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Weekly Case Digests — Aug. 18-22, 2014

By: WISCONSIN LAW JOURNAL STAFF//August 22, 2014//

Weekly Case Digests — Aug. 18-22, 2014

By: WISCONSIN LAW JOURNAL STAFF//August 22, 2014//

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Wisconsin Law Journal’s Case Digests, Aug. 18–22, 2014

CIVIL OPINIONS

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

Civil
RICO — standing

A casino has standing to sue the owners of a horseracing track for bribing government officials.

“Here, the general limitation on taxpayer standing found in Article III does not apply. The Casinos do not ‘challenge laws of general application where their own injur[ies] [are] not distinct from that suffered in general by other taxpayers or citizens.’ See Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 598 (2007), quoting ASARCO, Inc. v. Kadish, 490 U.S. 605, 613 (1989) (Kennedy, J.). The ’08 Act taxed only five entities in the entire state. Other taxpayers and citizens were unaffected. Moreover, the Casinos are not challenging the tax itself in this litigation, having lost earlier efforts pursuing that theory. Rather, they seek damages from a private party for an alleged conspiracy to use the power of state government to take money from them. Their injury is easily measured, and it is directly traceable to the Racetracks’ alleged conduct (bribing the governor to sign the ’08 Act) and remediable by this court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). They thus face no standing barrier to their lawsuit under Article III.”

Reversed and Remanded.

13-2972 Empress Casino Joliet Corp. v. Johnston

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Wood, J.

CIVIL PROCEDURE

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

Civil
Civil Procedure — costs

Where class action attorneys, instead of appealing a losing case, filed a new suit with different plaintiffs, they were properly ordered to pay the defendant’s costs.

“Plaintiffs demanded many million dollars; a high-stakes suit does not come cheap to either side. Despite losing Cima, the law firm tried again in the hope that a different forum would produce a different answer. After finding itself back in the original forum and before the judge who had decided Cima, the law firm did not economize. It could have asked the district court to enter the same opinion as in Cima in order to set up an appeal; instead it launched a new round of discovery and proceeded to litigate as if Cima did not exist. No wonder the defendants incurred substantial costs.”

“Law firms representing would-be class representatives have portfolios of suits. Some will be settled for considerable sums; others will fail. Paying the costs of failure is part of being in this business. See Rand v. Monsanto Co., 926 F.2d 596 (7th Cir. 1991) (observing that class counsel properly agree to bear the costs of suit, rather than leaving them with the figurehead representatives); see also White v. Sundstrand Corp., 256 F.3d 580, 586 (7th Cir. 2001). Counsel should thank their lucky stars that the district court did not sanction them under 28 U.S.C. §1927 for filing a second suit rather than pursuing the first through appeal.”

Affirmed.

12-3882 & 13-2230 Myrick v. WellPoint Inc.

Appeals from the United States District Court for the Southern District of Illinois, Gilbert, J., Easterbrook, J.

CIVIL RIGHTS

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

Civil
Civil Rights — substantive due process

A police officer is not liable for the battery of one suspect against another.

“[W]e conclude that Officer Rodriguez did not disregard a known or obvious risk so much as he made a difficult decision that balanced legitimate competing dangers, both to himself and the men he detained. Indeed, it is not clear what Officer Rodriguez should have done differently to avoid McDowell’s injury. Certainly, he might have paid more attention to Morandi, and issued another warning for him to stop (assuming McDowell is correct that no second warning was issued). But that would have afforded other suspects the opportunity to get up while the officer was preoccupied, and in any event it likely would not have made a difference. Once Morandi disobeyed his first command, simply repeating the order might actually have undermined Officer Rodriguez’s authority. He could have tased Morandi, but that might have exposed him to at-tack from the other suspects. Physically positioning himself between Morandi and McDowell would have been a particularly bad idea, because he then would necessarily be turned away from one (or both) of them. And of course, encouraging McDowell to flee or defend himself would have been absurdly irresponsible. Officer Rodriguez had only a matter of seconds to decide among these and many other options. Even if he chose poorly — and we express no opinion on that point — his snap judgment did not rise to the level of a constitutional tort.”

Affirmed.

13-3423 McDowell v. Village of Lansing

Appeal from the United States District Court for the Northern District of Illinois, St. Eve, J., Tinder, J.

CONSTITUTIONAL LAW

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

Civil
Constitutional Law — public employment — freedom of speech

Where an employee failed to show a connection between the exercise of his freedom of speech, and disciplinary action, summary judgment was properly granted to the employer.

