Weekly Case Digests — Aug. 10-14, 2015

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7th Circuit Court of Appeals – CIVIL CASES

Civil

7^th Circuit Court of Appeals

Officials: RIPPLE, KANNE, and SYKES, Circuit Judges

Civil Procedure – Abuse of Process

No. 14-1940

Jeanne Pace v. Timmermann’s Ranch and Saddle

Where district court erred in dismissing appellant’s claim for abuse of process, among others,  where appellant was indeed arrested.

“Under Illinois law, “[t]he only elements necessary to plead a cause of action for abuse of process are: (1) the existence of an ulterior purpose or motive and (2) some act in the use of legal process not proper in the regular prosecution of the proceedings.” Kumar v. Bornstein, 820 N.E.2d 1167, 1173 (Ill. App. Ct. 2004) (emphasis in original). Although neither an indictment nor an arrest is a necessary element to bring an abuse of process claim under Illinois law, a plaintiff is required to plead some improper use of legal process. See id. To satisfy this requirement, a plaintiff must plead facts that “show that the process was used to accomplish some result that is beyond the purview of the process.” Id. In most circumstances, this requirement is met through an arrest or physical seizure of property. See id. (noting that “the relevant case law generally views an actual arrest or seizure of property as a sufficient fact to state a claim of abuse of process” (emphasis in original)).”

Affirmed in part, Reversed and Remanded in Part.

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Civil

7^th Circuit Court of Appeals

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

Marshals Process of Service 

No. 14-3746

Joseph Williams v. Robert Werlinger

Public records search not sufficient to meet duty requirement imposed by Marshals Service as as required by Rule 4(3)(c).

The district court should not have accepted the responses of the Marshals Service to the order to serve Werlinger. Not that the Service can be expected to do the impossible. If Werlinger changed his name to Siddhārtha Gautama and is now a monk of a Buddhist temple in Tibet, the Marshals Service probably couldn’t find him by efforts proportionate to the importance of finding him; and then the plaintiff would be out of luck. But as should be evident from our opinion in Sellers v. United States, supra, 902 F.2d at 602, the Service had to do more than it did to try to find the ex- warden. It is most unlikely that Werlinger has emigrated turned into a witch’s familiar, or otherwise vanished. Probably he still lives in Wisconsin and probably he receives a federal pension—and, if so, the Bureau of Prisons must have a record of it and of the address to which his pension bene- fits are sent. The Bureau or the prison or both must have Werlinger’s personnel records, which would indicate his home address when he was warden. If he has since moved, the real estate agent who handled the sale of his house may know where he moved to. In all likelihood his successor as warden, or members of his staff at the prison, know his ad- dress, whether postal or email. It’s shameful that in response to the district court’s second directive the Marshals Service gave up looking for Werlinger after just two days. The Mar- shals are experts at tracking down fugitives. It should be a good deal easier to track down a retired federal prison war- den than a master criminal on the lam. It was only three months before the search began that he’d retired. The district judge must apply more pressure to the Service to find him.”

Reversed and Remanded

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Civil

7^th Circuit Court of Appeals

Officials: FLAUM, KANNE, and SYKES, Circuit Judges

Cruel & Unusual Punishment

No. 14-3173

Joseph Conley v. Kimberly Birch

Where doctor failure order an x-ray for inmate with fractured hand exacerbated inmates injury.

