Weekly Case Digests — July 27-31, 2015

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7^th Circuit Court of Appeals – Civil

Civil

7^th Circuit Court of Appeals

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Unreasonable Seizure of Leasehold – Fourth Amendment

No. 14-3388

Where failure of the sheriff to meet the 10-day deadline to complete an eviction pursuant to a court-ordered writ of restitution held not to violate the Fourth Amendment because the deadline is imposed by state law rather than federal.

“We agree that the eviction did not violate the Fourth Amendment even if the sheriff missed the 10‐day deadline. And not because of the skunk’s intervention. The 10‐day deadline is imposed by state law rather than by the Fourth Amendment. The standard governing the legality of a search or seizure challenged under the Fourth Amendment is furnished by federal rather than state law. Virginia v. Moore, 553 U.S. 164, 176 (2008); Sroga v. Weiglen, 649 F.3d 604, 607 (7th Cir. 2011); Jackson v. Parker, 627 F.3d 634, 640 (7th Cir. 2010). And the standard is reasonableness, not ten days; and even if the sheriff’s team should not have blanched at having to confront a skunk, Kreil hasn’t shown that the length of time it took the sheriff to remove all of Kreil’s possessions was unreasonable. It’s true that in Wolf‐Lillie v. Sonquist, 699 F.2d 864 (7th Cir. 1983), a district court’s holding that a writ of restitution executed after the state’s statutory deadline violated the Fourth Amendment wasn’t contested on appeal. But even if our opinion in that case could be read as endorsing that district court’s holding, this would not help Kreil because any such reading would be contrary to the Supreme Court’s decision in Virginia v. Moore”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and KANNE and TINDER, Circuit Judges

Class Action Fairness Act – Standing

No. 14-3122 Hilary Remijas v. Neiman Marcus Group, LLC

Where district court erred in dismissing plaintiff claims for lack of standing under Article III of the constitution.

“Injury‐in‐fact is only one of the three requirements for Article III standing. Plaintiffs must also allege enough in their complaint to support the other two prerequisites: cau‐ sation and redressability. As the Supreme Court put it in Clapper, plaintiffs must “show[ ] that the defendant’s actual action has caused the substantial risk of harm.” 133 S. Ct. at 1150, n.5. Neiman Marcus argues that these plaintiffs cannot show that their injuries are traceable to the data incursion at the company rather than to one of several other large‐scale breaches that took place around the same time. This argu‐ ment is reminiscent of Summers v. Tice, 199 P.2d 1, 5 (Cal. 1948), in which joint liability was properly pleaded when, during a quail hunt on the open range, the plaintiff was shot, but he did not know which defendant had shot him. Under those circumstances, the Supreme Court of California held, the burden shifted to the defendants to show who was responsible. Neiman Marcus apparently rejects such a rule, but we think that this debate has no bearing on standing to sue; at most, it is a legal theory that Neiman Marcus might later raise as a defense.”

Reversed and Remanded

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Bankruptcy

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, ROVNER, Circuit Judge, and SPRINGMANN, District Judge.

Abuse of Discretion – Civil Contempt

No. 14-3017 Charles E. Taylor v. Patricia Caiarelli

Appellant Charles E. Taylor appeals district court decision arguing that court erred (1) by refusing to dismiss the appeal as moot; (2) by determining that a ratification order did not violate the statutory discharge and/or plan injunctions; and (3) by determining that a ratification order did not constitute an impermissible collateral attack on a federal judgment.

“Taylor counters that the bankruptcy court’s dismissal order which led to the discharge injunction, was not before the district court on appeal. The discharge injunction remains in place, Taylor argues, with or without a ruling on the orders challenged on appeal. While true, Taylor’s argument ignores the Appellees’ interest in safely returning to the probate court to ratify the assignment. The contempt order, which was before the district court on appeal, rendered the ratification order void ab initio. For the ratification order to be reentered, the Appellees must file a motion for reentry in the probate court.3 And with the discharge injunction in place, any such return to the probate court would risk a repeat violation, and a repeat finding of civil contempt. Thus, so long as the discharge injunction remains in place, the purported settlement provides only partial relief, and the underlying dispute to which the challenged orders arose remains unresolved. See Chafin, 133 S. Ct. at 1023 (a case is moot “only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”) (internal quotation marks and citation omitted).”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: FLAUM, MANION, and HAMILTON, Circuit Judges.

Workers Compensation – Property Interest in Employment – Due Process

No. 14-2746 Peter Akemann v. Patrick J. Quinn

No. 14-2328

John T. Dibble v. Patrick J. Quinn

It is unclear whether motive is relevant to determining “whether a validly enacted statutory amendment eliminating an employee’s property interest complies with procedural due process requirements”

“Plaintiffs ask us to ignore these features of the legislation and instead to divine whether Public Act 97–18 was really motivated by the intent to remove certain individuals. We could not perform this task without considering the motives of the legislators who voted for the law (quite apart from wondering whether plaintiffs have sued the right defendants if the legislation is the heart of their claims). Plaintiffs’ reliance on employment discrimination cases to justify a judicial inquiry into legislative motive is misplaced. Whether a court considers the motive of the defendant in analyzing a plain‐ tiff’s claim varies by context and the type of defendant involved. If the claim is based on a statute (e.g., Title VII) or constitutional provision (e.g., equal protection) that prohibits the defendant from taking an action for a particular reason, then courts naturally must consider motive. See Grossbaum v. Indianapolis‐Marion County Building Auth., 100 F.3d 1287, 1292–94 (7th Cir. 1996) (explaining why relevance of motive or intent depends on context); Fraternal Order of Police Hobart Lodge No. 121, Inc. v. City of Hobart, 864 F.2d 551, 554–57 (7th Cir. 1988) (same). But it is a non sequitur to say that because courts consider motives for some types of claims, they should do so for all types of claims.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: FLAUM, MANION, and HAMILTON, Circuit Judges

Expert Testimony – Qualifications

No. 14-2207 Kent Higgins v. Koch Development Corporation

Where causation expert not entitled to opine on matters too complex for an unassisted jury due to uncertainty surrounding expert’s qualifications and methodology.

