Weekly Case Digests March 30- April 3, 2015

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CIVIL

U.S. Court of Appeals  For the Seventh Circuit
Admiralty – Burden of proof

The district court correctly declined to shift the burden of proof, where the defendant lacked peculiar information unavailable to the plaintiff.

“For a number of reasons, we decline to apply this type of burden shifting in this case. First, the information at issue is not ‘peculiarly within the knowledge’ of Plano. Campbell, 365 U.S. at 96. In each of the above-cited cases where the burden of proof was shifted, the adversary itself had peculiar knowledge of the information at issue. Here, in contrast, not only does Plano lack ‘peculiar’ (i.e., ‘exclusive’) knowledge of the information at issue, it lacks any knowledge whatsoever—Plano simply has no information about how the shipping container was actually loaded. Appellants argue that Plano has a closer relationship with the foreign companies that possess this knowledge, and therefore that Plano has easier access to that information. Even if that is true, those companies are separate entities from Plano, and the mere fact that Plano may have a closer relation-ship with them does not bring this information peculiarly within Plano’s knowledge. Moreover, appellants have not demonstrated that Plano would actually be able to acquire the information at issue. The mere fact that Plano has, in the past, had contractual relationships with the foreign companies that possess the relevant information does not mean that Plano currently has unfettered access to that information. It is similarly irrelevant that a Plano vice-president has a personal home in the country where those companies are based. China is vast (over 9.5 million square kilometers) and has the largest population on earth; appellants fails to explain how Plano’s vice-president would have easy access to the information at issue. See Central Intelligence Agency, The World Factbook: China (2014), available at https://www.cia.gov/library/publications/the-world-factbook/geos/ch.html (last visited Mar. 3, 2015). In sum, fairness does not dictate that the burden of proof on this is-sue be shifted to a party with no actual knowledge of the relevant information and, it seems, no ready way to acquire it.”

Affirmed.

14-1171 & 14-1189 Kawasaki Kisen Kaisha, Ltd., v. Plano Molding Co.

Appeals from the United States District Court for the Northern District of Illinois, Leinenweber, J., Flaum, J.

U.S. Court of Appeals For the Seventh Circuit
Bankruptcy – Discharge

A debtor can discharge a debt in bankruptcy, even if his agent committed fraud, provided that the debtor himself was not complicit in the fraud.

“Sullivan’s ‘debt not the debtor’ theory is consistent with the language of the fraud exception to discharge, quoted above. But this just illustrates the limitations of literal interpretation of statutory language. If his interpretation were correct, then had Chung assigned the debt that she owed to Sullivan to some innocent third party, who as a result of the assignment became a debtor of Sullivan and later went bankrupt, the assignee could not discharge the debt in bankruptcy, because the debt had originated in fraud—even if Chung had lied to the assignee about the debt’s fraudulent origin. That would make no sense. It would be a form of attainder: an innocent person punished for the misdeed of an ancestor, or in this case an assignor.”

Affirmed.

14-3213 Sullivan v. Glenn

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

Wisconsin Court of Appeals
Civil Procedure – mootness

APPEAL from an order of the circuit court for Milwaukee County:  MICHAEL GUOLEE, Judge.  Affirmed.

DISTRICT I; Milwaukee; MICHAEL GUOLEE, Curley, P.J., Kessler, J., Thomas Cane

2014AP000777 Mohammad Samir Siddique v. Board of Regents

U.S. Court of Appeals For the Seventh Circuit
Civil Rights – ADA – Rehabilitation Act

A patient may sue a hospital under the ADA and the Rehabilitation Act.

“Compensatory damages are available under the Rehabilitation Act, Barnes v. Gorman, 536 U.S. 181, 189 (2002), but may be available only for claims of intentional  discrimination. See CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 & n.4 (7th Cir. 2014). Reed’s allegations that the hospital, with knowledge of her disability, purposely denied her access to the computer that helps her communicate, permit an inference of intentional discrimination sufficient to sup-port a claim for compensatory damages. That claim is legally sufficient, at least at the pleading stage. Whether evidence will support Reed’s claim is a question for later in the case.”