“The evidence is insufficient to show that but for Graber’s conversation with Mascari and Meverden, he would not have been ‘bullied’ by Clarke in their meeting. Clarke and Bailey testified at trial that the reason the meeting was called with Graber was because of Nyklewicz’s complaints. The meeting between Clarke and Graber would have occurred even if the conversation with Mascari and Meverden never happened. While additional testimony revealed that Graber’s conversation with Mascari and Meverden may have been brought up during the extended meeting with Clarke, the purpose and focus of the meeting related to Graber challenging orders, blocking department resources, personally attacking Clarke, and acting insubordinate in his encounter with Nyklewicz. Clarke’s belittling ‘dress down’ of Graber, even when considered an actionable offense, was due to the aggressive and insubordinate manner in which Graber spoke to Nyklewicz; it was not the result of any protected speech in which Graber engaged.”

Affirmed.

13-2165 Graber v. Clarke

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

CONTRACTS

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

Civil
Contracts — allocation of risk

Where sophisticated parties allocated risk, a contract is enforceable although it provides no remedy for its breach.

“We see no reason to reject the parties’ allocation of risk, even if this means that SFG will be uncompensated for McFarland’s breach. Wisconsin courts enforce agreements in which parties allocate risk in advance. See Brooks v. Hayes, 395 N.W.2d 167, 175 (Wis. 1986). SFG is a sophisticated, repeat player in the distressed-assets business. It could have negotiated a different contract had it wanted to shift more risk to McFarland. In that case, however, McFarland might have demanded more than 29 cents on the dollar for the portfolio. Cf. Wis. Power & Light Co. v. Westinghouse Elec. Corp., 830 F.2d 1405, 1412 (7th Cir. 1987) (Wisconsin law) (‘Wisconsin Power cannot accept the favorable purchase price and then disclaim the conditions underlying that price.’).”

Affirmed.

13-3378 Southern Financial Group LLC v. McFarland State Bank

Appeal from the United States District Court for the Eastern District of Wisconsin, Joseph, Mag. J., Wood, J.

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles – TPR — ineffective assistance

Johnnie J. appeals from orders terminating her parental rights to Eve J. and Lavontae R. She contends that her trial counsel provided constitutionally ineffective assistance because she failed to object to the admission of expert testimony from three witnesses and failed to object to multiple instances of hearsay during the trial. However, even if we assume that Johnnie’s allegations against her trial counsel amount to deficient performance, we conclude that Johnnie was not prejudiced by counsel’s alleged errors. As such, Johnnie was not subjected to constitutionally ineffective counsel, and we affirm. This opinion will not be published.

2014AP144, 2014AP145 In re the termination of parental rights to Eve J. et al.: State v. Johnnie J.

Dist I, Milwaukee County, Donald, DiMotto, J.J., Brennan, J.

Attorneys: For Appellant: Moorshead, Pamela, Milwaukee; For Respondent: Westphal, Matthew Richard, Wauwatosa

LABOR AND EMPLOYMENT

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

Civil
Employment — FMLA

A plaintiff in an FMLA action is not required to produce expert testimony that his serious health condition rendered him unable to work during his absence.

“Hansen’s evidence raises a material issue of fact as to whether he was unable to perform the functions of his job because of his serious health condition on the days he was absent. Although Dr. Post’s certification does not specifically cover the July absences, the certified need for intermittent leave could support a finding that Hansen’s chronic serious health condition rendered him unable to work on the days in question. Our decision does not require FMG to go through a costly trial merely on Hansen’s own say-so that his depression required him to be absent from work. In addition to his own testimony about his incapacity, Hansen has Dr. Post’s medical certification that he has a serious health condition that will cause episodic flare-ups that prevent him from per-forming his job and make it medically necessary for him to be absent from work. Presumably, Dr. Post would testify in accordance with his certification. Whether a jury will credit Hansen’s claims of incapacity due to his depression on the July dates remains to be decided. The jury can weigh Hansen’s testimony against the medical certification and any testimony Dr. Post provides that may add to or detract from Hansen’s claims, along with all the other evidence, to determine whether Hansen was entitled to FMLA leave for his July 2011 absences.”

Reversed and Remanded.

13-3391 Hansen v. Fincantieri Marine Group LLC

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

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil
Professional Responsibility — suspension

Where the misconduct of attorney John R. Dade occurred more than five years before disciplinary proceedings were filed, a 90-day suspension is appropriate.

“Given the referee’s factual findings, we further agree with the referee that Attorney Dade’s professional misconduct requires that his license to practice law in Wisconsin be suspended for a period of 90 days. Attorney Dade has not objected to the statement of costs filed by the OLR, and we conclude that he should be required to pay the full amount of costs in this disciplinary proceeding. Finally, we agree with the referee’s recommendation that, as a condition of the reinstatement of his license to practice law, Attorney Dade be required to complete six CLE credits in law office management, to be approved by the OLR.”