“As Judge Tinder articulated when he was a district judge in the Southern District of Indiana, although a doc‐ tor may have “experience diagnosing and treating asthma … that does not make him qualified to ‘assess its genesis.’” Cunningham v. Masterwear, Inc., 2007 WL 1164832, at *10 (S.D. Ind. Apr. 19, 2007). Higgins, however, put forth no evidence that Dr. Haacke has ever treated an‐ other patient for chlorine gas exposure or has any training in toxicology. Nor has Higgins established that Dr. Haacke employed a reliable methodology in forming her causation opinion (even assuming she is qualified to do so). The record demonstrates that Dr. Haacke essentially diagnosed Higgins after listening to his own description of his symptoms and the events at Holiday World—some fourteen months after the fact—and after looking at the results (though not the underlying data) of the pulmonary function study conducted by another doctor the year before. But the record is silent on whether Dr. Haacke considered other possible causes of Higgins’s ailments and, if so, how and why she ruled them out. That is problematic, because Higgins told the district court that Dr. Haacke had assessed the cause of his ailments by employing “differential diagnosis.” “Differential diagnosis” actually refers to a method of diagnosing an ailment, not determining its cause. See Myers, 629 F.3d at 644. “Differential etiology,” on the other hand, is a causation‐determining methodology. Id. But, to be validly conducted, an expert must systematically “rule in” and “rule out” potential causes in arriving at her ultimate conclusion. Id. Higgins made no showing that this was done”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: BAUER, ROVNER, and TINDER, Circuit Judges

Underinsured Motorist Coverage – Anti Stacking Provisions

No. 14-1913 Nationwide Agribusiness Insura v. Toni Dugan

Where insurance policy held as clear an unambiguous on the prohibition of stacking underinsured motorist coverage, negating the requirement coverage.

“In Willison, the Illinois Appellate Court considered the anti-stacking effect of an ”Other Insurance” provision that contained language virtually identical to the language of the “Other Insurance” provision at issue here. Willison, 690 N.E.2d at 1074. The plaintiff in that case argued that the “OTHER INSURANCE” provision did not prohibit stacking because it applied only to policies issued by different carriers, not to multiple policies issued by the same carrier. Id. The court disagreed, stating that the provision’s language “clearly applies to any type of stacking of [underinsured motorist] coverages, whether multiple policy, multiple carrier, or multiple policy, single carrier or multiple vehicle, single carrier.” Id. at 1076 (emphasis added). The court went on to hold that the “OTHER INSURANCE” provision unambiguously prohibited the plaintiff from stacking underinsured motorist coverages. Id. at 1076–77.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.

Malicious Prosecution

No. 14-1351 Charles Howlett v. Jeffrey Hack

Where appellant is held to be preempted from maintaining a malicious prosecution claim against respondent due to availability of adequate state remedy.

“This resolves all of Howlett’s federal claims. What re‐ main are his state‐law false‐arrest and malicious‐prosecution claims against Hack. In a situation like this one, where the state‐law claims have not been the focus of the litigation, the better practice is for the district court to relinquish its juris diction over them. See 28 U.S.C. § 1367(c)(3); Williams Electronics Games, Inc. v. Garrity, 479 F.3d 904, 907 (7th Cir. 2007) (describing the “presumption that if the federal claims drop out before trial, the district court should relinquish jurisdiction over the state‐law claims”). The district court offered no reason for declining to dismiss the remaining supplemental claims. In our view, that is what should have happened. Once the judgment is revised to show that these claims were dismissed without prejudice, Howlett will be free to seek to pursue them in state court.”

Affirmed & Remanded for Limited Purpose

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Civil

7^th Circuit Court of Appeals

Officials: EASTERBROOK, MANION, and SYKES, Circuit Judges.

Illinois Collection Agency Act – Scope

No.  13-2266 Joseph Hawthorne v. NCO Financial Systems, Inc.

No. 13-2264 Rocio Galvan v. NCO Portfolio Management, Inc.

Passive debt buyers qualify as collection agencies as defined under the Act.

“In light of Trice II, the original briefs in this case are now largely obsolete. The parties have filed Rule 28(j) letters agreeing that the state supreme court’s decision in Trice II means that NCO Portfolio acted as a collection agency during the class period. We add our agreement to theirs. The state high court’s decision makes it clear that passive debt buyers using third parties to collect the debt do indeed qualify as collection agencies under section 3 of the Act—under either subsection 3(b) or subsection 3(d)—and this was so even before 2013, when the ICAA was amended to add a specific definition of “debt buyer” to section 2. (Trice II was decided under the pre-2013 version of the Act.)”

Reversed and Remanded

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Bankruptcy

7^th Circuit Court of Appeals

Officials: FLAUM, MANION, and HAMILTON, Circuit Judges.

Student Loan Discharge – Undue Hardship – Good Faith

No. 14-3702 Mark W. Tetzlaff v. Educational Credit Management

Where student debt not discharged in bankruptcy action as appellant did not meet good faith requirement of “undue hardship” doctrine.

“Additionally, Tetzlaff’s argument conflicts with the very nature of the undue hardship analysis, which is an inquiry about the ability of a debtor to pay student loan debt subject to a discharge action. See 11 U.S.C. § 523(a)(8). The bankruptcy court was not required to consider Tetzlaff’s payments to Florida Coastal as evidence of a good faith effort to repay Educational Credit, as his Florida Coastal debt was not included in the discharge action. Furthermore, as the bankruptcy court noted, it seems that Tetzlaff repaid his debt to Florida Coastal largely because he needed the school’s cooperation in releasing his diploma and transcript. Thus, Tetzlaff was motivated by certain incentives to pay down his Florida Coastal debt that do not apply to the repayment of his debt held by Educational Credit. Therefore, we decline to hold that the bankruptcy court erred when it refused to consider the repayment of debt not included in the loan discharge proceeding before it in making a determination of good faith under the Brunner test. Further, we affirm the bankruptcy court’s conclusion that Tetzlaff has not made a good faith effort to pay down his student loan debt”

Affirmed.