“Second, Reed may also seek compensatory damages under the Rehabilitation Act for retaliation based on her allegation that the hospital threw her into a ‘seclusion room’ when she asked for her computer. The Act does not limit retaliation claims to the employment context. Section 794a(a)(2), which provides remedies for violations of the Re-habilitation Act outside of employment, expressly incorporates the ‘remedies, procedures, and rights’ available under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d–7. Those provisions include that law’s anti-retaliation provision. See 34 C.F.R. § 100.7(e). Barker v. Riverside County Office of Educ., 584 F.3d 821, 825 (9th Cir. 2009); Weber v. Cranston School Comm., 212 F.3d 41, 47–48 (1st Cir. 2000). Other circuits have also recognized that the Rehabilitation Act provides for retaliation claims outside the employment context. See, e.g., D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 41 (1st Cir. 2012); Mershon v. St. Louis Univ., 442 F.3d 1069, 1074 & n.3 (8th Cir. 2006); Hoyt v. St. Mary’s Rehab. Ctr., 711 F.2d 864, 867 (8th Cir. 1983).”

Vacated and Remanded.

14-2592 Reed v. Columbia St. Mary’s Hospital

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

U.S. Court of Appeals For the Seventh Circuit
Civil Rights – Cruel and unusual punishment

A claim alleging that a prisoner was forced to wear a see-through jumpsuit in violation of the Eighth Amendment was improperly dismissed.

“King has stated a viable claim that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment. He complains that he was degraded and humiliated by being transported in a see-through jumpsuit that left him exposed in front of other inmates as well as guards of both sexes. Such compelled and prolonged nudity seems to be, for present purposes, analogous to a lengthy strip-search. King asserts that there was no legitimate reason for this policy, a point he supports with specific factual allegations. Detainees arriving at the intake facility from other jails were not wearing similar garments, which at least tends to suggest that such clothing is not necessary for safe and secure penal transfers. Moreover, King was strip-searched before and after his transfer, and he remained shackled and under surveillance throughout. These facts tend to suggest there was no security reason for keeping transferees in a state of semi-nudity. Moreover, King’s allegation that he was mocked when he objected to the jumpsuit is enough at this stage to raise at least the possibility that the policy was driven by a desire to humiliate or harass. See, e.g., Calhoun, 319 F.3d at 939 (reversing dismissal where prisoner alleged he was subjected to strip searches conducted in deliberately harassing and humiliating way).”

Reversed and Remanded.

13-1769 King v. McCarty

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

U.S. Supreme Court
Constitutional Law – Supremacy clause

The Supremacy Clause does not confer a private right of action, and Medicaid providers cannot sue for an injunction requiring compliance with §30(a) of the Medicaid Act.

The Supremacy Clause instructs courts to give federal law priority when state and federal law clash. Gibbons v. Ogden, 9 Wheat. 1, 210. But it is not the “ ‘source of any federal rights,’ ”

Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 107, and certainly does not create a cause of action. Nothing in the Clause’s text suggests otherwise, and nothing suggests it was ever understood as conferring a private right of action. Article I vests Congress with broad discretion over the manner of implementing its enumerated powers. Art I., §8; McCulloch v. Maryland, 4 Wheat. 316, 421. It is unlikely that the Constitution gave Congress broad discretion with regard to the enactment of laws, while simultaneously limiting Congress’s power over the manner of their implementation, making it impossible to leave the enforcement of federal law to federal actors.

567 Fed. Appx. 496, reversed.

14-15 Armstrong v. Exceptional Child Center, Inc.

Scalia, J.; Breyer, J., concurring; Sotomayor, J., dissenting.