2013AP1733-D OLR v. Dade

Per Curiam.

Attorneys: For Complainant: Krohn, Robert G., Edgerton; Weigel, William J., Madison; For Respondent: Dade, John R., Whitewater

PUBLIC HEALTH

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

Civil
Public Health — disability benefits

Where the record does not support the ALJ’s conclusion that a claimant can perform heavy manual labor, the denial of disability benefits is reversed.

“The plaintiff’s residual functional capacity as determined by the administrative law judge included the ability to do jobs that involve lifting 50-pound objects for a third of an eight-hour workday and 25-pound objects for the other two-thirds, implying capacity to hold a job in which the worker is standing throughout the entire workday. Inconsistently, the administrative law judge also determined that the plaintiff’s residual functional capacity is limited to standing or walking for six hours in an eight-hour workday. How she could be thought capable of either standing or walking for six out of eight hours eludes us. Given her obesity and the serious spinal problems revealed by the 2010 MRI, we can’t understand how the administrative law judge could have concluded that the plaintiff has a capacity for such hard physical labor.”

Reversed and Remanded.

13-3729 Goins v. Colvin

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

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

Civil
Public Health — Medicare

The Secretary of Health and Human Services reasonably has interpreted the Medicare Act to exclude compensation for pure research activities.

“In fact, there are good reasons to think that Congress affirmatively wanted to grant the Secretary the power to exclude pure research time from the IME costs calculation for periods before 2001. As the Secretary explained when promulgating the new regulations, her view on ‘non-patient care activities’ is that the concept of ‘care’ remains important; the activities must relate to the treatment of patients. For example, she explained, ‘didactic conferences and seminars’ can include ‘administrative rotation[s], which would include resident training in the administrative aspects of medical care such as practice management,’ and may also ‘involve presentations or discussions related to the treatment of current patients.’ 75 Fed. Reg. 71,800, 72,144, 72,146 (Nov. 24, 2010). Moreover, didactic non-patient care activities tend to take place ‘when an intern or resident is otherwise as-signed to a rotation primarily requiring the provision of patient care,’ whereas pure research is usually conducted in large blocks of time when a resident is not expected to render care to patients. Id. at 72,145–46. We can assume that this understanding of ‘non-patient care activities’ is not required under the statute, but it is rational and consistent with the distinction Congress drew and the scope of its delegation to the Secretary.”

Reversed and Remanded.

13-3285 Rush University Medical Center v. Burwell

Appeal from the United States District Court for the Northern District of Illinois, Lefkow, J., Wood, J.

SEARCH AND SEIZURE

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

Civil
Search and Seizure — search warrants – execution — liability

A county is liable for, in the course of executing a search warrant, permitting animal rights activists to damage property.

“We have no basis for disturbing either the jury’s finding of negligence or its finding that the search was unreasonable. The search warrant was valid, but the conduct of the search unreasonable, making the search unreasonable within the meaning of the Fourth Amendment. See United States v. Ramirez, 523 U.S. 65, 71 (1998); Tarpley v. Greene, 684 F.2d 1, 8–9 (D.C. Cir. 1982). Police can’t be permitted, merely by virtue of having obtained a search warrant, to allow an untrained, unsupervised mob (however well-intentioned, as we may assume the animal-rights activists who conducted the search to have been) to conduct a search likely to result in gratuitous destruction of private property because of the mob’s lack of training and supervision. What the police could not have done lawfully had they conducted the search themselves they could not authorize private persons to do in their stead. Blum v. Yaretsky, 457 U.S. 991, 1003–05 (1982); United States v. Shahid, 117 F.3d 322, 325, 327–28 (7th Cir. 1997); United States v. Feffer, 831 F.2d 734, 737 (7th Cir. 1987); United States v. Momoh, 427 F.3d 137, 140–41 (1st Cir. 2005); United States v. Parker, 32 F.3d 395, 398–99 (8th Cir. 1994). Police cannot hire the Hell’s Angels to conduct highway patrol and, though failing to train or supervise them, shuck off responsibility when one of the Angels beats a speeder into a bloody pulp with a tire iron.”

Affirmed.

13-3603 & 13-3700 Petkus v. Richland County

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

TAX

Wisconsin Court of Appeals

Civil
Tax — property taxes

Where the assessor relied on comparable sales in assessing property, the circuit court properly upheld the assessment.