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Civil Rights

7^th Circuit Court of Appeals

Officials: BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.

Right to Self Representation – Sixth Amendment

No. 14-1763 Laderian McGhee v. Michael Dittmann

Where failure to unequivocally communicate a desire for self-representation held fatal to prisoner’s claim that he was deprived of his 6^th amendment right to self-representation.

“Similarly, Mr. McGhee’s declaration that he was going to “speak up for [himself]” and that he could not be “expect[ed] …to sit [t]here and…say nothing in [his] own defense” do not clearly communicate a desire to proceed without counsel.23 Mr. McGhee made these statements during the course of an expletive-ridden tirade against the court’s earlier rulings excluding his witnesses and denying the withdrawal of his attorney. During that outburst, he accused the court of trying to “railroad” him and stated that he was not going to “sit…[t]here and accept” it.24 Further, when warned about his behavior, Mr. McGhee responded, “Fuck warned. I’m telling you if I can’t have my witnesses, fuck this trial too.”25 Viewed in this context, Mr. McGhee’s desire to “speak up for [himself]” suggests an intent to disrupt the proceedings rather than a request for self-representation.”

Affirmed

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, MANION, and WILLIAMS, Circuit Judges.

Frivolous Suit

No. 15-1156 Nate Carter v. Homeward Residential, Inc.

Homeowner’s unfocused claim for quiet title to foreclosed home held frivolous on its face.

“The suit is indeed frivolous, like the identical suit (except for the homeowner’s address, mortgage, and several dates) that was before us in Sturdivant v. Select Portfolio Servicing, Inc., 602 Fed. Appx. 351 (7th Cir. 2015), where we agreed with the district court that the suit was frivolous and so affirmed its dismissal. In neither case did the complaint allege anything that might support an inference that the defendants were state actors, suable therefore under 42 U.S.C. § 1983. Nor can we infer or even imagine any alternative basis for supposing that either case is within the jurisdiction of the federal courts.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, MANION, and WILLIAMS, Circuit Judges.

Motion for Extension

No. 14-1936 Ronald Robinson v. Ed Sweeny

Appellant failure to bring Rule 59(e) motion within 28 day period fatal to his claim, and the court will continue to avoid suggestion that mistakes by pro se litigants be excused.

“The Supreme Court has denied having ever “suggested that procedural rules in ordinary civil litigation be interpreted so as to excuse mistakes by those who proceed without counsel,” for “’in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.’” McNeil v. United States, 508 U.S. 106, 113 (1993) (citations and footnote omitted). The first clause in the quoted passage hedges (“in ordinary civil litigation”) and the second is more conjecture than observation. If the courts intend not to excuse procedural mistakes by pro se litigants, the spirit of legal justice would seem to require that someone inform those litigants of the rudiments of federal procedure in order to prevent the kind of pitfall into which Robinson tumbled, tripped up by procedural rules likely to be unintelligible to a lay person, and as a result disabled us from deciding the merits of his case.”

Dismissed

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Tax

7^th Circuit Court of Appeals

Officials: FLAUM, KANNE, and SYKES, Circuit Judges.

Estate Tax Settlement – Abuse of Discretion

No. 14-1216 Maria Billhartz. V. CIR

Where courts failure to adhere to appellants request to vacate settlement agreement with Tax Commissioner did not amount to abuse of courts discretion. The settlement conclusively “established the amount that the Estate could deduct. It was not the province of the Tax Court to determine whether this amount was correct.”

“Second, as we alluded to above, the Estate’s argument is contrary to the very nature of settlements. Consider a lawsuit arising out of a car accident, in which the plaintiff, after consulting with an auto mechanic, initially claims $1000 in damages. The defendant does not think he is actually liable, but fears a large jury verdict and offers to settle for 40% of the plaintiff’s claim ($400). The plaintiff accepts the settlement, but a couple of weeks later her car breaks down, and she discovers that the damage from the accident was more extensive than she initially thought—closer to $2000. Under the Estate’s theory, the plaintiff could then try to vacate the settlement because the parties were “mistaken” as to a “fact”—i.e., that the amount of damage to the plaintiff’s car had been finally determined at the time of the settlement. But, of course, that’s not right: by agreeing to a settlement, the plaintiff waived any right to later argue that she actually deserved more than she previously asked for. It makes no difference that the settlement was calculated as a percentage of the amount claimed by the plaintiff—all monetary settlement amounts can be expressed as a percentage of the amount claimed by the plaintiff.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: FLAUM, KANNE, and SYKES, Circuit Judges

Mergers & Acquisitions – Contract – Court Error

No. 13-2005 Trovare Capital Group, LLC v. Simkins Industries,  Inc.

Actions between parties amounting to intention of continued negotiations in good faith prevented Appellant’s entitlement to “breakup fee” provided for under Letter of Intent between the parties.

“In addition, circumstantial evidence supports the district court’s conclusion. The evidence established that Simkins was aware that communications continued to pass between Appellees and Trovare after the email was sent. He continued to engage Mesirow to broker the deal. And he asked Brant to take over primary responsibility for negotiations in or around September, apparently because negotiations had become either too contentious or too slow with Gadon. Had Simkins intended to terminate negotiations on August 2, we can only assume he would have stepped in to stop negotiations when he saw that they were continuing. Because we cannot disturb the court’s credibility finding, and because the finding is supported by ample record evidence, we find no clear error in the court’s conclusions regarding the August 2 email and Simkins’s intention to go forward in good faith.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges.

SSI Benefits – Judicial Error

No. 15-1444 William Price v. Carolyn

Where appellant denial of SSI benefits improperly denied due to unforced error by Magistrate Judge improper recitation of administrative law judge’s finding.