Wisconsin Court of Appeals
Contracts – promissory estoppel

APPEAL from an order of the circuit court for Milwaukee County:  MICHAEL D. GUOLEE, Judge.  Affirmed.

DISTRICT I; Milwaukee; MICHAEL D. GUOLEE, Curley, P.J., Kessler, Brennan, JJ.

2014AP001022 Jerome E. Randall v. PNC Capital Markets LLC

U.S. Court of Appeals For the Seventh Circuit
Employment – FLSA – overtime

Window washers are exempt from the overtime provisions of the FLSA.

“Nowhere does the Department engage with the primary reason for treating CCS’s window washers as commission workers—their irregular work hours. Nowhere does it suggest that the window washers will be better off if paid overtime, which could induce the company to reduce its hourly wage (for that wage is far above the minimum wage). The Department seems obsessed with its incomplete, arbitrary, and essentially mindless catalog of sellers lacking ‘a retail concept’—a catalog that, to repeat, despite its inordinate length does not include window washing. The brief cites departmental regulations that attempt to define a ‘retail or service establishment’ by listing factors of dubious relevance, such as that ‘75 per centum of [its] annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry,’ 29 C.F.R. § 779.312, or that the establishment ‘serves the everyday needs of the community in which it is located.’ 29 C.F.R. § 779.318. We don’t see the connection between these criteria and the reasons for excusing certain employers from the overtime provision of the Fair Labor Standards Act. But nor does CCS fail to satisfy these criteria.”

Affirmed.

13-3818 Alvarado v. Corporate Cleaning Services, Inc.

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

Wisconsin Supreme Court
Employment – Wage claims

Where a collective bargaining agreement provided for unpaid meal breaks in violation of state law, it was reasonable for the DWD not to seek back pay.

“[T]his case involves two parties represented by counsel who prepared information and submitted it for review to the agency investigator.  The plaintiffs appealed and later requested reconsideration from the agency.  The facts were limited and undisputed.  There is no question that the regulation was promulgated by DWD and no question that it is the agency charged with administering and resolving employment disputes.  We therefore treat the DWD decision as one by an agency interpreting its own rules.  As noted above, the standard we employ when reviewing an agency’s interpretation of its own rules is that it is due controlling weight.  This recognizes the expertise and experience of DWD in both legal questions raised by employment disputes and technical matters such as formulas for back-pay calculations.  See Kuhnert v. Advanced Laser Machining, Inc., 2011 WI App 23, ¶12, 331 Wis. 2d 625, 794 N.W.2d 805 (stating that ‘the department’s methodology for calculating . . . overtime pay is entitled to great weight deference.  . . . [N]either the statutes nor the administrative code define “regular rate of pay” or the appropriate method for calculating it.’)”

Reversed and Remanded.

2013AP265 Aguilar v. Husco International, Inc.

Crooks, J.

Wisconsin Court of Appeals
Employment – wrongful termination – emotional distress

APPEAL from an order of the circuit court for Dane County:  FRANK D. REMINGTON, Judge.  Affirmed.

DISTRICT IV; Dane; FRANK D. REMINGTON, Blanchard, P.J., Lundsten, Kloppenburg, JJ.

Wisconsin Court of Appeals
Family – property division – child support – maintenance

APPEAL from a judgment of the circuit court for Sauk County:  PATRICK J. TAGGART, Judge.  Affirmed.

DISTRICT IV; Sauk; PATRICK J. TAGGART, Blanchard, P.J., Sherman, Kloppenburg, JJ.

2013AP001524 Jennifer Louise Opperman v. Wade William Opperman

Wisconsin Court of Appeals
Family – maintenance

APPEAL from an order of the circuit court for Milwaukee County:  WILLIAM SOSNAY, Judge.  Affirmed.

DISTRICT I; Milwaukee; WILLIAM SOSNAY, Kessler and Brennan, JJ., Thomas Cane

2014AP000873 Verlaine L. Sainio v. Jeffrey W. Sainio

U.S. Court of Appeals For the Seventh Circuit
Immigration – Motions to reopen

Where the BIA ignored a potentially meritorious argument when deciding a motion to reopen, it abuses its discretion.