“Based on State ex rel. Markarian v. City of Cudahy, 45 Wis. 2d 683, 173 N.W.2d 627 (1970), the circuit court correctly acknowledged that ‘the methods of valuation should be recent sale or comparable sales, and … if that information is not available, we turn to income and other sources.’ See id. at 686. The circuit court explained that the preference for comparable sales valuation is because ‘what the property can generate [in income] is really substantially what we expect to be factored into … the sale [price]. So long as you have comparable sales that you feel are reliable … that income approach ought [to] already be sort of built into the valuation under that Tier 2 approach.’”

“The circuit court specifically found that Weissenfluh’s method of analysis was more reliable than Pitts’s method, both as to the tier-two comparable sales approach, and as to the tier-three income approach, which Weissenfluh used only as a check on the accuracy of the comparable sales conclusion.”

Affirmed.

Recommended for publication in the official reports.

2013AP1944 Joseph Hirschberg Revocable Living Trust v. City of Milwaukee

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

Attorneys: For Appellant: Marcuvitz, Alan, Milwaukee; Boerke, Nicholas J., Milwaukee; For Respondent: Quinn, Christine M., Greendale

TORTS

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

Civil
Torts — statute of limitations — discovery rule

A former client’s claim that its attorneys defrauded it was properly dismissed as untimely.

“There are several clear indications that KDC had the knowledge to sue Gray Plant within the statutory period. The clearest is KDC’s demand letter to GPM dated March 26, 2012, enclosing a draft complaint. It is obvious from the complaint and the letter that the company had learned of its potential cause of action by that date, which is within the six-year period calculated starting the day Sullivan received the file from Gray Plant. But even before that date, the company and its employees had sufficient knowledge to file this suit. Attorney Erhard’s internal emails show that he had recognized, and alerted KDC’s bankruptcy trustee, to the potential lawsuit by July 14, 2011, and even flagged the statute of limitations issue to KDC’s attention. He stated that ‘[a]s it relates to the applicable statutes of limitations, we calculate that if at all possible the suit against Gray, Plant, Mooty should be filed by no later than the end of August [2011].’ And we cannot overlook the fact that in arguing to us about the discovery rule, KDC adamantly claims that it discovered the potential fraud at the Bohl and Tenenbaum depositions in September 2008, more than three and a half years before the statutory period would run.”

Affirmed.

13-3678 KDC Foods Inc. v. Gray Plant Mooty Mooty & Bennett P.A.

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

CRIMINAL OPINIONS

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

Criminal
Habeas Corpus – AEDPA — equitable tolling

Where a prisoner was wrongfully denied access to his file, the statute of limitations under the AEDPA must be tolled.

“Equitable tolling is rare, but so are the facts of this case. Based on Socha’s repeated efforts to obtain an unjustifiably withheld file, the minimal time he had in which to complete a petition afterward, and the initial judicial determination that tolling was appropriate, we conclude that it was an abuse of discretion to deny tolling of the AEDPA deadline. We reach this conclusion using the flexible, fact-specific standard described by the Supreme Court in Holland. In light of all the circumstances, Socha is entitled to equitable tolling of the one-year deadline for his habeas corpus petition.” Reversed and Remanded.

12-1598 Socha v. Boughton

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

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

Criminal
Wire Fraud — sufficiency of the evidence

The evidence was sufficient to convict the defendant of wire fraud, despite the lack of any eyewitness testimony.

“Proof of identity can be especially difficult when crimes can be committed from a remote location and without direct contact with the victim — a possibility that is likely to become increasingly common as technology continues to evolve. Chapman played his role in the scheme entirely from the other end of a cell phone or via correspondence, and so it would be all but impossible for any of the victims or investigators to take the stand and say that Chapman was the person they ‘saw’ committing the wire fraud. Someone may be able to identify the person in the courtroom as Lamar Christopher Chapman, but that would hardly solve the problem of proving that he was the Lamar Chapman involved in the scheme; it would prove only that 1) this man is named La-mar Chapman and 2) the Lamar Chapman name was used in the scheme. With such crimes, juries will often be forced to rely on circumstantial evidence to determine that the defendant has been correctly identified. That evidence may be substantial, but it does require in the end that an inference be drawn. But, as we said at the outset, circumstantial evidence is entirely acceptable to prove even such a weighty point as who pulled the trigger. It is also permissible to use for identity. In fact, given mounting scientific evidence about the unreliability of eyewitness identification, establishing or bolstering evidence of the defendant’s identity through means other than eyewitness testimony may in many cases be desirable. See, e.g., Hal Arkowitz & Scott O. Lilienfeld, Why Science Tells Us Not to Rely on Eyewitness Accounts, SCI. AM., Jan.-Feb. 2010, available at http://www.scientificamerican.com/article/do-the-eyes-have-it/?page=1 (last visited Aug. 14, 2014); Henry F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimo-ny, 2006 FED. CTS. L. REV. 3. Finally, Chapman’s case is an especially unattractive one in which to break new ground, since he did not raise this point at trial and did not present any argument to the jury that might have caused it to question the identity of the defendant.”

