

13-298 Alice Corporation Pty. Ltd. V. CLS Bank Int’l.

Thomas, J., Sotomayor, J., concurring.

LABOR AND EMPLOYMENT

U.S. Court of Appeals for the 7th Circuit
Employment – race discrimination

Even if an employer considered race in making a promotion, the employer is entitled to summary judgment on the plaintiffs’ race discrimination claim, where they cannot show that either of them would have received the promotion absent the consideration of race.

“Under the direct method, the case at hand is trickier than Bass, where the plaintiff “presented no — literally no — evidence that her firing was for a prohibited reason.” Id. Here, there is evidence that White’s promotion was based on the prohibited consideration of his race. Evidence, too, that Murray’s sudden change of fortunes was due to Murray’s race — Jones admitted as much. But we are skeptical that the evidence that White was promoted based on his race, or the fact that Murray did not receive the promotion based on his, could be used by a reasonable jury in service of the conclusion that Garofalo and Peers were not promoted because of their race. There is no specific evidence, as it relates to Garofalo or Peers, “that would allow a trier of fact to find that [race] discrimination lay behind” the Village’s decision not to promote the Plaintiff-Appellants. Id. As pertains to the two Plaintiff-Appellants, “the record contains neither explicit declarations of a discriminatory motive nor sufficient circumstantial evidence for a rational jury to infer discrimination.” See Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154, 1157 (7th Cir. 2014). Plaintiff-Appellants argue that they have presented evidence of Murray’s shortcomings, and that they have established that his chance at the promotion, absent Jones’s impermissible considerations of race, was not a sure thing. But that is negative evidence that may lead a juror to conclude that Murray would not have gotten the promotion. Even construing that evidence in the light most favorable to Garofalo and Peers, there is no affirmative evidence on which a reasonable juror could — absent speculation or conjecture — decide that Garofalo or Peers would have received the promotion absent the impermissible consideration of race.”

Affirmed.

12-1668 & 12-1681 Garofalo v. Village of Hazel Crest

Appeals from the United States District Court for the Northern District of Illinois, Hart, J., Tinder, J.

U.S. Supreme Court
Employment – public employment — free speech

A public employee’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection.

Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer. The Eleventh Circuit read Garcetti far too broadly in holding that Lane did not speak as a citizen when he testified simply because he learned of the subject matter of that testimony in the course of his employment. Garcetti said nothing about speech that relates to public employment or concerns information learned in the course of that employment. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. Indeed, speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.

523 Fed. Appx. 709, affirmed in part, reversed in part, and remanded.

13-483 Lane v. Franks

Sotomayor, J. Thomas, J., concurring.

Wisconsin Court of Appeals
Employment – workers’ compensation — competency

Linda Stewart appeals a decision of the Labor and Industry Review Commission that: (1) sets aside part of an earlier order of the Commission regarding worker’s compensation, and (2) remands the matter back to the Department of Workforce Development for an additional evidentiary hearing. Stewart contends that the Commission acted outside its authority in ordering the remand because the trial court already ordered the Commission’s earlier order to be reversed — not remanded for further proceedings. Neither party appealed the trial court’s decision; rather, the Commission, acting in response to a letter from counsel for Stewart’s employer, decided that what the trial court meant to do, despite clear language to the contrary, was remand the case for further proceedings. We agree with Stewart that the Commission acted outside its authority and reverse. Not recommended for publication in the official reports.

2013AP1941 Stewart v. Labor and Industry Review Commission et al.

Dist I, Milwaukee County, Van Grunsven, J., Curley, P.J.

Attorneys: For Appellant: Layber, Lynne, Brookfield; For Respondent: Kilpatrick, Steven C., Madison; Kania, David J., Milwaukee; Kania, David J., Milwaukee

U.S. Court of Appeals for the 7th Circuit
Employment — public employment

A county employee doing seasonal highway work does not have a property interest in his employment.

“Viewing Chippewa County Ordinance § 48.62 as a whole, it governs the disciplining of County employees. The ordinance gives a non-exhaustive list of work rules, that, if violated, could lead to certain disciplinary actions, including verbal warnings, written reprimands, suspension without pay, or discharge. It makes clear that the list of work rule in-fractions justifying discipline provides ‘some examples.’ Also, the ordinance allows for the different Chippewa County departments, such as the Highway Department where Kvapil worked, to add work rules to the list. Chippewa County Ordinance § 48.63, entitled ‘Discipline Recommended’, gives further guidance to administering the County-wide work rules highlighted in § 48.62. Accordingly, we agree with the district court that Chippewa County Ordinances §§ 48.62 and 48.63 are procedural guidelines for Chippewa County supervisors to facilitate consistent discipline County-wide. These ordinances do not provide Kvapil with a legitimate claim of entitlement to continued employment. See Roth, 408 U.S. at 577.”

Affirmed.

13-2658 Kvapil v. Chippewa County

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., St. Eve, J.

U.S. Court of Appeals for the 7th Circuit
Employment — ERISA

Section 206(d)(1) of ERISA does not prevent the attachment or garnishment of funds after a pension plan has paid them to retirees.