“The magistrate judge essentially just summarized the administrative law judge’s findings, but made an unforced error when he said that the administrative law judge’s “detailed discussion of Dr. Lee’s records” included a reference to a statement by Dr. Lee “that plaintiff had three episodes of decompensation [mental breakdown] in the last fourteen months, an assertion which is clearly not supported by his records” (emphasis added). No, the records report the three breakdowns, which are three of the four that we noted earlier in this opinion. What the administrative law judge had said was that Dr. Lee’s records did not show repeated and extended episodes of decompensation that would lead to an automatic finding of disability. He rightly did not cite this as a basis for giving Dr. Lee’s opinion little weight, because the form that Lee had filled out concerning Price’s condition asked just for the number of episodes of decompensation, not how long they lasted.”

Reversed and Remanded

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges.

Attorney Fees

No. 15-1313 Katherine Cerajeski v. Greg Zoeller

Where district judges decision to deny plaintiff-appellant claim for attorney fees reversed and remanded due to clear mandates by 42 U.S.C. §1983 and 42 U.S.C. §1988(b).

“The district judge had her own alternative ground, similar to the defendants’, for denying the plaintiff attorneys’ fees: that the claim of an unconstitutional taking, the claim we upheld in rendering judgment in the plaintiff’s favor, was brought directly under the Constitution and not under 42 U.S.C. § 1983—and 42 U.S.C. § 1988(b), the attorneys’ fees statute on which the plaintiff bases her claim for fees, applies by its terms only to claims brought under section 1983 (and certain other statutes not relevant to this case). But section 1983 imposes liability on anyone “who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,” and one of those rights is the right to just compensation for the taking of private property. Although 42 U.S.C. § 1983 isn’t explicitly mentioned in Count III of the complaint, which is captioned “CLAIM FOR PROSPECTIVE RELIEF (FIFTH AMENDMENT TAKINGS CLAUSE),” paragraphs 1 and 11 of the complaint invoke section 1983 and are expressly incorporated in Count III; and paragraph B, on the last page of the complaint, also bases the takings claim on that statute”

Reversed and Remanded

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Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges

Title VII – Americans With Disabilities Act

No. 14-3309 Mark Swanson v. Village of Flossmoor, Illinois

Failure to make a Title VII claim within the prescribed 300 day period is moot if claimant cannot demonstrate that he suffered an adverse employment action on account of his membership in a protected class. Moreover, clear indications from an individual, claiming violations under the ADA, which convey that they are completely unable to work can be fatal to relief.

“Moreover, because Swanson never returned to work after his second stroke, he never experienced the demotion about which he complains. Therefore, he never actually suffered an adverse employment action at all. No financial consequences flowed from this potential job change either. His disability pension was based on his salary as of his last day of active work (September 30, 2009), so he felt no monetary impact from his possible reassignment to a different division.3 As we have said, “not everything that makes an employee unhappy will suffice to meet the adverse action requirement. Rather, an employee must show that material harm has resulted from … the challenged actions.” Traylor v. Brown, 295 F.3d 783, 788–89 (7th Cir. 2002) (alteration in original) (citations and internal quotation marks omitted). Here, Swanson falls far short of demonstrating that he suffered an adverse employment action on account of his membership in a protected class. Therefore, even if his claims were not time-barred, he could not make out a Title VII violation under either the direct or indirect method of proof”

Affirmed

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges.

Removal – Subject Matter Jurisdiction

No. 14-2959 Joseph McCormick v. Independence Life and Annuity

Appellant suit wrongfully removed to federal court.

“Suppose, despite this, that the policy’s value exceeds $75,000. The policy serves as security for the loan. Forget insurance for a moment and consider the situation in which the owner of a parcel of land worth $1 million uses it as security for a $50,000 loan. The borrower does not repay, and the lender seeks to foreclose and sell the parcel to satisfy the debt. What is the amount in controversy: $50,000 or $1 million? The amount is $50,000, because that is what would satisfy the lender’s entire demand on the date the suit was filed. See Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955 (7th Cir. 1998). Similarly, the McCormicks could have satisfied Independence’s demand by paying the $44,000 it claims as interest—and they could have avoided a risk of the policy’s cancellation by paying even less (just enough to keep its cash value positive). The request for an injunction against cancellation therefore does not turn this dispute about $44,000 into a controversy worth more than $75,000.”

Judgment Vacated – Lack of Subject Matter Jurisdiction

Civil

7^th Circuit Court of Appeals

Officials: ROVNER, WILLIAMS, and TINDER, Circuit Judges.

Disability Benefits – Flawed Hypothetical

No. 14-2122

Hypothetical posed to a vocational expert in an administrative proceeding to determine disability benefits must incorporate all of claimant’s limitations supported by the medical record.

“Here, there is medical evidence in the record that Varga has moderate difficulties maintaining concentration, persistence, and pace. Most notably, Dr. Rattan’s assessment of Varga’s mental RFC for the state agency noted moderate difficulties in seven areas related to concentration, persistence, and pace: (1) understanding and remembering detailed instructions; (2) carrying out detailed instruction; (3) maintaining attention and concentration for extended periods; (4) completing a normal workweek without interruption from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; (5) accepting instructions and responding appropriately to criticism from supervisors; (6) getting along with coworkers without distracting them or exhibiting behavioral extremes; and (7) responding appropriately to changes in the work setting. In his decision, the ALJ “concur[red]” with the assessment of Varga’s mental state made by the state agency, and this assessment is presumably what led the ALJ to find that Varga had moderate difficulties with regard to “concentration, persistence, or pace” at steps two and three of his sequential analysis. However, the ALJ did not address all of these difficulties in his hypothetical question to the vocational expert. Because a hypothetical posed to a VE must incorporate all of the claimant’s limitations supported by the medical record—including moderate limitation in concentration, persistence, and pace—we find that the ALJ committed reversible error. See Yurt, 758 F.3d at 857 (failure of ALJ to include in hypothetical moderate difficulties in concentration, persistence, and pace attributed to applicant in Section I the MRFCA form was reversible error).”

Reversed and Remanded

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Criminal

7^th Circuit Court of Appeals

Officials: POSNER and WILLIAMS, Circuit Judges, and WOOD, District Judge

Search & Seizure

No. 14-2982 USA v. Dontray A. Smith

Police officers’ blocking of appellants path in an alleyway constituted a seizure.