Affirmed.

12-3919 & 13-1515 U.S. v. Thomas

Appeals from the United States District Court for the Northern District of Illinois, Bucklo, J., Wood, J.

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Mical Thomas appeals from a judgment of conviction on two counts of first-degree reckless homicide as party to a crime and from an order denying his motion for postconviction relief. Thomas contends the circuit court “improperly negated [his] ability to meaningfully participate” in the postconviction evidentiary hearing because it had “prejudged” Thomas’s testimony and because the court “improperly ‘cut off’” his testimony before its completion. We reject Thomas’s contentions and affirm the judgment and order. This opinion shall not be published.

2013AP2239-CR State v. Thomas

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

Attorneys: For Appellant: Rosen, Mark S., Waukesha; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison

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

Criminal
Criminal Procedure — anonymous juries

The defendant failed to show that her jury was anonymous.

“The only evidence Harris points to in arguing that the jury was anonymous are the judge’s statements before con-ducting voir dire. Our analysis, and Harris’s appellate argument, is hindered by the fact that Harris’s trial counsel did not object and create a fuller record of what information, if any, was withheld from the parties and/or the public. But, because Harris’s counsel relies only on the portion of the judge’s voir dire statements quoted in full above, we will review that same portion to determine whether or not she can show the jury was anonymous. There are three reasons we find Harris has not met her burden. First, we do not believe the judge’s statements, when examined alone, demonstrate that the jurors’ names were unknown to the parties. The judge did not tell the jurors that their names were being kept from the parties, but instead said their names were not being stated in open court because ‘to protect people’s privacy, we try to refer to jurors by numbers now’ and ‘we do this just to protect your privacy, which is a very important consideration in the modern world.’ While Harris’s argument that these statements demonstrated that the jury was anonymous is one possible conclusion to draw, we believe it just as, if not more, likely that a rational juror would understand these comments to mean that the jurors’ names were being kept from the public. There is nothing in the judge’s statement that indicates the jurors’ information was being kept from the parties. So we decline to draw the inferences Harris asks us to based on these two statements by the judge. To do so would be to defeat the purpose of Harris’s burden under the plain error standard, which requires her to show an error ‘so obvious that the trial judge and prosecutor were derelict in countenancing it.’ Christian, 673 F.3d at 708 (internal quotation omitted). Such an error is not present from these statements alone.”

Affirmed.

13-1741 U.S. v. Harris

Appeal from the United States District Court for the Southern District of Illinois, Murphy, Herndon, JJ., Williams, J.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — competency

Matthew Dorman appeals an order denying his motion for a competency evaluation pursuant to State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994). He argues that: (1) the circuit court’s decision was improperly based on the cost of conducting the evaluation; (2) the finding that Dorman was competent is clearly erroneous because it ignored Dorman’s testimony and focused on improper facts; and (3) the court erroneously exercised its discretion because it failed to determine whether Dorman understood the proceedings. We reject these arguments, and affirm the order. This opinion will not be published.

2013AP782-CR, 2013AP783-CR, 2013AP784-CR, 2013AP785-CR State v. Dorman

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

Attorneys: For Appellant: Moses, Faun M., Madison; For Respondent: Rusch, Shelly J., Madison; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — Miranda warnings — plea withdrawal

Jeremy Leavy-Carter, pro se, appeals an order denying his Wis. Stat. § 974.06 (2011-12) postconviction motion seeking to withdraw his guilty plea to second-degree intentional homicide. Leavy-Carter contends that: (1) incriminating statements Leavy-Carter made to police were obtained in violation of Leavy-Carter’s constitutional rights; and (2) the plea colloquy was deficient. We reject these contentions, and affirm. This opinion will not be published.

2012AP2480 State v. Leavy-Carter

Dist IV, Rock County, Daley, J., Per Curiam

Attorneys: For Appellant: Leavy-Carter, Jeremy Alexander, pro se; For Respondent: Pray, Eileen W., Madison; Sullivan, Richard J., Janesville

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

Criminal
Criminal Procedure — partial verdicts

Where the judge improperly solicited a partial verdict from the jury for using a firearm during a crime of violence, when the jury was unable to reach a verdict on the predicate crime of violence, the conviction must be vacated.