ERISA differs from statutes that do cover who can access funds after payment. For example, the Veterans Benefits Act, 38 U.S.C. §5301(a), prohibits attachment of benefits ‘either before or after receipt by the beneficiary.’ And the Social Security Act, 42 U.S.C. §407(a), provides that ‘none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.’ Because that language covers funds ‘paid’ as well as money ‘payable’, the Supreme Court concluded that it applies to funds that can be traced to Social Security benefits. Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973). Likewise 45 U.S.C. §231m(a), part of the Railroad Retirement Act and the subject of Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979), has a broad temporal reach. The Fourth Circuit in Smith relied on Hisquierdo but missed the point that ERISA is worded differently from the Social Security Act and the Railroad Retirement Act.”

So Ordered.

05-1362 & 05-4075 NLRB v. HH3 Trucking Inc.

On Motion to Set a Remedy for Civil Contempt of Court, Easterbrook, J.

U.S. Court of Appeals for the 7th Circuit
Employment — race discrimination

Where an employee failed to meet his employer’s reasonable expectations, his termination was not race discrimination.

“All three of Huang’s arguments are meritless. First, employers are entitled to determine their scheduling needs, see Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1035 (7th Cir. 1999), and decide whether employees are satisfying them, see Collins v. American Red Cross, 715 F.3d 994, 1000 (7th Cir. 2013); Naik v. Boehringer Ingelheim Pharm., Inc., 627 F.3d 596, 600 (7th Cir. 2010). Huang’s offer to work Sundays could not satisfy CNA’s needs because the company needed him on call throughout all of Sunday and Saturday, and he refused to comply. Second, although a longing to spend more time with family is understandable, it does not undermine the legitimacy of a work schedule that cuts into family time. Grube v. Lau Indus. Inc., 257 F.3d 723, 729 (7th Cir. 2001). Nor does Huang’s preference for home life invalidate CNA’s conclusion that Huang did not meet the company’s work expectations. See Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1091–92 (7th Cir. 2000). Finally, CNA need not have memorialized its pager duty in a job description to make it a valid employment expectation. Renken v. Gregory, 541 F.3d 769, 773 (7th Cir. 2008) (explaining that ‘[d]etermining what falls within the scope of an employee’s duties is a practical exercise that focuses on the duties an employee actually is expected to perform’ because ‘[f]ormal job descriptions often bear little resemblance to’ those duties) (internal quotation marks and citation omitted).”

Affirmed.

12-1300 Huang v. Continental Casualty Co.

Appeal from the United States District Court for the Northern District of Illinois, Lindberg, J., Rovner, J.

INTELLECTUAL PROPERTY

U.S. Court of Appeals for the 7th Circuit
Intellectual Property — copyright

It does not violate the copyright of the Arthur Conan Doyle estate to create original works featuring the character of Sherlock Holmes.

“With the net effect on creativity of extending the copyright protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection be-yond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre of perpetual, or at least nearly perpetual, copyright (perpetual copyright would violate the copyright clause of the Constitution, Art. I, § 8, cl. 8, which authorizes copyright protection only for ‘limited Times’) looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.”

Affirmed.

14-1128 Klinger v. Conan Doyle Estate Ltd.

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

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court
Professional Responsibility — revocation

Where attorney Daynel L. Hooker was disciplined in Colorado for 35 counts of misconduct, including practicing law without a licensee, reciprocal revocation in Wisconsin is appropriate.

“Attorney Hooker’s petition for consensual revocation states that she cannot successfully defend against the professional misconduct alleged in the OLR’s unfiled complaint and described in the Colorado disciplinary decision. She states that she is seeking consensual revocation freely, voluntarily, and knowingly. She confirms her understanding that she is giving up her right to contest the OLR’s allegations and to have a public hearing at which she could present evidence in her defense. She further acknowledges that she has been given the opportunity to consult with counsel and that she has declined to do so.”

2014AP28-D OLR v. Hooker

Per Curiam.

Attorneys: For Appellant: Spoke, Julie Marie, Madison; For Respondent: Hooker, Daynel L., Missouri City, Texas

Wisconsin Supreme Court
Professional Responsibility — public reprimand

Where attorney Elizabeth A. Ewald-Herrick was convicted of four OWI offenses and voluntarily resigned her law license, public reprimand is appropriate.

“After having independently reviewed the record, we adopt the referee’s findings of fact. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We also agree with the referee that those factual findings demonstrate that Attorney Ewald-Herrick committed a criminal act (fourth offense OWI) that reflected adversely on Attorney Ewald-Herrick’s honesty, trustworthiness, or fitness as a lawyer in other respects. See SCR 20:8.4(b); see also In re Disciplinary Proceedings Against Brandt, 2009 WI 43, ¶¶42-45, 317 Wis. 2d 266, 766 N.W.2d 194 (holding that a pattern of multiple OWI convictions can demonstrate a serious lack of respect for the law that reflects adversely on an attorney’s ‘fitness as a lawyer in other respects’ under SCR 20:8.4(b) and can support a public reprimand). We also agree that a public reprimand is appropriate discipline for Attorney Ewald-Herrick’s misconduct in this matter. See Brandt, 317 Wis. 2d 266, ¶45.”

2013AP948-D OLR v. Ewald-Herrick

Per Curiam.