“Our conclusion that Conley’s claim of deliberate indifference survives summary judgment does not necessarily indicate that Conley is likely to win at trial. There is evidence pointing in both directions, and while a jury might draw inferences favorable to Conley, the record also permits the opposite inferences. After all, Potts’s treatment notes convey some uncertainty as to Conley’s diagnosis, as Potts described Conley’s injury as a “possible/probable fracture” and a “? Fracture.” Also, though his hand was severely swollen, Con- ley was experiencing only mild pain (a “2–3” on a 1–10 scale) at the time of his visit with Potts. Because Potts customarily shared his full assessment during a telephone referral, we can assume that these observations were communicated to Dr. Birch, along with a report of Conley’s more serious symptoms. Further, because Dr. Birch stated in her deposition that she generally deferred to the professional judgment of the reporting nurse in determining whether to order an x- ray, a jury might conclude that Potts did not feel that an x- ray was necessary. Finally, considering that Dr. Birch would have been able to order an x-ray over the phone in a matter of minutes, doing so likely would not have interfered with her holiday plans; as a result, Conley’s proffered motive for Dr. Birch’s decision not to order an x-ray—that is, so that she would not be forced to interrupt her Christmas vacation— appears dubious.”

Reversed and Remanded

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Civil

7^th Circuit Court of Appeals

Officials: OSNER, EASTERBROOK, and MANION, Circuit Judges

Telephone Consumer Protection Act

No. 14-2775; 14-2773

Arnold Chapman v. First Index, Incorporated

Defendant full compensatory offer does not render litigation moot when offer is pulled. Damasco v. Clearwire Corp., 662 F.3d 891, 895 (7^th Cir. 2011); Thorogood v. Sears, Roebuck & Co., 595 F.3d 750, 752 (7th Cir. 2010); Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991) overruled on issue of mootness.

“Rule 68(d) provides the consequence of a decision not to accept: “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Failure to accept a fully compensatory offer also may suggest that the plaintiff is a bad representative of the class, for he has nothing to gain (implying poor incentives to monitor counsel) and may have given up something the class values (here, an injunction that would have stopped any further improper faxing). But all of these upshots differ from outright dismissal on the basis of mootness. We overrule Damasco, Thorogood, Rand, and similar decisions to the extent they hold that a defendant’s offer of full compensation moots the litigation or otherwise ends the Article III case or controversy. As Circuit Rule 40(e) requires, this opinion has been circulated to all judges in active service. None favored a hearing en banc.”

Affirmed in part. Vacated in part.

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, RIPPLE, and KANNE, Circuit Judges

Insurance Coverage – Subrogation

No. 14-2694

National American Insurance v. Artisan and Truckers Casualty

Appellant failure to defend insured estopped appellant from raising policy defenses to coverage during subrogation.

“Here, Artisan gambled and lost. It did not defend Michael and Viktor Barengolts under a reservation of rights. And it did not seek a declaratory judgment in the underlying action. Instead, it refused—on at least seven occasions—to defend. Because “[a]n insurer that believes an insured is not covered under a policy cannot simply refuse to defend the insured[,]” Mt. Hawley Ins. Co. v. Certain Underwriters at Lloyd’s, 19 N.E.3d 106, 111 (Ill. App. Ct. 2014) (quoting A-1 Roofing Co. v. Navigators Ins. Co., 958 N.E.2d 695, 700 (Ill. App. Ct. 2011)), the district court did not err in estopping Artisan from raising policy-coverage defenses. Accordingly, we hold that Artisan is estopped from asserting any coverage defenses under its policy with Michael and Viktor Barengolts. And because it cannot assert such defenses, it must reimburse NAICO the amount authorized by the settlement agreement, including costs for NAICO’s efforts in defending and indemnifying Michael and Viktor Barengolts in the Bernals’ lawsuit.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

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

Duty to Warn – Product Liability

No. 14-2481

Trad Thornton v. Jeppesen Sanderson, Inc.

No. 14-1707

Trad Thornton v. M7 Aerospace, LP

M7 Aerospace

Appellant inclusion on customer list and general knowledge of entity as an airline does not establish a duty to warn.