“Moreover, even if the IJ would have wanted corroboration beyond his testimony, a birth certificate was not the only evidence that would have sufficed. (In fact, because Chen claimed that he was persecuted for violating the one-child policy, he necessarily could not obtain a valid birth certificate for his son because birth certificates are not issued for unregistered children. Yet his attorney misadvised him to get one.) As Chen notes, he submitted corroboration other than the birth certificates. Meredith testified that he had seen both of Chen’s children in China, the letters from Chen’s parents and Chen’s wife both discussed that Chen’s son was living with Chen’s parents, and photos showed Chen’s wife with their son. A competent attorney, Chen argued in his motion to reopen, could have overcome the IJ’s reasons for discounting this further evidence or explained why additional corroborating evidence could not be reasonably attained. The Board, however, addressed none these contentions either.”

Petition Granted.

14-2411 Chen v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Per Curiam.

U.S. Court of Appeals for the Seventh Circuit
Immigration – Judicial Review

Where an asylum applicant filed a motion to reconsider, and then appealed based on the underlying denial, the court lacks jurisdiction over the appeal.

“He’s target is wrong because we have jurisdiction to review only the denial of his motion to reconsider. See 8 U.S.C. § 1252(b)(1). ‘[T]he case law could not be clearer on this issue; a motion to reconsider does not toll the initial 30-day filing deadline for seeking judicial review of the underlying removal order. The finality of a removal order “is not affected by the subsequent filing of a motion to reconsider’’” Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir. 2006), quoting Stone v. INS, 514 U.S. 386, 405 (1995). He’s September 24, 2014 petition for review was untimely with regard to the Board’s underlying order denying relief dated May 27, 2014, thus depriving us of jurisdiction to review that order. Because He did not challenge the denial of his motion to reconsider, he has waived any arguments he might have made to challenge the only decision over which we have jurisdiction. See Tian v. Holder, 745 F.3d 822, 827 (7th Cir. 2014); Asere, 439 F.3d at 380–81.”

Petition Denied.

No. 14-3104 He v. Holder

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

Wisconsin Court of Appeals
Insurance – automobile policies – government-owned vehicle exclusions

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  CHRISTOPHER R. FOLEY, Judge.  Affirmed.

DISTRICT I; Milwaukee; CHRISTOPHER R. FOLEY, Curley, P.J., Brennan, J., Thomas Cane

2014AP001187 Patricia Lascelle v. State Farm Automobile Insurance

U.S. Court of Appeals For the Seventh Circuit
Public Health – Disability

Where the ALJ did not consider the employment available to a disability applicant, the denial of benefits must be reversed.

“As we said in the Browning case, we ‘have no idea what [is] the source or accuracy of the number of jobs that vocational experts (including the one in this case, whose estimates the administrative law judge accepted without comment) claim the plaintiff could perform that exist in the plaintiff’s area, the region, or the nation. There is no official source of number of jobs for each job classification in the Dictionary of Occupational Titles, and while there are unofficial estimates of jobs in some categories, the vocational experts do not in general, and the vocational expert in this case did not, indicate what those data sources are or vouch for their accuracy. And many of them estimate the number of jobs of a type the applicant for benefits can perform by the unacceptably crude method of dividing the number of jobs in some large category (which may be the only available data) by the number of job classifications in the category, even though there is no basis for assuming’ that there is the same number of jobs in each narrow category. 766 F.3d at 709 (emphasis added). There is no indication that the estimate of the number of jobs that the applicant in this case could fill (if the administrative law judge’s estimate of his capacity to work is correct, as it may very well not have been) is any more accurate than it was in Browning.”

Reversed and Remanded.