Attorneys: For Complainant: Weigel, William J., Madison; Hendrix, Jonathan E., Madison; For Respondent: Ewald-Herrick, Elizabeth, Hartland

Wisconsin Supreme Court
Professional Responsibility — revocation

Where attorney William J. Grogan committed 33 acts of misconduct, revocation is appropriate.

“Based upon our review of the record, we approve and adopt the referee’s findings of fact and conclusions of law. We determine that the seriousness of Attorney Grogan’s misconduct demonstrates that his law license must be revoked to protect the public, courts, and legal system from the repetition of the misconduct; to impress upon Attorney Grogan the seriousness of his misconduct; and to deter other attorneys from engaging in similar misconduct. We also agree with and adopt the referee’s recommendation that Attorney Grogan be ordered to pay restitution and costs as described above.”

2012AP2361-D OLR v. Grogan

Per Curiam.

Attorneys: For Appellant: St. Ores, Sheryl A., Madison; For Respondent: Grogan, William J., Appleton

PROPERTY

Wisconsin Court of Appeals
Property – foreclosure — fair value

Alexander and Suzanne Rutsch (collectively, “Rutsch”) appeal an “Order Confirming Sale, Satisfying Judgment of Foreclosure and Waiver of Deficiency and Notice of Surplus Proceeds.” Rutsch argues the circuit court erroneously exercised its discretion by confirming the sheriff’s sale. We disagree and affirm the order. This opinion will not be published.

2013AP2113 Associated Bank NA v. Rutsch et al.

Dist III, Chippewa County, Isaacson, J., Per Curiam

Attorneys: For Appellant: Christianson, Joshua D., Menomonie; For Respondent: Cravens, John A., Wausau; Anderson, Mary Susan, Wausau

Wisconsin Court of Appeals
Property — plat approval

The issue presented on appeal by Matthew and Jenny Runkle and others who own homes located on Proverbs Pass (the Owners) is whether the Town of Albany (the Town) accepted Proverbs Pass as a town road by approving and recording a plat that included Proverbs Pass, pursuant to Wis. Stat. § 236.29(2) (2011-12). The circuit court granted summary judgment in favor of the Town, concluding that the Town did not accept the plat and the dedication of Proverbs Pass, and dismissed the action. We conclude that the Town accepted the plat and the dedication of Proverbs Pass. We therefore reverse and remand for further proceedings consistent with this opinion. Not recommended for publication in the official reports.

2012AP2183 Runkle et al. v. Town of Albany

Dist IV, Green County, Beer, J., Higginbotham, J.

Attorneys: For Appellant: Yde, Richard C., Madison; Cochrane, Drew J., Madison; For Respondent: Yanacheck, Timothy J., Madison

Wisconsin Court of Appeals
Property – condominiums — attorney-client privilege

Ronald Fouts appeals an order dismissing his complaint against the Breezy Point Condominium Association and awarding the Association statutory attorney fees. He asserts that, as a director of the Association, he is entitled to review confidential communications between the Association and its attorney regardless of a claim of attorney-client privilege. We conclude the circuit court, in a well-reasoned decision, properly dismissed his complaint and awarded statutory attorney fees. Accordingly, we affirm. Not recommended for publication in the official reports.

2013AP1585 Fouts v. Breezy Point Condominium Association

Dist IV, Dodge County, Bauer, J., Mangerson, J.

Attorneys: For Appellant: Alderman, Kimberly L., Madison; For Respondent: Stewart, Walter R., Madison; Miller, Ethan T., Madison

Wisconsin Court of Appeals
Property – easements — duration

When the 60-year period from the last recording of an easement expires, the easement became unenforceable under Wisconsin law against any subsequent purchaser, regardless of whether the purchaser had actual notice of the easement.

“WISCONSIN STAT. § 893.33 provides no exception to the limitations period for enforcement against a purchaser who had actual notice of the easement. In fact, the Judicial Council Committee’s Note accompanying the statute specifies the opposite: ‘There is no requirement that [a subsequent purchaser for valuable consideration who relies on this statute] be without notice, which is to be contrasted with [WIS. STAT. §] 706.09 of the statutes where periods far shorter than 30 years are specified in many subsections.’ Judicial Council Committee Note, 1979, § 893.33. The interaction between §§ 893.33(6) and 706.09(1)(k) was discussed in more detail in Turner, which explained that the thirty-year ‘title curative’ mechanism of § 706.09(1)(k) is not a statute of limitations but a particular affirmative defense, under which a bona fide purchaser of property who takes the property without any notice of an underlying claim is freed from that claim when the other requirements of § 706.09 are met. See Turner, 268 Wis. 2d 628, ¶16. Section 893.33(6), in contrast, simply states the ‘threshold requirements [for] an action’ to enforce an easement, in all cases. Turner, 268 Wis. 2d 628, ¶¶18, 22.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP2119 TJ Auto LLC v. Mr. Twist Holdings LLC

Dist. II, Kenosha County, Kerkman, J., Brown, J.

TAX

U.S. Supreme Court
Tax — discovery

A taxpayer has a right to conduct an examination of IRS officials regarding their reasons for issuing a summons when he points to specific facts or circumstances plausibly raising an inference of bad faith.