“The district court found that there was an insufficient nexus between M7 and Transair to impose an independent duty to warn on M7, and we agree. None of the four Gonzalez factors are met, and the plaintiffs have not presented evidence of any relationship between M7 and Transair with respect to the Aircraft. M7 did not assume any of Fairchild’s service contracts; consequently, the Aircraft was not covered by any service contract. M7 never serviced the Aircraft, and there is no evidence that M7 knew Transair was the current owner and operator of the Aircraft. The plaintiffs argue that because Transair was included on M7’s customer list, M7 knew the identity and location of the operator of the Air- craft. While this evidence may establish that M7 knew of the existence of Transair as an airline in general, the plaintiffs have presented no evidence from which a reasonable jury could conclude that M7 knew Transair was the operator of this Aircraft. The plaintiffs do not even allege that M7 knew Transair was the operator of the Aircraft.”

Jeppesen

Lack of clarity as to whether pilots utilized Jeppesen charts during descent yields lack of causation.

“There is no evidence from which a reasonable jury could infer that Jeppesen’s charts probably contributed to the crash. No one survived the crash. There is no cockpit voice recording. We do not know for sure whether or not the pi- lots were using the Jeppesen charts when they descended. Even if they were using the charts, there is no evidence from which a jury could infer that the plaintiffs’ version of the accident actually occurred. The plaintiffs do not argue that the Jeppesen charts were inaccurate or did not comply with the ASA’s requirements. They mostly rely on the factual findings of the ATSB report which described various ways that the charts could have been improved. But they have nothing to establish that any flaws in the charts actually caused the pilots to lose situational awareness or otherwise decide to descend below the minimum safe altitude. The plaintiffs would like for us to allow this case to reach a jury based on the argument that because they can establish that the charts were flawed, we can infer that the charts probably contributed to the crash. But this speculation is impermissible. See Tragarz, 980 F.2d at 418; Rahic v. Satellite Air-Land Motor Serv., Inc., 24 N.E.3d 315, 322 (Ill. App. Ct. 2014) (“Liability against a defendant cannot be predicated on speculation, surmise, or conjecture.”).”

Both Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: RIPPLE, KANNE, and TINDER, Circuit Judges.

Civil Rights Violations  – FELA

No.2451

Ronald Sweatt v. Union Pacific Railroad Co

Appellant time barred for bringing FELA claim, fails to set forth evidence age or race based discrimination.

“We begin our analysis with Sweatt’s race discrimination claim under § 1981. Union Pacific offered nineteen people jobs as Security Officers in the past five years. Sweatt uses these individuals as his comparators. Discovery revealed their racial makeup: fifteen were Caucasian, three were His- panic, and one was African-American. Nine of these individuals hailed from the Northern Region where Sweatt sought his Chicago position. Of those individuals, one was outside Sweatt’s protected class and was untruthful on the topic of traffic citations in his paper application. He was hired. But importantly, that candidate immediately rectified the discrepancy in his paper application during his interview. Sweatt, by contrast, did not. During Sweatt’s interview, he denied being arrested, and he corrected himself only when confronted by Agent Weller with the specific details of the arrest. That makes Sweatt and this particular comparator qualitatively different.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, RIPPLE, and KANNE, Circuit Judges

Declaratory Judgment – Insurance Coverage

No. 14-2009

Westfield Insurance Company v. Scot Vandenberg

Appellants injuries not independent of negligent maintenance of yacht and are not included for coverage under appellant policy’s “watercraft exclusion” provision.

“With the guidance of the Appellate Court of Illinois, we reach the same conclusion. Mr. Vandenberg fell from the top deck of the yacht after the bench on which he was sitting tipped over. Because the top deck of the yacht did not have a railing, he fell a substantial distance, resulting in his injuries and paralysis. In his state court complaint, Mr. Vandenberg recognized that his injury would not have occurred if Rose Paving had provided a railing or prevented him from accessing the top deck of the yacht. Thus, the accident and Mr. Vandenberg’s resulting injuries were not “wholly independent of” the negligent operation, maintenance, or use of the yacht. Northbrook Prop. & Cas. Co., 741 N.E.2d at 254 (internal quotation marks omitted). Mr. Vandenberg’s injuries therefore come under the policies’ watercraft exclusion, and the policies do not provide coverage.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: BAUER, FLAUM, and TINDER, Circuit Judges.