14-2303 Voigt v. Colvin

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

Wisconsin Court of Appeals
Torts – negligence – causation – damages

APPEAL from a judgment of the circuit court for Racine County:  GERALD P. PTACEK, Judge.  Affirmed.

DISTRICT II; Racine; GERALD P. PTACEK, Higginbotham, Sherman, Kloppenburg, JJ.

2014AP000822 Ruth White v. Richard A. Rasner

Wisconsin Court of Appeals
Trusts and Estates – breach of fiduciary duty

APPEAL from an order of the circuit court for La Crosse County:  SCOTT L. HORNE, Judge.  Affirmed.

DISTRICT IV; La Crosse; SCOTT L. HORNE, Lundsten, Sherman, Kloppenburg, JJ.

CRIMINAL

Wisconsin Court of Appeals
Armed Robbery – sufficiency of the evidence

APPEAL from a judgment of the circuit court for Milwaukee County:  JEFFREY A. WAGNER, Judge.  Affirmed.

DISTRICT I; Milwaukee; JEFFREY A. WAGNER, Kessler and Brennan, JJ., Thomas Cane

2014AP001184-CR           State v. Anthony Montrell Perkins

U.S Court of Appeals For the Seventh Circuit
Criminal Procedure – Discovery

Even if the government failed to comply with its discovery obligations, it was not error to admit evidence in rebuttal, where the defendant was warned of that possibility.

“[E]ven if the government did not comply with Rule 16, that does not mean that the district court erred in admitting the x-ray as rebuttal evidence. Trial courts have ‘discretion to fashion a remedy for the government’s noncompliance with Rule 16, and this court will not disturb the district court’s decision absent a showing of abuse of discretion and prejudice.’ United States v. Warren, 454 F.3d 752, 760 (7th Cir. 2006) (citations omitted); see United States v. Breland, 356 F.3d 787, 797 (7th Cir. 2004). Tomkins has not made that showing here. Even though Tomkins was pro se, the court’s refusal to allow the x-ray during the government’s case-in-chief and clear warning that the x-ray could come in as rebuttal evidence provided a reasonable remedy for any Rule 16 violation. The court’s rulings allowed Tomkins adequate opportunity to adjust his defense, especially since Tomkins must have known how the contents of the device had been arranged. Although Tomkins sought a new trial, that remedy is appropriate ‘only when “all other, less drastic remedies are inadequate.”’ Warren, 454 F.3d at 760 (quoting United States v. De La Rosa, 196 F.3d 712, 715 (7th Cir. 1999)). Tomkins has failed to convince us that the less drastic remedy adopted by the district court was unreasonable.”

Affirmed.

13-2234 U.S. v. Tomkins

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

Wisconsin Court of Appeals
Criminal Procedure – right to present defense

APPEAL from an order of the circuit court for Milwaukee County:  STEPHANIE ROTHSTEIN, Judge.  Reversed and cause remanded with directions.

DISTRICT I; Milwaukee; STEPHANIE ROTHSTEIN, Curley, P.J., Kessler, J., Thomas Cane

2014AP001130-CR           State v. David A. Allen

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance – plea withdrawal

APPEALS from judgments and an order of the circuit court for Polk County:  MOLLY E. GALEWYRICK, Judge.  Affirmed.

DISTRICT III; Polk; MOLLY E. GALEWYRICK, Hoover, P.J., Stark, Hruz, JJ.

2014AP001248-CR           State v. Patrick K. Tourville

U.S. Court of Appeals For the Seventh Circuit
Evidence – Other acts

It was not an abuse of discretion to admit evidence of payroll tax violations in a prosecution for failure to pay income taxes, but even if it was, the error was harmless, where the evidence of guilt was overwhelming.