A person receiving a summons is entitled to contest it in an adversarial enforcement proceeding. Donaldson v. United States, 400 U. S. 517, 524. But these proceedings are “summary in nature,” United States v. Stuart, 489 U. S. 353, 369, and the only relevant question is whether the summons was issued in good faith, United States v. Powell, 379 U. S. 48, 56. The balance struck in this Court’s prior cases supports a requirement that a summons objector offer not just naked allegations, but some credible evidence to support his claim of improper motive. Circumstantial evidence can suffice to meet that burden, and a fleshed out case is not demanded: The taxpayer need only present a plausible basis for his charge.

517 Fed. Appx. 689, vacated and remanded.

13-301 U.S. v. Clarke

Kagan, J.

TORTS

Wisconsin Court of Appeals
Torts — legal malpractice

This is a negligence action filed by Cheryl Schmidt p/k/a Cheryl Sellers-Bruring (Schmidt) against her former attorneys, Brian Tillman and Lee Fehr, the Fehr Law Office, and Minnesota Lawyers Mutual Insurance Company, the attorneys’ malpractice liability insurer (collectively, the “defendants”). The attorneys represented Schmidt in connection with the proposed sale of her salon. Schmidt was convicted in a prior criminal action of multiple crimes after she removed and retained property from the salon that belonged to others, allegedly acting on Tillman’s advice. A jury trial was held in this action on whether the attorneys were negligent in their representation of Schmidt. The jury found Tillman and Fehr negligent, and Schmidt contributorily negligent, and that each party’s negligence was a cause of damages suffered by Schmidt. The jury apportioned negligence among the parties and awarded damages.

The defendants argue on appeal that they are entitled to judgment notwithstanding the verdict (JNOV) because the facts as found by the jury do not permit recovery as a matter of law. In support, the defendants rely on: (1) the holding in Fleming v. Threshermen’s Mutual Insurance Co., 131 Wis. 2d 123, 130, 388 N.W.2d 908 (1986), that a negligent tortfeasor is entitled to indemnification from an intentional joint tortfeasor; and (2) public policy considerations. We reject these arguments. Schmidt argues on cross-appeal that the circuit court erred in denying her motion for judgment on the verdict, arguing that, under the doctrine of respondeat superior, Fehr should be liable for his own negligence as well as the negligence attributed to Tillman because Tillman was Fehr’s employee. We agree. Accordingly, we affirm the appeal, reverse the cross-appeal, and remand for further proceedings consistent with this opinion. Not recommended for publication in the official reports.

2011AP1443 Schmidt v. Fehr et al.

Dist IV, La Crosse County, Bjerke, J., Higginbotham, J.

Attorneys: For Appellant: Steffes, Ryan, Eau Claire; For Respondent: Steans, Phillip M., Menomonie; Biegert, Matthew A., New Richmond

CRIMINAL OPINIONS

U.S. Court of Appeals for the 7th Circuit
Firearms – FIPOF — sufficiency of the evidence

A defendant can be convicted of felon in possession of a firearm, even if only his co-conspirator handled the firearm.

“Newman maintains that Pinkerton never supports criminal liability in a prosecution under §922(g)(1). Some language in United States v. Walls, 225 F.3d 858 (7th Cir. 2000), supports that position, but it is not what Walls held. Rawlings describes Walls this way: ‘Pinkerton ascribes the crimes of co-conspirators to each other, not a conspirator’s acts that when combined with the acts of another conspirator might add up to a crime.’ 341 F.3d at 660 (emphasis in original). The panel in Walls was concerned about the possibility that Conspirator A might possess a gun—lawfully because A had a clean record—while Conspirator B, who had a felony record, performed other acts having nothing to do with weapons. The panel thought that it would be ‘ridiculous’ (225 F.3d at 866) to conclude that A, who lacked a felony conviction, had committed the felon-in-possession offense. That approach does not help Newman. Both Newman and Misleveck had felony convictions before their cooperative venture started. Misleveck unquestionably committed the felon-in-possession crime, which per Rawlings can be imputed to his confederate Newman.”

Affirmed.

13-3467 U.S. v. Newman

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Easterbrook, J.

U.S. Supreme Court
Firearms — straw purchases

A defendant can be convicted of being a straw purchaser of a firearm, even though the actual buyer could have legally bought the gun himself.

Abramski contends that federal gun laws are entirely unconcerned with straw arrangements: So long as the person at the counter is eligible to own a gun, the sale to him is legal under the statute. To be sure, federal law regulates licensed dealer’s transactions with “persons” or “transferees” without specifying whether that language refers to the straw buyer or the actual purchaser. But when read in light of the statute’s context, structure, and purpose, it is clear this language refers to the true buyer rather than the straw. Federal gun law establishes an elaborate system of in-person identification and background checks to ensure that guns are kept out of the hands of felons and other prohibited purchasers. §§922(c), 922(t). It also imposes record-keeping requirements to assist law enforcement authorities in investigating serious crimes through the tracing of guns to their buyers. §922(b)(5), 923(g). These provisions would mean little if a would-be gun buyer could evade them all simply by enlisting the aid of an intermediary to execute the paperwork on his behalf. The statute’s language is thus best read in context to refer to the actual rather than nominal buyer. This conclusion is reinforced by this Court’s standard practice of focusing on practical realities rather than legal formalities when identifying the parties to a transaction.

706 F. 3d 307, affirmed.

12-1493 Abramski v. U.S.

Kagan, J.; Scalia, J., dissenting.