“The government would have us believe that a “reasonable person” would view this encounter in a manner at odds with how it would be classified by the Milwaukee Police Department’s Standard Operating Procedures, how the officers viewed the encounter, and obviously how Smith him‐ self perceived it. We simply cannot ignore the coercive nature of this encounter. Of course, the subjective beliefs and intent of the officers are relevant to the assessment of the Fourth Amendment implications of police conduct only to the extent they have been conveyed to the person confront‐ ed. Mendenhall, 446 U.S. at 554, n. 6. But in this case, we find that Officers Flannery and Michalski intended to and in fact did communicate to Smith precisely what was going on— that he was a suspect in their investigation and was not free to leave before submitting to their questioning. “

Vacated and Remanded

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Criminal

7^th Circuit Court of Appeals

Officials: POSNER and KANNE, Circuit Judges, and DARRAH, District Judge.

Pleas & Sentencing – Life Sentence

No. 13-3469 USA v. Sytles Taylor

No. 13-2814 USA v. Keon Thomas

Harsh upbringing and external forces outside of appellants’ control during youth warrants resentencing.

“The facts regarding Taylor’s personal history, if true (they have not yet been submitted to full evidentiary procedure), are possible grounds for mitigation—for reducing his sentence from life to a term of years. For they suggest that external forces beyond his ability to control created cognitive and psychological impairments that greatly diminished his ability to resist engaging in serious criminal activity. When substantial grounds for mitigation are presented, the sentencing judge must explain his reasons for rejecting them, see, e.g., United States v. Morris, 775 F.3d 882, 886–88 (7th Cir. 2015), and this the judge failed to do. The government agrees that Taylor’s sentence must therefore be vacated and the case remanded for resentencing. Although Thomas’s up‐ bringing was not as awful as Taylor’s, it was similar enough to persuade the government that he too is entitled to be re‐ sentenced. In all other respects (including rulings that we have not discussed because the defendants’ challenges to them are plainly devoid of merit) the judgments are affirmed.”

Affirmed in part, reversed in part, and remanded

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Criminal

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and BAUER and RIPPLE, Circuit Judges

Jury Instructions – Plain Error

No. 14-2449 USA Michael McClellan

Where plain error not found for providing jury instruction with unsettled elements.

Nothing in our analysis in Li establishes that a specific in‐ tent instruction is required for violations of § 1324(a)(1)(A)(iii), much less that the failure to give such an instruction was plain error. Indeed, we noted on more than one occasion in Li that there was no law from this circuit holding that § 1324 incorporates a specific intent requirement and, relatedly, no circuit law requiring a specific intent instruction. We also observed that counsel’s general intent instruction was consistent with the approach of several other circuits. Li, 648 F.3d at 528–29 (citing, among other authorities, United States v. Khanani, 502 F.3d 1281, 1287, 1289 (11th Cir. 2007), in which the court concluded that a § 1324(a)(1)(A)(iii) instruction, similar in all material respects to the one given here, “correctly addressed all elements of the offenses”). On plain error review, we cannot grant relief “unless the error is clear under current law.” Olano, 507 U.S. at 734. Because the “operative legal question”—whether § 1324(a)(1)(A)(iii) contains a specific intent requirement—was “unsettled,” the district court did not commit plain error. United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009) (per curiam) (internal quotation marks omitted).

Affirmed

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Criminal

7^th Circuit Court of Appeals

Officials: EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

Ambiguous Jury Instruction

No. 11-3853 USA v. Rod Blagojevich

Where dissemination of ambiguous jury instruction that treated multiple actions, considered legally different, as one was grounds for vacated judgment.

“But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President-elect for a private-sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.”

Vacated in part, affirmed in part and remanded

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Criminal

7^th Circuit Court of Appeals

Officials: FLAUM, RIPPLE, and WILLIAMS, Circuit Judges

False Testimony – Ineffective Assistance of Counsel

No. 14-2779 USA v. Joseph B. Miller

Unreliability of identification does not preempt witness from making an identification. Counsel has ample opportunity to cross-examine.

“It is true that Hoffman’s in-court identification also lacks certain indicia of reliability. While Hoffman—who was standing at the teller counter during the bank robbery—had an unobstructed view of the robber at close range, the record suggests that she did not realize a robbery was being committed and that she likely paid little attention to the robber’s appearance. Further, although Hoffman appears to have displayed some certainty with respect to her in-court identification, at the time she viewed the photo array, she expressed doubt as to her ability to identify the robber. Yet we have acknowledged that in-court identifications are often “much less reliable than fair line-ups and photo arrays” but have nevertheless concluded that “[t]his does not necessarily mean … that a witness should not be allowed to take the stand and make such an identification.” Johnson, 92 F.3d at 597. Suppression of an identification is an extreme and often inappropriate remedy; rather, where defense counsel has “more than adequate opportunity to cross examine [the witness] and to make clear to the jury that [the witness] was unable to pick [the defendant] out of the photo array,” due process will generally be deemed satisfied. Id. Here, Tavitas thoroughly cross-examined Hoffman in an attempt to attack the reliability of her identification. He pointed out that she had only a brief opportunity to observe the robber, and further noted that she had failed to pick Miller out of a photo array shortly after the robbery. This exchange provided the jury with sufficient information with which to evaluate the reliability of Hoffman’s identification. We therefore conclude that Tavitas’s decision not to object to that identification did not fall below an objective standard of reasonable attorney performance.”

Affirmed

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Criminal

7^th Circuit Court of Appeals

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Pleas & Sentencing

No. 15-1326; No. 15-1474

USA v. Emanuel Newman

U.S.C. §3582(c)(2) permits a court to reduce a sentence, not increase it.

“The court did not explain why an order authorized by §3582(c)(2) isn’t a sentencing for the purpose of Rule 35(a). We know from Dillon v. United States, 560 U.S. 817 (2010), that it isn’t a sentencing for the purpose of the Sixth Amendment, which implies that it is not one for the purpose of Fed. R. Crim. P. 32 either. Thus the judge need not order the defendant produced in court and need not take new evidence. See also Fed. R. Crim. P. 43(a)(3), (b)(4). But Dillon does not say or suggest that a judge who has reduced a sentence under §3582(c)(2) becomes empowered to increase it months or years later, without regard to the time limits ordinarily applicable to revisions.”