“True, the district court could have explained its reasoning more fully on the record. As we said in Gomez, the court must, in every case, ‘assess whether the probative value of the other-act evidence is substantially outweighed by the risk of unfair prejudice and may exclude the evidence under Rule 403 if the risk is too great.’ 763 F.3d at 860. Gomez was decided after Curtis’s trial and so the district court did not have the benefit of its reasoning. The court did not expressly engage in that analysis on the record here, but any error was harmless. See Fed. R. Crim. P. 52(a); Gomez, 763 F.3d at 863 (evidentiary errors are subject to review for harmlessness). The test for harmless error is whether, in the mind of the average juror, the prosecution’s case would have been significantly less persuasive had the improper evidence been excluded. Simon, 727 F.3d at 697; United States v. Klebig, 600 F.3d 700, 722 (7th Cir. 2009). The government produced substantial evidence that Curtis knew he was obligated to pay his taxes, had the money to do so, and chose to use that money to pay for other things instead. The payroll tax evidence was lost in a sea of far more damning evidence demonstrating Curtis’s intent. For example, during the three charged years, Curtis had adjusted gross income of more than $1.4 million but paid none of it toward his corresponding tax liabilities of approximately $378,000 for that same time period. Instead, he spent more than $1.1 million on personal expenses that included $142,916 in life insurance premiums; $43,266 for a new Lincoln Navigator luxury SUV; $17,730 worth of wine; $32,775 in donations and political contributions; $6,945 on jewelry; and $10,891 on his pets. Presented with these expenditures and a list that also included gifts, firearms, restaurants, department stores, and other purely discretionary spending, any jury would conclude that Curtis had the money to pay his taxes (at least in part) and simply chose not to. The government’s case would have been equally persuasive without the payroll tax evidence. Any error was therefore harmless.”

Affirmed.

14-2069 U.S. v. Curtis

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

Wisconsin Supreme Court
Evidence – Other acts

The circuit court did not err, in a prosecution for sexual assault of a child, in admitting the testimony of the defendant’s sister that the defendant had sexually assaulted her 25 years earlier.

“Though Hurley was 25 years younger when he assaulted J.G., we do not conclude this is a significant distinction given the many similarities discussed above.

Further, even though the other-acts evidence was removed in time, as the circuit court noted, courts have upheld the admission of other-acts evidence that was removed in time due to the similarity between the incidents.  See Plymesser, 172 Wis. 2d 583 (upholding the admissibility of 13 year old evidence); Kuntz, 160 Wis. 2d 722 (upholding the admissibility of 16 year old evidence).  Given the multitude of similarities outlined above, we conclude that the J.G. assaults were relevant evidence, because they related to a fact of consequence in the case and had strong probative value.”

Reversed and Remanded.

2013AP558-CR State v. Hurley

Gableman, J.

U.S. Court of Appeals For the Seventh Circuit
Firearms – Sentencing – ACCA

Where state court records do not show that the defendant was subject to a ten-year sentence on a drug conviction, it cannot be used to find the defendant an armed career criminal.

“But the Supreme Court’s decision in Rodriquez adds an evidentiary hurdle to our holding in Perkins. Rodriquez requires the government to provide evidence from the record that the defendant was in fact subject to the enhanced recidivist penalties that could elevate his sentence past the ten-year mark. 553 U.S. at 388–89. In imposing this additional requirement, the Supreme Court eliminated the possibility of a hypothetical approach in which a court could assume that a recidivist enhancement applied merely because it could apply. Therefore, under Rodriquez, if state court records do not demonstrate that Lockett actually faced the possibility of a recidivist enhancement, the 1990 convictions cannot be used as qualifying offenses under the ACCA.”

Reversed and Remanded.

13-2200 U.S. v. Lockett

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

Wisconsin Court of Appeals
Procedure – severance – ineffective assistance

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  DENNIS P. MORONEY, Judge.  Affirmed.

DISTRICT I; Milwaukee; DENNIS P. MORONEY, Kessler and Brennan, JJ., Thomas Cane

2014AP001575-CR           State v. Clifton Robinson

Wisconsin Court of Appeals
Motor Vehicles – implied consent

APPEAL from an order of the circuit court for Eau Claire County:  JON M. THEISEN, Judge.  Affirmed.