U.S. Court of Appeals for the 7th Circuit
FISA — national security

A district judge must attempt to determine the legality of surveillance without revealing any of the fruits of the surveillance to defense counsel before concluding that disclosure of classified information is necessary in order to avert an erroneous conviction.

“It’s also a mistake to think that simple possession of a security clearance automatically entitles its possessor to access to classified information that he is cleared to see. (The levels of classification differ; someone cleared for Secret information is not entitled to access to Top Secret information.) There are too many leaks of classified information—too much carelessness and irresponsibility in the handling of such information—to allow automatic access to holders of the applicable security clearances. More than a million and a half Americans have security clearances at the Top Secret level, which is the relevant level in this case. Office of Management and Budget, “Suitability and Security Processes Review: Report to the President,” Feb. 2014, p. 3, www.whitehouse.gov/sites/default/files/omb/reports/suitabi lity-and-security-process-review-report.pdf (visited June 14, 2014). Like the Fifth Circuit in United States v. El-Mezain, 664 F.3d 467, 568 (5th Cir. 2011), ‘we are unpersuaded by the defendants’ argument that the Government’s interest [in confidentiality] is diminished because defense counsel possess security clearance to review classified material.’”

Reversed and Remanded.

14-1284 U.S. v. Daoud

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

Wisconsin Court of Appeals
Theft-by-Fraud — sufficiency of the evidence

David Phillip Foley appeals judgments of conviction entered after a jury found him guilty of one count of theft by fraud, as party to a crime, one count of issuing a worthless check greater than $2500, and two counts of bail jumping. He argues that there was insufficient evidence to support the jury’s verdict as to the theft-by-fraud count. We disagree and affirm. Not recommended for publication in the official reports.

2013AP1722-CR, 2013AP1723-CR State v. Foley

Dist I, Milwaukee County, Hansher, J., Brennan, J.

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

CRIMINAL PROCEDURE

U.S. Court of Appeals for the 7th Circuit
Criminal Procedure — entrapment

Where a government informant befriended the defendant, introduced him to child pornography, and pestered the defendant for weeks to deliver child pornography to him, the district court erred in not giving an entrapment instruction to the jury.

“Elliott himself characterized McGill as a loner with few other friends, living in near isolation. And the jury had before it McGill’s confession to Elliott of his social anxiety. Elliott alone could have traded on McGill’s insecurities to make the number of telephone calls that he did in a brief period of time. The jury heard many of those conversations, and Elliott conceded that whenever McGill innocently turned the discussion to one of many subjects unrelated to child pornography, as he often did, Elliott would do his best to steer McGill back to the single objective of the FBI’s investigation: convincing him to download child pornography for Elliott, his friend.”

Reversed and Remanded.

12-3490 U.S. v. McGill

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

Wisconsin Court of Appeals
Criminal Procedure — new trials — newly-discovered evidence — ineffective assistance

Jesse J. Franklin, Jr. appeals the judgment convicting him of one count of possession of marijuana with intent to deliver, one count of possession of cocaine with intent to deliver, and one count of being a felon in possession of a firearm, contrary to Wis. Stat. §§ 961.41(1m)(h)2., 961.41(1m)(cm)3., and 941.29(2)(a) (2003-04). He also appeals the order denying his second postconviction motion, made pursuant to Wis. Stat. § 974.06. On appeal, Franklin argues that he should be granted a new trial on the basis of newly-discovered evidence, or, in the alternative, on the basis that trial counsel was ineffective. We disagree and affirm. Not recommended for publication in the official reports.

2013AP1447 State v. Franklin

Dist I, Milwaukee County, Sosnay, Dugan, JJ., Curley, P.J.

Attorneys: For Appellant: Cotter, Steven Patrick, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

U.S. Court of Appeals for the 7th Circuit
Criminal Procedure — ineffective assistance

It was not deficient performance for an attorney to summarize the evidence against his client rather than have the discovery translated into Spanish.

“Lenyo’s testimony and billing records establish that he spent over 21 hours reviewing discovery in the case. He then spent several hours reviewing the summarized discovery with Mendoza. Lenyo even arranged for Mendoza to view the physical evidence against him at the U.S. Attorney’s Office. Mendoza fails to identify any particular evidence that Lenyo failed to review with him. Nor does Mendoza explain how Lenyo was insufficiently prepared for trial. With nothing other than conclusory allegations, Mendoza cannot establish deficient performance or, for that matter, prejudice.” Affirmed.

13-3195 & 13-3196 Mendoza v. U.S.

Appeals from the United States District Court for the Northern District of Indiana, Miller, J., Tinder, J.

Wisconsin Supreme Court
Criminal Procedure — habeas corpus — ineffective assistance

Where a defendant claims his attorney failed to file a timely notice of intent to seek postconviction relief, the court of appeals is the proper forum. “We determine that the court where the alleged ineffective assistance of counsel occurred is the proper forum in which to seek relief unless that forum is unable to provide the relief necessary to address the ineffectiveness claim. The remedy for an attorney’s failure to file a notice of intent to pursue postconviction relief is an extension of the timeframe to file the notice. Because the circuit court is without authority to extend the deadline to file a notice of intent to pursue postconviction relief, we conclude that the proper forum here lies in the court of appeals. We also determine that where such a claim is made to the court of appeals it should be in the form of a habeas petition pursuant to Knight.”