Vacated and Remanded

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Criminal

7^th Circuit Court of Appeals

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges.

Jury Duty

No. 14-3730 USA v. Karenza Pickering

Judge improperly placed federal criminal conviction on appellant record and improperly convicted appellant of willful disobedience of a summons where no evidence of willfulness was presented.

“Although the judge said that he had found her guilty beyond a reasonable doubt, actually he’d shifted the burden of proof to her—she had to convince him that she had not willfully disobeyed the summons. She was the only witness. She testified in detail and without contradiction or internal inconsistency that she had “had a lot of things that were happening all at one time”—that she “was trying to help my sick mother and out on family medical leave. I was pregnant. I experienced complications with my first child,” and so she had forgotten the summons. The judge, consistent with his shifting the burden of proof to her, said (to whom? Oddly not to her): “I’m not persuaded by her statement that she was busy and forgot” (emphasis added). Yet obviously she was very busy and harassed during the critical period, and he could not lawfully place the burden of proving innocence on her in a criminal proceeding.”

Reversed and Remanded – Acquittal

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Criminal

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, FLAUM, Circuit Judge, and KENNELLY, District Judge.

Personal Jurisdiction

No. 14-3105 Sinovel Wind Group Co., Ltd v. Barbara Crabb

No. 14-3013 USA v. Sinovel Wind Group Co., Ltd

Appellant fails to meet criteria to have collateral order appealed.

“We raised this problem at oral argument, where Sinovel conceded that the rules applying to foreign sovereigns are not (at least technically) applicable to it. It argued instead that China’s stake in Sinovel warrants at least “a thumb on the scale” in favor of appellate jurisdiction over the district court’s denial of the motion to quash. But Sinovel has pointed to no rule to that effect. It cites Samantar v. Yousuf, 560 U.S. 305 (2010), in support of its argument that the FSIA’s language does not necessarily exclude entities it does not mention from its protections. Samantar, however, dealt with the question whether a foreign official could invoke the protections of the FSIA and thereby obtain immunity from suit. No, the Court replied: the term “foreign state” is defined in the statute, and officials are not mentioned. Id. at 315–16. It reached that result despite the fact that it recognized some residual federal common law of foreign sovereign immunity. Id. at 324. If Samantar helps anyone, it helps the government in this case, not Sinovel. We see no reason why a foreign corporation in which a foreign government has a minority stake is entitled to a “thumb on the scale” for jurisdictional purposes”

Dismissed and Denied

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Criminal

7^th Circuit Court of Appeals

Officials: EASTERBROOK, MANION, and SYKES, Circuit Judges.

Motion to Suppress – Consent to Search – Residual Clause

No. 13-1441 USA v. Juan Gonzalez Ruiz

Appellants failure to explicitly deny consent to search, and failure to object once the search began equated to consent. Additionally, in light of Johnson v. United States, imposing an increased sentence under the residual clause violates due process.

“We don’t see any error in the district court’s findings on consent. Gonzalez-Ruiz’s argument for suppression rested largely on Vasquez’s testimony—more specifically, her claim that when Gonzalez-Ruiz said “I guess,” he was really responding to her question about picking him up and not to Laha’s request for permission to search. But Vasquez wasn’t present at the scene, and the officers who were there testified that his verbal response “I guess” came in reply to Laha’s request for consent to search and was accompanied by a wave of the hand and a nod. The district court accepted the officers’ testimony as credible, and that determination gets substantial deference. United States v. Williams, 209 F.3d 940, 943 (7th Cir. 2000) (explaining that the reviewing court’s deference to credibility findings is “near absolute”). The district court also relied on the video and audio recordings, which support the officers’ testimony. Gonzalez-Ruiz does not question the contents of the recordings or the court’s interpretation of them.”

Affirmed.

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Civil

WI Court of Appeals – District I

Officials: Curley, P.J., Kessler and Brennan, JJ.

Home Rule – Conflict of Laws

Where state law does not trump local ordinance in light of the “Home rule” because the statute at issue does not involve a matter of statewide concern.

2014AP400 Milwaukee Police Association v. City of Milwaukee

“There is no dispute that, while the statute does not overtly single out any particular municipality, it will have an outsize impact on the City of Milwaukee. As detailed more fully in the background portion of this opinion, the Legislative Fiscal Bureau paper makes very clear that the City of Milwaukee would be very severely impacted by legislation prohibiting residency requirements. On the other hand, the impact of a prohibition on residency requirements on the numerous other local governmental bodies in this state is not discussed in any meaningful way. Indeed, the notion that a statute purporting to gut the tax bases and compromise neighborhood integrity of all municipalities would pass both houses of the legislature defies logic. Regardless of what the statute’s language says, the facts in the record make clear that only one city— Milwaukee—will be deeply and broadly affected. We therefore can reach no other conclusion than that WIS. STAT. § 66.0502 does not uniformly affect every city or village in this state.”

Decision

Affirmed in Part. Reversed in Part. – Recommended for Publication

Civil

WI Court of Appeals – District I

Officials: Curley, P.J., Kessler and Brennan, JJ.

Medical Malpractice – Motion for New Trial

2014AP1358 L.D.M. v. Injured Patients and Families Compensation Fund

Appellant argues that the trial court erroneously: (1) limited their cross examination of Worthington; (2) permitted a defense expert, Dr. Theonea Boyd, to testify about the condition of K.D.-M.’s placenta without causally connecting the condition to L.D.-M.’s disorders; (3) permitted a defense expert, Dr. Jay Goldsmith, to offer a new opinion regarding placental pathology; (4) prohibited certain testimony from the plaintiffs’ expert, Dr. Stephen Glass; (5) instructed the jury about alternative treatment methods and provided an improper special verdict; and (6) refused to provide the jury with evidence requested during deliberations. In the alternative, the plaintiffs allege that there is insufficient evidence to support the jury’s verdict. The plaintiffs also argue that a new trial is warranted in the interest of justice. We reject the plaintiffs’ claims of error and conclude that sufficient evidence supports the jury’s verdict. We affirm.