“Because the actual rationale underlying the jury’s verdicts (and lack thereof ) are typically not the proper subject of judicial inquiry, see Fed. R. Evid. 606(b); Tanner v. United States, 483 U.S. 107, 116–127, 107 S. Ct. 2739, 2745–51 (1987); Gacy v. Welborn, 994 F.2d 305, 313 (7th Cir. 1993), we will not and cannot know why the jury convicted Moore on Count Two without reaching agreement on the predicate offense in Count One. See Powell, 469 U.S. at 66, 105 S. Ct. at 477; Askew, 403 F.3d at 501. But we cannot discount the possibility that the jury rendered a verdict on Count Two prematurely, without appreciating that its finding of guilt was logically irreconcilable with its continued division on the predicate offense. This is the very possibility that the district court itself recognized when the partial verdict was first returned. Nor can we rule out the possibility that had the jury been permitted to continue its deliberations on all counts, without interruption and without the court’s solicitation of a partial verdict, the jury in weighing the evidence that bore on Count One as well as Count Two might have perceived the inconsistency and realized that it had not, in fact, reached agreement as to all elements of the section 924(c) offense.”

Vacated in part, and Affirmed in part.

13-2905 U.S. v. Moore

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

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Mical Thomas appeals from a judgment of conviction on two counts of first-degree reckless homicide as party to a crime and from an order denying his motion for postconviction relief. Thomas contends the circuit court “improperly negated [his] ability to meaningfully participate” in the postconviction evidentiary hearing because it had “prejudged” Thomas’s testimony and because the court “improperly ‘cut off’” his testimony before its completion. We reject Thomas’s contentions and affirm the judgment and order. This opinion shall not be published.

2013AP2239-CR State v. Thomas

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

Attorneys: For Appellant: Rosen, Mark S., Waukesha; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison

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

Criminal
Criminal Procedure — anonymous juries

The defendant failed to show that her jury was anonymous.

“The only evidence Harris points to in arguing that the jury was anonymous are the judge’s statements before con-ducting voir dire. Our analysis, and Harris’s appellate argument, is hindered by the fact that Harris’s trial counsel did not object and create a fuller record of what information, if any, was withheld from the parties and/or the public. But, because Harris’s counsel relies only on the portion of the judge’s voir dire statements quoted in full above, we will review that same portion to determine whether or not she can show the jury was anonymous. There are three reasons we find Harris has not met her burden. First, we do not believe the judge’s statements, when examined alone, demonstrate that the jurors’ names were unknown to the parties. The judge did not tell the jurors that their names were being kept from the parties, but instead said their names were not being stated in open court because ‘to protect people’s privacy, we try to refer to jurors by numbers now’ and ‘we do this just to protect your privacy, which is a very important consideration in the modern world.’ While Harris’s argument that these statements demonstrated that the jury was anonymous is one possible conclusion to draw, we believe it just as, if not more, likely that a rational juror would understand these comments to mean that the jurors’ names were being kept from the public. There is nothing in the judge’s statement that indicates the jurors’ information was being kept from the parties. So we decline to draw the inferences Harris asks us to based on these two statements by the judge. To do so would be to defeat the purpose of Harris’s burden under the plain error standard, which requires her to show an error ‘so obvious that the trial judge and prosecutor were derelict in countenancing it.’ Christian, 673 F.3d at 708 (internal quotation omitted). Such an error is not present from these statements alone.”

Affirmed.

13-1741 U.S. v. Harris

Appeal from the United States District Court for the Southern District of Illinois, Murphy, Herndon, JJ., Williams, J.

SENTENCING

Wisconsin Court of Appeals

Criminal
Sentencing — modification

Joseph Hammer, pro se, appeals from an order denying his motion for sentence modification. We affirm. This opinion will not be published.

2013AP1744-CR State v. Hammer

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

Attorneys: For Appellant: Hammer, Joseph, pro se; For Respondent: Loebel, Karen A., Milwaukee; Wittwer, Jacob J., Madison

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

Criminal
Sentencing — reasonableness

A sentencing judge’s comments that the defendant had previously received lenient sentences do not show that the sentence was unreasonable.

“Although perhaps ill-advised and certainly not necessary, the judge’s speculation falls short of providing a basis for believing that the guideline sentence he imposed was substantively unreasonable. Viewed in context, the comments were a response to defense counsel’s arguments that the judge should impose a sentence below the guideline range. The judge explained that Banks’s marijuana use and continued involvement with guns and drugs were part of a troubling pattern of poor choices in his life and peer group. The judge explicitly noted that he could not and was not imposing a sentence to make up for the light sentences Banks received in state court. But he believed Banks’s record did not fully reflect his past relevant conduct. That conclusion and the sentence based on it did not amount to an abuse of discretion.”