Reversed and Remanded.

2012AP378-W State of Wisconsin ex rel. Kyles v. Pollard

Bradley, J.

Attorneys: For Appellant: Henak, Robert R., Milwaukee; For Respondent: Potter, Kevin C., Madison; O’Neil, Aaron R., Madison

EVIDENCE

Wisconsin Court of Appeals
Evidence — third-party culpability

Randal Rosenthal, Jr., appeals a judgment convicting him of first-degree intentional homicide. The trial court prohibited Rosenthal from presenting evidence of third-party culpability because Rosenthal failed to meet the criteria set out in State v. Denny, 120 Wis. 2d 614, 624, 357 N.W.2d 12 (Ct. App. 1984). Rosenthal contends the Denny rule violates the defendant’s due process right by arbitrarily restricting his right to present a defense, and Denny, as applied in this case, denied him that right. We affirm the judgment. This opinion will not be published.

2013AP1847-CR State v. Rosenthal

Dist III, Outagamie County, Gage, J., Per Curiam

Attorneys: For Appellant: Provis, Timothy A., Port Washington; For Respondent: Schneider, Carrie A., Appleton; Lloyd, Katherine Desmond, Madison

OWI

Wisconsin Court of Appeals
Motor Vehicles – Implied consent – probable cause

Dale Wendt appeals from the order revoking his driving privileges. This revocation was ordered because Wendt unreasonably refused a blood test when he was arrested for operating his vehicle while intoxicated, which would be his third offense. We affirm.

2014AP174 State v. Wendt

Dist II, Manitowoc County, Bendix, J., Brown, C.J.

Attorneys: For Appellant: Obear, Kirk B., Sheboygan; Mroczkowski, Melissa Louise, Sheboygan; For Respondent: Weber, Gregory M., Madison; Prost, Gail A., Manitowoc

Wisconsin Court of Appeals
Motor Vehicles – OWI — ineffective assistance — prior convictions

It was not ineffective assistance of counsel for a defendant’s attorney not to request the court to require the State to stipulate that the defendant’s BAC exceeded the legal limit.

“Krancki argues that his trial counsel was ineffective for not obtaining a court order requiring the State “to stipulate or prevent the jury from hearing evidence” that he was subject to a .02 percent BAC limit. His argument presumes that jurors would know that as Krancki was subject to a .02 BAC limit (rather than .08 percent or some other limit) that he had multiple prior OWI convictions and would use that information to infer he had a propensity to drive while intoxicated. We are not persuaded.”

“Krancki primarily relies on State v. Alexander, 214 Wis. 2d 628, 651, 571 N.W.2d 662 (1997), where our supreme court held that the State could not admit evidence of a defendant’s prior OWI convictions solely to prove the defendant has been convicted when the defendant has admitted to the convictions. The Alexander court reasoned that the danger of unfair prejudice outweighed the probative value of the defendant’s admission to prior convictions. Id. at 645; see also WIS. STAT. § 904.03 (2011-12). The problem with Krancki’s reliance on Alexander, however, is that the State did not admit evidence of Krancki’s prior OWI convictions. The State admitted evidence that he had a .26 BAC, which was probative to the jury question concerning whether he was over the .02 BAC limit at the time that he drove. This evidence was not unfairly prejudicial; it was evidence necessary to prove an element of the crime charged.”

“Trial counsel testified at the Machner hearing that he had requested a stipulation from the State that Krancki’s BAC was over the permissible limit and that his request was rejected. To suggest that trial counsel’s performance was deficient for not asking the court to order the State to so ‘stipulate’ borders on absurd.”

Affirmed.

Recommended for publication in the official reports.

2013AP1987-CR State v. Krancki

Dist. II, Waukesha County, Kieffer, Hassin, JJ., Reilly, J.

Wisconsin Court of Appeals
Motor Vehicles — OWI — ineffective assistance — prior convictions

It was not ineffective assistance of counsel for a defendant’s attorney not to request the court to require the State to stipulate that the defendant’s BAC exceeded the legal limit.

“Krancki argues that his trial counsel was ineffective for not obtaining a court order requiring the State “to stipulate or prevent the jury from hearing evidence” that he was subject to a .02 percent BAC limit. His argument presumes that jurors would know that as Krancki was subject to a .02 BAC limit (rather than .08 percent or some other limit) that he had multiple prior OWI convictions and would use that information to infer he had a propensity to drive while intoxicated. We are not persuaded.”

“Krancki primarily relies on State v. Alexander, 214 Wis. 2d 628, 651, 571 N.W.2d 662 (1997), where our supreme court held that the State could not admit evidence of a defendant’s prior OWI convictions solely to prove the defendant has been convicted when the defendant has admitted to the convictions. The Alexander court reasoned that the danger of unfair prejudice outweighed the probative value of the defendant’s admission to prior convictions. Id. at 645; see also WIS. STAT. § 904.03 (2011-12). The problem with Krancki’s reliance on Alexander, however, is that the State did not admit evidence of Krancki’s prior OWI convictions. The State admitted evidence that he had a .26 BAC, which was probative to the jury question concerning whether he was over the .02 BAC limit at the time that he drove. This evidence was not unfairly prejudicial; it was evidence necessary to prove an element of the crime charged.”