DISTRICT III; Eau Claire; JON M. THEISEN, HOOVER, P.J.

2014AP001696-FT            County of Eau Claire v. Scott S. Mahler

Wisconsin Court of Appeals
Search and Seizure – warrantless searches – probable cause – automobiles

APPEAL from a judgment of the circuit court for Milwaukee County:  CLARE L. FIORENZA, Judge.  Affirmed.

DISTRICT I; Milwaukee; CLARE L. FIORENZA, Curley, P.J., Kessler, J., Thomas Cane

2014AP001451-CR           State v. Marshall S. Anderson

U.S. Court of Appeals  For the Seventh Circuit
Sentencing – Supervised release – conditions

Where the district court imposed, as a condition of supervised release, that the defendant submit to suspicionless searches, without explanation, the condition must be vacated.

“Bowser also argues that the district court erred in imposing a condition of supervised release authorizing suspicionless searches of his person, home, and effects. The government confesses error, acknowledging that United States v. Farmer, 755 F.3d 849, 854 (7th Cir. 2014), concluded that a condition of release authorizing suspicionless searches is improper when the court does not connect that condition to the underlying offense. Here, the court said only that the search condition was imposed based on ‘the nature of the instant offense,’ without elaborating. Given the brevity of the court’s comment, we accept the government’s confession of error.”

Affirmed in part, and Remanded in part.

14-1237, 14-1585 & 14-1592 U.S. v. Miller

Appeals from the United States District Court for the Southern District of Indiana, Pratt, J., Tinder, J.

Wisconsin Court of Appeals
Sentencing – modification – Substance Abuse Program

APPEALS from judgments and an order of the circuit court for Oconto County:  MICHAEL T. JUDGE, Judge.  Affirmed and cause remanded with directions.

DISTRICT III; Oconto; MICHAEL T. JUDGE, Hoover, P.J., Stark, Hruz, JJ.

2014AP001219-CR           State v. John C. Birk

Wisconsin Court of Appeals
Sentencing – discretion

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  WILLIAM S. POCAN, Judge.  Affirmed.

DISTRICT I; Milwaukee; WILLIAM S. POCAN, Curley, P.J., Kessler, J., Thomas Cane

2014AP001968-CR           State v. Carrington Ross

United States Court of Appeals For the Seventh Circuit
Search and Seizure – Search Warrants – probable cause

A search warrant affidavit detailing a largely online relationship between the defendant and a minor victim established probable cause to seize digital and non-digital storage devices found at the defendant’s residences.

“Reichling ignores the quoted text messages in the affidavit indicating that he was physically following the victim. The text messages mention the victim’s appearance, her lack of a tan while she was at a swimming pool, and her boyfriend. It does not require a great leap of the imagination to think that a person physically stalking a minor from at least July 2012 (when ‘Nathan Solman’ appeared in the victim’s backyard) to June 2013 would record images of the victim using either a digital or non-digital recording device. Regardless of whether such images would qualify as ‘contraband’ (such as child pornography), they would constitute ‘evidence of a crime,’ and would supply a basis for probable cause. See Gates, 462 U.S. at 238. Similarly, it would be reasonable for the police and the issuing judge to view the facts in the affidavit—including those indicating Reichling committed a sex offense with a minor victim in 1993 and had been a collector of child pornography since at least 2010—as providing “ominous hint[s]” of what might be found on both digital and non-digital media in Reichling’s residence. See Newsom, 402 F.3d at 783. After all, experienced investigator/affiants and reviewing magistrates are entitled to draw reasonable inferences. Bearing in mind the ‘great deference’ we must give the issuing judge’s determination, we find the affidavit supplied a ‘substantial basis’ for the judge’s probable cause finding as to non-digital storage media as well as digital. See Gates, 462 U.S. at 236.”

Affirmed.

14-2941 U.S. v. Reichling

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