Affirmed.

13-3527 U.S. v. Banks

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
Sentencing — reasonableness

Where the district court explicitly rejected the defendant’s argument that her mental health warranted a lower sentence, there was no procedural unreasonableness.

“After noting that she had considered all of the issues presented, the district court judge concluded, ‘You’re responsible for your conduct. I do believe, truthfully, that [Assistant U.S. Attorney] Mr. Bass considered all the sentencing factors in coming to his recommendation for your sentence. And, certainly, those factors include your mental health and your physical condition with your MS, which I’m very glad to say is controlled at this time.’ Id. at p.272. Further noting Davis’ mental health condition, the district court judge encouraged Davis to continue with treatment through psychotherapy and medication, both in prison and after her release. Id. at 272, 275, 277. She also ordered that as a condition of probation Davis participate in psychiatric services or a program of mental health counseling and treatment, and that she take all prescribed medications as directed by the treatment providers. Id. at 275. These multiple discussions demonstrate that Davis’ mental and physical health were not only considered, but forefront in the judge’s mind during sentencing.”

Affirmed.

13-3297 U.S. v. Davis

Appeal from the United States District Court for the Central District of Illinois, Myerscough, J., Rovner, J.

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

Criminal
Sentencing — retaliation

Where the defendant attacked a co-defendant who had testified against him, it was not unreasonable for the district court to impose the statutory maximum, consecutive to the underlying charge.

“That court was well within its discretion in making the retaliation sentence consecutive to the narcotics sentence. The criminal code indicates that ordering a defendant to serve consecutive rather than concurrent sentences which were imposed at different times is the default, and the relevant provision of the Guidelines specifically advises consecutive sentences in this situation. The court appropriately considered the section 3553(a) sentencing factors in deciding between concurrent or consecutive terms, and its choice of the latter was entirely rational. The retaliatory attack on Alvarez was an offense entirely distinct from Rucker’s narcotics offense; moreover, as the district court pointed out, his calculated decision to commit the attack, just days after he assured the court that he was on the road to reform, revealed Rucker to be a genuine threat to the public.”

Affirmed.

13-2760 U.S. v. Rucker

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

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

Criminal
Sentencing — bank robbery

If in the course of committing a bank robbery the robber abducts someone, the minimum punishment is 10 years in prison, but if he kills someone, the minimum is life in prison.

“It’s silly for the government to invoke the statute’s ‘plain Language’ and ‘plain text’ and insist that therefore ‘the sole function of the court is to enforce it according to its terms,’ or to say that ‘the “if death results” language may be considered redundant to the phrase, “kills any person”’ (emphasis added). The statute is a mess. Nevertheless it is apparent what the drafters of the statute and the Congress that enacted it and the President who signed it intended, or if asked (for it is uncertain who ever read the provision, buried as it is in a 356-page statute, Pub. L. 103-322, 108 Stat. 1796 (Sept. 13, 1994)), would have said they intended: if in the course of committing a bank robbery the robber abducts someone, the minimum punishment is ten years in prison, but if he kills someone the minimum is life in prison. United States v. Parks, 700 F.3d 775, 778–79 (6th Cir. 2012); cf. United States v. Turner, 389 F.3d 111, 120–21 (4th Cir. 2004). We know this is what was intended because the confusing ‘if death results’ passage was substituted for ‘punished by death if the verdict of the jury shall so direct,’ Pub. L. 103-322, § 60003(a)(9), 108 Stat. 1969 (Sept. 13, 1994), in more than a dozen provisions of the federal criminal code, in order to eliminate the possibility that a jury would impose a death sentence for a bank robbery in which no one died. See H.R. Rep. No. 103- 466, at pp. 12–15 (March 25, 1994). The change had nothing to do with abduction.”

Affirmed.

13-1812 U.S. v. Vance

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

Wisconsin Court of Appeals

Criminal
Sentencing — modification

Joseph Hammer, pro se, appeals from an order denying his motion for sentence modification. We affirm. This opinion will not be published.

2013AP1744-CR State v. Hammer

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

Attorneys: For Appellant: Hammer, Joseph, pro se; For Respondent: Loebel, Karen A., Milwaukee; Wittwer, Jacob J., Madison

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

Criminal
Sentencing — amount of loss

In calculating amount of loss, the district court improperly attributed losses caused by a third party to the defendants.