“Trial counsel testified at the Machner hearing that he had requested a stipulation from the State that Krancki’s BAC was over the permissible limit and that his request was rejected. To suggest that trial counsel’s performance was deficient for not asking the court to order the State to so ‘stipulate’ borders on absurd.”

Affirmed.

Recommended for publication in the official reports.

2013AP1987-CR State v. Krancki

Dist. II, Waukesha County, Kieffer, Hassin, JJ., Reilly, J.

SEARCH AND SEIZURE

U.S. Court of Appeals for the 7th Circuit
Search and Seizure — probable cause

Where an affidavit in support of a search warrant contained nothing regarding an informant’s credibility, the defendant is entitled to a Franks hearing.

“We conclude that the affidavit provided an insufficient basis for the search warrant. It omitted all information regarding the informant’s credibility. That undermined the is-suing magistrate’s ability to perform his role as a neutral arbiter of probable cause. Regarding the good faith exception, the question is close, but in light of our prior cases, the affidavit was not so ‘bare bones’ that officers’ good faith reliance on it was unreasonable. Nevertheless, the affidavit’s omission of all information about the informant’s credibility is sufficient to raise an inference of reckless disregard for the truth that could undermine the good faith exception under Leon. We reverse and remand for a hearing under Franks v. Delaware, 438 U.S. 154 (1978).”

Reversed and Remanded.

13-2475 U.S. v. Glover

Appeal from the United States District Court for the Northern District of Illinois, Grady, J., Hamilton, J.

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

Search and Seizure — search warrants — probable cause
Authorities had probable cause to search the defendant’s computer.

“Valley’s argument that the warrant is too vague fares no better. Probable cause in this context means a ‘fair probability’ that Valley’s computer would hold child pornography. See Illinois v. Gates, 462 U.S. 213, 238 (1983); Prideaux-Wentz, 543 F.3d at 960–61. According to the affidavit, authorities had identified multiple images of suspected child pornography, at least three of which an agent viewed and confirmed to be what the file names described. The IP address from which those images were downloaded then was traced to the residence Valley shared with his mother. This was enough information for a judge to conclude that child pornography likely existed on a computer located at that residence. See Prideaux-Wentz, 543 F.3d at 961; United States v. Hall, 142 F.3d 988, 995 (7th Cir. 1998). There is nothing ‘vague’ about the investigative steps described in the affidavit.”

Affirmed.

13-2870 U.S. v. Valley

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Per Curiam.

SENTENCING

U.S. Court of Appeals for the 7th Circuit
Sentencing – supervised release — conditions

Although the court did not state any reasons for the conditions of extended supervision it imposed, the conditions remain in place where neither the defendant nor his attorney objected.

“All this said, because the attorney did not raise these issues and the defendant did not respond to the Anders brief we have no basis for reversing the sentence, as we are given no indication that he wishes to challenge any of the conditions of supervised release. United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). He may be indifferent to them, since — apart from those that, on unexplained authority, are to take effect before his release — they won’t take effect until his re-lease date, which according to the Bureau of Prisons will be no earlier than June 4, 2023. (The selection of this date was based on the assumption that he will earn the maximum good-time credits authorized by 18 U.S.C. § 3624(b)(1).) He may not weight distant future consequences heavily.”

Dismissed.

13-3845 U.S. v. Bryant

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Posner, J.

U.S. Court of Appeals for the 7th Circuit
Sentencing — amount of loss

It is irrelevant in imposing sentence whether the amount of loss was $16.8 million or $18.2 million.

“Now it’s true that having correctly calculated the guidelines sentencing range, the sentencing judge must go on and apply the sentencing factors in 18 U.S.C. § 3553(a). Only after doing that may he decide what sentence to give within the statutory, not the guidelines, sentencing range for the defendant’s crime. And the amount of loss caused by a defendant, even if not germane to his guidelines range, is germane to the sentence that the judge will give after evaluating the defendant’s criminal conduct in light of the statutory sentencing factors. But the difference between a $16.8 million estimate of loss (and remember the actual loss is more than that) and an $18.2 million estimate is too small to have affected the sentence in this case. It had no effect on the guide-lines sentencing range and the defendant has not challenged the award of $18.2 million in restitution.”

Affirmed.

13-2046 U.S. v. Morawski

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

Wisconsin Court of Appeals
Sentencing – discretion — undue harshness

Caleb Miller appeals a judgment of conviction for first-degree reckless homicide and aggravated battery with intent to cause great bodily harm, both as a party to a crime, and an order denying postconviction relief. Miller argues his sentence was unduly harsh because the circuit court gave too much consideration to his affiliation with the Latin Kings gang and not enough consideration to mitigating factors. We reject Miller’s arguments and affirm. This opinion will not be published.

2013AP2484-CR State v. Miller

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

Attorneys: For Appellant: Harless, Sarah Mae, Eau Claire; For Respondent: Weber, Gregory M., Madison; Poquette, Bruce R., Hayward

U.S. Court of Appeals for the 7th Circuit
Sentencing — reasonableness

A 77-month sentence for illegal reentry is not unreasonable.