Decision

Affirmed.

Civil

WI Court of Appeals – District III

Officials: Hoover, P.J., Stark and Hruz, JJ.

Garnishment

2014AP1406 Leland G. Christenson, II v. Nikki Lee

Appellant Nikki Lee appeals an order in this nonearnings garnishment action requiring the garnishee to pay Leland Christenson, a creditor of Lee’s, the amount payable under a money judgment Lee obtained in a separate action. Lee advances several arguments in this appeal, all of which we reject, except for Lee’s argument that the order improperly requires the garnishee to make payments to Christenson’s attorney, rather than to Christenson. Pursuant to our authority under WIS. STAT. § 808.09, we modify the order to substitute Christenson, rather than his attorney, as the proper recipient of any garnishment payments made under the order, and we affirm the order as modified.

Decision

Affirmed. Per Curiam.

Civil

WI Court of Appeals – District III

Officials: Hoover, P.J., Hruz and Neubauer, JJ.

Insurance Policy – Joint & Several Liability

2014AP2323 Julie L. Pettis v. Progressive Universal Insurance Company

Julie Pettis and Michael Pettis, Sr., appeal an order directing the Eau Claire County Clerk of Courts to satisfy a money judgment with respect to American Family Mutual Insurance Company. . . . Because American Family has paid the Pettises an amount equal to the applicable policy limit plus an additional amount for interest and costs, satisfaction of the judgment as to American Family was warranted. We therefore affirm.

Decision

Affirmed. Per Curiam.

Civil

WI Court of Appeals – District II

Officials: Hoover, P.J., Stark and Hruz, JJ.

Homeowner’s Insurance

2014AP1493 Amy Szerbowski v. George Trinka

Amy Szerbowski appeals a judgment concerning an insurance coverage dispute arising out of the shooting death of her husband. We conclude the circuit court properly determined the homeowner’s insurance policy at issue provided no coverage and therefore affirm.

Decision

Affirmed. Per Curiam.

Civil

WI Court of Appeals – District III

Officials: STARK, J

Unlawful Arrest

2014AP2955 Oconto County v. Joseph R. Arndt

Joseph Arndt appeals an order finding his refusal to submit to chemical testing was unreasonable. Arndt argues the circuit court erred because he was unlawfully arrested on the curtilage of his property. We disagree, and affirm.

Decision

Affirmed.

Civil

WI Court of Appeals – District II

Officials: Reilly, Gundrum and Stark, JJ.

Insurance Policy Coverage

14AP2280 Carmen Smith v. Deandre T. Patton

Badger Mutual Insurance Company appeals from a nonfinal order denying its motion for summary judgment. The dispositive issue is whether its automobile liability policy provides coverage for an individual who injured someone with a car during a premeditated robbery. Because we conclude that it does not, we reverse.

Decision

Reversed. Per Curiam.

Civil

WI Court of Appeals – District II

Officials: GUNDRUM, J

Family Law – Termination of Parental Rights

15AP151 Kenosha County DHS v. A.C.

A.C. appeals the circuit court order terminating his parental rights to J.A.M. A.C. argues that the termination order should be vacated because his trial counsel provided him ineffective assistance with regard to the petition to terminate his parental rights to J.A.M. Specifically, he asserts counsel was ineffective in (1) failing to inform him “that his incarceration standing alone was not a sufficient basis to terminate his parental rights” and (2) failing to “file a motion to dismiss the termination petition on the basis that the grounds were unconstitutional as applied to [A.C.] because, based on his incarceration, the conditions for return were impossible to meet.” We disagree with A.C. and affirm.

Decision

Affirmed.

Civil

WI Court of Appeals – District IV

Officials: HIGGINBOTHAM, J

Family Law – Termination of Parental Rights

2014AP2570 & 2014AP2571 Derrick P. V. Anita P

Anita P. appeals circuit court orders terminating her parental rights to her children, Amber P. and Ashley P. The court terminated Anita’s parental rights to both children pursuant to WIS. STAT. § 48.415(4), which provides that parental rights may be terminated when there is a continual denial of periods of physical placement or visitation of a parent’s child. On appeal, Anita does not challenge the merits of the court’s orders terminating her parental rights or claim error on the part of the court or counsel. Instead, she brings both a facial and an as-applied constitutional challenge to § 48.415(4)(a). Specifically, Anita argues, for the first time on appeal, that: (1) § 48.415(4)(a) violates the constitutional guarantee of equal protection because it requires a notice element for certain underlying court orders that deny physical placement but not for others; and (2) § 48.415(4)(a) is unconstitutional, as-applied, because her parental rights were removed without adequate protections and without any court finding that she is unfit, which results in a due process violation. We affirm.

Decision

Affirmed

WI Court of Appeals – Criminal

Criminal

WI Court of Appeals – District I

Officials: Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge.

Double Jeopardy – General Appeal

13AP2782-CR

State of Wisconsin v. Dewitt Antonio Faulkner

Appellant Dewitt Antonio Faulkner appeals judgment of circuit out convicting him of multiple counts, arguing that (1) Faulkner’s second trial was barred by double jeopardy and due process; (2) Faulkner was improperly convicted as a party to a crime; (3) the prosecutor’s closing argument and the jury instructions misled the jury; (4) the circuit court should have suppressed an illegally seized pistol; (5) Faulkner’s co-actors should not have been allowed to testify against him because they received concessions from the State; (6) it was error to charge Faulkner with the firearm enhancer; and (7) Faulkner was denied a fair trial based on an aggregation of these issues. We affirm.

Decision

Affirmed. Per Curiam

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Criminal

WI Court of Appeals – District I

Officials: Curley, P.J., Brennan, J., and Thomas Cane, Reserve Judge.