“The government argues we can infer the district court’s reasoning based on the fact that the court found the Domnenkos knowingly and intentionally defrauded Countrywide, the loss of $600,000 was by no means a small amount, and that the Domnenkos acted sophisticatedly and with premeditation. We reject this argument because it reads any reasonable foreseeability analysis out of the Sentencing Guidelines. If the government was correct, practically every defendant convicted in every fraud case could be held responsible for every resulting loss, foreseeable or not, since everyone convicted under 18 U.S.C. § 1343 must have had an intent to defraud. See Sheneman, 682 F.3d at 628. But that is not what the Guidelines say. The loss must be ‘reasonably foreseeable,’ which requires some causation analysis, and that was not done here. See United States v. Whiting, 471 F.3d 792, 802 (7th Cir. 2006) (noting there must be both ‘but for’ and ‘legal’ causation for the enhancement to apply). We express no opinion on whether or not the loss is reasonably foreseeable to the Domnenkos, but such a determination should be made and explained by the district court. We therefore remand to give the court an opportunity to explain its rationale in attributing that loss amount to the Domnenkos.”

Affirmed in part, and Reversed in part.

13-1004 & 13-1005 U.S. v. Domnenko

Appeals from the United States District Court for the Northern District of Illinois, Norgle, J., Williams, J.

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

Criminal
Sentencing — crime of violence

Where the district court relied on post-sentencing conduct in holding that a defendant was improperly classified as a career offender at sentencing, the new sentence must be vacated.

“Coleman argues that this case is distinguishable from Hawkins because we need not guess as to whether the sentence would have been lower absent the career offender designation, given that at resentencing the district court sentenced him to only 120 months. That argument is problematic for a number of reasons. First, the resentencing in this case was by a different district court judge years after the original sentence, and the transcript indicates that the district court considered the defendant’s conduct in prison and his participation in prison programs as evidence militating towards a lower sentence. The district court on resentencing held that there was not anything mitigating in Coleman’s criminal history, and noted that although the forcible sexual assault was not a crime of violence for career offender designation, the details of the sexual assault in the criminal complaint were ‘disturbing’ and could be considered under § 3553(a). Coleman did not dispute the facts in the Presentence Report (PSR) before the district court concerning that offense, which indicated that the sexual assault was forcible and that the victim was 14 years old. There is, in short, no reason to believe that a district court — faced with a crime of such a nature — would be inclined to revise the sentence based solely on whether the elements of that offense necessarily fall within the career offender provision’s definition of a crime of violence. It is the type of crime that one would expect to fall within such a category and that is at a minimum analogous to such crimes, and a court would properly consider that in determining the appropriate sentence in light of the § 3553(a) factors. The mitigating factors identified at sentencing involving Coleman’s conduct in prison would not have been factors at the original sentence and therefore the lower sentence resulting from that consideration does not inform us as to whether the original sentence would have been lower.”

Reversed and Remanded.

12-2621 & 12-2762 U.S. v. Coleman

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

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

Criminal
Sentencing — child pornography

Although the sentencing guidelines underwent numerous revisions during the course of the defendant’s criminal conduct, any error in calculating the guidelines was harmless.

“[W]e conclude that if the district court made any error in calculating the range for Count I, it was harmless. First, we note that the final guidelines range was not, in fact, life. As the district court recognized, the statutory maximum for Count I is twenty years; for Count II, fifteen years; for Count III, five years; for Count IV, twenty years; and for Count V, ten years. ‘Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.’ U.S.S.G. § 5G1.1. For Count I, then, the range of ‘life’ was effectively reduced to twenty years, the statutory maximum. For Counts II through V, the range of ‘life’ was reduced to the sum of the statutory maximum sentences as if they were applied consecutively, in this instance, fifty years (fifteen plus five plus twenty plus ten). See United States v. Boroczk, 705 F.3d 616, 622 (7th Cir. 2013), cert. denied, 134 S. Ct. 288 (2014) (explaining that a guidelines range of life defaults under section 5G1.1(a) to the sum of the statutory maximum sentences for each count). Because the range for each group was restricted by the statutory maximum, the government’s contention that the range was life no matter whether the court included Count I falls flat. Second, the court ordered that the sentence for Count IV be served consecutively to the sentence for Count I, and that the sentences for the remaining counts be served concurrently with those counts. Thus, if the court erred in calculating the sentencing range for Count I, the government’s theory alone could not assure us that the error had no effect on the court’s selection of a sentence.”

Affirmed.

12-3104 U.S. v. Fletcher

Appeal from the United States District Court for the Northern District of Indiana, Van Bokkelen, J., Rovner, J.

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