“Castro argues that he is ‘not typical of Category VI criminal history offenders’ and that the ‘remoteness of his criminal history’ counsels towards a below-Guidelines sentence because his drug trafficking convictions were all in the 1990s and he has had no further encounters with the law in the past thirteen years. Appellant Br. 19–22. Castro analogizes his case to United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009). Amezcua-Vasquez was an unusual case where a permanent resident convicted of two crimes of violence in 1981 was removed twenty-five years later in 2006. Id. at 1052. Two weeks later, he reentered the United States illegally and was indicted under 8 U.S.C. § 1326(a). Id. Shortly after, Amezcua- Vasquez pleaded guilty. Id. His advisory sentencing guideline range was 46–57 months’ imprisonment, and he was sentenced to 52 months. Id. at 1053. On appeal, the Ninth Circuit vacated his sentence on substantive reasonableness grounds, holding ‘that the district court abused its discretion when it applied the Guidelines sentence to Amezcua without making allowances for the staleness of the prior convictions and his subsequent lack of any other convictions … .’ Id. at 1055–56. The present case is easily distinguishable from Amezcua-Vasquez. Other than both involving illegal reentry prosecutions, they share little else in common. In Amezcua-Vasquez, the defendant had two convictions twenty-five years prior to his single illegal reentry conviction, and he was sentenced to the higher end of his Guideline range. Here, Castro has accumulated six drug trafficking convictions, eight deportations, and two illegal reentry convictions prior to the underlying one in this instance, but was sentenced at the bottom of his Guideline range—despite having lived in near-continuous violation of the law for over four decades.”

Affirmed.

13-3765 U.S. v. Castro-Alvarado

Appeal from the United States District Court for the Northern District of Illinois, Kendall, J., Manion, J.

U.S. Court of Appeals for the 7th Circuit
Sentencing — supervised release — conditions

A condition that a defendant’s computer use be monitored by the probation department must be vacated.

“[W]hatever the reason for Baker’s move from Illinois to Michigan, the move would not necessarily have led to a conviction for failing to register. It wasn’t simply the move that caused Baker to be in violation of the law. Rather, it was Baker’s conscious, intentional decision to flout his legal obligation to report for registration and update his address. If Baker had found employment through a website such as Linkedin or CareerBuilder, moved to Michigan or any other state, and failed to register there, Baker could have been convicted of the exact same offense at issue here. In that situation, it would be illogical to link Baker’s use of the computer to find a job with a subsequent conviction for failing to register. The same is true here. Nothing about Baker’s use of his computer or the internet was illegal. And the government has not tied Baker’s quest on the internet to find a dating partner to Baker’s prior affinity towards inappropriate sexual conduct or to any attempt to evade his registration obligations. The government even concedes in its brief that Baker accessed the website for a lawful purpose.”

Affirmed in part, and Vacated and Remanded in part.

13-1641 U.S. v. Baker

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Durkin, J.

U.S. Court of Appeals for the 7th Circuit
Sentencing — supervised release — conditions

Conditions of lifetime supervised release that the defendant possess no sexually stimulating material and have no contact with minors are overbroad and must be vacated.

“The government concedes, and we agree, that a limited remand is appropriate so that the district court can on remand narrowly tailor these conditions. First, on remand the court should clarify what materials are ‘sexually stimulating’ for Benhoff and narrow the scope of proscribed conduct so as not to block his access to protected speech. See, e.g., United States v. Siegel,—F.3d—, 2014 WL 2210762, *6–7 (7th Cir. 2014); United States v. Shannon, 743 F.3d 496, 501 (7th Cir. 2014); United States v. Adkins, 743 F.3d 176, 194 (7th Cir. 2014); United States v. Goodwin, 717 F.3d 511, 524–25 (7th Cir. 2013); United States v. Loy, 237 F.3d 251, 262–64 (3d Cir. 2001); but see United States v. Ellis, 720 F.3d 220, 226–27 (5th Cir. 2013); United States v. Hobbs, 710 F.3d 850, 855 (8th Cir. 2013); United States v. Rearden, 349 F.3d 608, 619–20 (9th Cir. 2003). Second, the district court should explain why a no-contact ban for minors is necessary in Benhoff’s case so as not to involve a greater deprivation of liberty than necessary. See United States v. Poulin, 745 F.3d 796, 802 (7th Cir. 2014); Goodwin, 717 F.3d at 524; United States v. Voelker, 489 F.3d 139, 154–55 (3d Cir. 2007).”

Affirmed in part, and Vacated and Remanded in part.

13-2369 U.S. v. Benhoff

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

Wisconsin Court of Appeals
Sentencing — repeater enhancements — bifurcation

Eric Alston appeals an order modifying the sentences imposed by the circuit court following Alston’s convictions for one count of criminal damage to property in violation of Wis. Stat. § 943.01(1), and two counts of battery in violation of Wis. Stat. § 940.19(1). Alston was convicted of all three charges as a repeater, in violation of Wis. Stat. § 939.62(1)(a), and the court therefore applied a penalty enhancer to Alston’s sentences. This opinion will not be published.

2013AP1833-CR, 2013AP1834-CR State v. Alston

Dist IV, Dane County, Hanrahan, J., Kloppenburg, J.

Attorneys: For Appellant: Griessmeyer, Clayton, Verona; For Respondent: Rusch, Shelly J., Madison; Weber, Gregory M., Madison

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