Pleas & Sentencing – Plea Withdrawal

14AP1694 State of Wisconsin v. Matthew Charles Stechauner

Matthew Charles Stechauner, pro se, appeals an order denying his motion for postconviction relief. Stechauner argues that he should be allowed to withdraw his guilty plea based on newly discovered evidence. He also argues that he received ineffective assistance of counsel. We affirm.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District II

Officials: Hoover, P.J., Stark and Hruz, JJ.

Harmless Error

14AP1928-CR State of Wisconsin v. Timothy Dean

Timothy Dean appeals a judgment of conviction for possession of cocaine with intent to deliver, contrary to WIS. STAT§ 961.41(1m)(cm)3.1 Dean was also convicted of two counts of bail jumping, and he argues the trial court erroneously informed the jury of the charges for which he was on bail. We conclude that Dean forfeited an expanded argument first presented on appeal, and that any error was harmless. Accordingly, we affirm.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District I

Officials: Curley, P.J., Brennan and Bradley, JJ.

Commitments – Ineffective Assistance of Counsel

14AP1944 State of Wisconsin v. Jon F. Winant

Appellant Jon F. Winant appeals the trial court’s judgment and commitment order, entered after a bench trial, where the trial court found that Winant was a sexually violent person pursuant to WIS. STAT. § 980.01 (2011-12). Winant also appeals the postcommitment order summarily denying his claim of ineffective assistance of counsel. Winant claims his trial counsel gave him ineffective assistance because trial counsel failed to: (1) object when the State asked the trial court to admit as exhibits the Notice of Violation and Receipt, the Violation Investigation Report, and the Revocation Summary; and (2) object on hearsay grounds when a Department of Corrections agent testified about a note from a social worker reporting that Winant admitted to propositioning a fourteen year-old girl. He asks us to reverse and remand for a Machner hearing. Because the record conclusively demonstrates that Winant’s trial counsel was not ineffective, we affirm.

Decision

Affirmed.

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Criminal

WI Court of Appeals – District I

Officials: Kessler, Brennan and Bradley, JJ.

14AP2079-CR State of Wisconsin v. Eric Paul Dillard

Appellant Eric Paul Dillard appeals from a judgment of conviction, entered upon a jury’s verdict, on one count of possession of narcotic drugs as a second or subsequent offense. Dillard contends that the circuit court erred when it declined to admit certain testimony at trial. We conclude the circuit court properly exercised its discretion, so we affirm the judgment.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court Appeals – District III

Officials: Hoover, P.J., Stark and Hruz, JJ

Pleas & Sentencing – Judge Impartiality

14AP2245-CR State of Wisconsin v. Johnson Carter

Johnson Carter, pro se, appeals an amended judgment of conviction that commuted a part of his sentence pursuant to WIS. STAT. § 973.13,1 reducing the term of his extended supervision for one offense from three years to two years. Although Carter raises four issues on appeal, only two of the issues are properly before this court: (1) whether the circuit court judge should have recused himself; and (2) whether Carter is entitled to resentencing on all of the charges against him, rather than commutation of the excessive sentence for one count. We affirm the amended judgment.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court Appeals – District II

Officials: Neubauer, P.J., Reilly and Gundrum, JJ.

Pleas & Sentencing – Breach of Plea Agreement

2014AP480-CR State of Wisconsin v. Joseph L. Evans

Joseph Evans appeals from a judgment convicting him of being party to the crime of armed robbery on his no contest plea and from an order denying his postconviction motion seeking resentencing because at sentencing, the State breached the plea agreement and the circuit court relied upon inaccurate information. We conclude that the State did not breach the plea agreement and any inaccurate information relied upon by the circuit court at sentencing was harmless. We affirm.

Decision

Affirmed. Per Curiam

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Criminal

WI Court Appeals – District IV

Officials: Blanchard, P.J., Sherman and Kloppenburg, JJ.

Ineffective Assistance of Counsel

2012AP1425 State of Wisconsin v. Mark A. Humphrey

Mark A. Humphrey, pro se, appeals an order of the circuit court denying his postconviction motion filed pursuant to WIS. STAT. § 974.06 (2013-14), in which Humphrey asserted that his appellate counsel was ineffective for failing to argue on direct appeal that Humphrey’s trial attorneys were ineffective.1 For the reasons discussed below, we affirm.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – IV

Officials: Blanchard, P.J., Lundsten and Higginbotham, JJ.

Inadmissible Evidence – Motion to Suppress

2014AP658-CR State of Wisconsin v. David Winters, Jr.

The State appeals a pretrial order suppressing evidence seized from the pocket of a jacket taken from a van during the joint investigation of a traffic accident and an altercation at a bar. The State contends that the evidence was admissible either under the automobile exception to the warrant requirement or as a search for intoxicants incident to an OWI arrest. For the reasons discussed below, we agree that the evidence was admissible under the automobile exception to the warrant requirement. We therefore reverse the suppression order and remand for further proceedings, without addressing the State’s alternative search-for-intoxicants argument.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court Appeals – IV

Officials: Lundsten, Sherman and Kloppenburg, JJ.

Ineffective Assistance of Counsel – Motion for Mistrial

14AP1085-CR State of Wisconsin v. Christopher Anthony Dawson

Christopher Dawson was convicted following a jury trial of four counts related to a home invasion and burglary and one count of witness intimidation, and was acquitted of two additional counts of witness intimidation. He makes five arguments on appeal: (1) his trial counsel was ineffective for failing to object and move for a mistrial when Dawson’s half-sister referenced during her trial testimony that her brothers are “known for robberies”; (2) the circuit court erroneously denied Dawson’s motion to exclude certain evidence of Dawson’s gang affiliation, along with his “MAS” tattoo and witness testimony that “MAS” means “Murder All Snitches”; (3) the circuit court erroneously denied Dawson’s motion to sever the witness intimidation charges from the charges related to the home invasion and burglary; (4) the circuit court erroneously denied certain mistrial motions; and (5) the guilty verdict on the witness intimidation charge is not supported by sufficient evidence. We reject Dawson’s arguments and affirm.

Decision

Affirmed. Per Curiam.

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