Unlawful Detention

No. 14-1490 D.Z. v. Mark Buell

Where officer entitled to qualified immunity for detention of minor

“The district court did not address whether Buell arrested D.Z. or not; rather, it held that, even if an arrest took place, Buell was entitled to qualified immunity because he had arguable probable cause to effect an arrest. We agree. Buell’s pursuit of D.Z. occurred immediately after he mistakenly, but reasonably, concluded that D.Z. had evaded Golubski. He then observed D.Z. turn into the driveway of a home, get off of his bike and head to the fence, which led him to conclude that D.Z. was “cutting through the yards.” Finally, he observed D.Z. place his hands on the fence, which led him to conclude that D.Z. was going to scale it.2 Under these facts, Buell had arguable probable cause to effect an arrest. Although D.Z. was not actually trying to run from the police, Buell’s mistaken conclusion that he was does not preclude this court from finding that Buell is entitled to qualified immunity. See Edwards v. Cabrera, 58 F.3d 290, 293 (7th Cir. 1995) (“Even if probable cause is lacking with respect to [an] arrest, despite the officers’ subjective belief that they had probable cause, they are entitled to immunity as long as their belief was objectively reason- able.”). Since we find that Buell reasonably believed, based on the behavior he observed, that D.Z. was trying to evade the police, Buell is entitled to qualified immunity.”

Affirmed

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Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judge

Writ of Habeas Corpus

No. 13-3312

Renardo Carter v. Timothy Douma

Even though appellant attorney failed to object to use of informant hearsay identification, overwhelming evidence would still likely lead to conviction and was not prejudicial.

“We need not resolve whether the failure to object here to the arguably hearsay identification was deficient performance, however. Even if Carter’s counsel might have been deficient in failing to object to Officer Webster’s testimony about the informant’s identification and its use during closing argument, Carter cannot show that the state court unreasonably determined that the problematic testimony did not prejudice him. See Taylor v. Bradley, 448 F.3d 942, 948–49 (7th Cir. 2006) (declining to resolve whether deficient performance when clear that no prejudice). For a petitioner to have been prejudiced by his counsel’s deficient performance, he must establish a reasonable probability that the result of the proceeding would have been different had counsel objected to the inadmissible testimony. See Richter, 562 U.S. at 104. A reasonable probability is one that undermines confidence in the outcome of the trial. Strickland, 466 U.S. at 694. The likelihood of a different out- come “must be substantial, not just conceivable.” Richter, 562 U.S. at 112. A guilty verdict that is “overwhelmingly sup- ported by the record is less likely to have been affected by errors than one that is only weakly supported by the rec- ord.” Eckstein v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006), quoting Hough v. Anderson, 272 F.3d 878, 891 (7th Cir. 2001). A state court’s application of the prejudice prong of Strick- land is reviewed under the deferential standard of 28 U.S.C. § 2254(d).”

Affirmed

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Civil

7^th Circuit Court of Appeals

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

Petition for Review – Clean Air Act

No. 14-3214

State of Indiana v. Environmental Protection Agency

EPA approval of State Implementation Plan not arbitrary and capricious.

“Relatedly, EPA claims that it rejected Indiana’s modeling of the Zion violation on scientific grounds. But EPA has not pointed to anything that is scientifically wrong with that analysis. Rather, the analysis was rejected because Indiana failed to take into account the effects of Illinois’s substitute emissions reductions, thereby rendering Indiana’s analysis irrelevant to the Section 110(l) inquiry that EPA has—as a matter of policy—deemed appropriate. With minor exceptions that are noted in EPA’s briefs (but not in its response to Indiana’s comment in the Final Rule), EPA does not challenge the science behind Indiana’s conclusion that, absent the change to Illinois’s I/M program, the Zion violation would not have occurred. So, EPA’s rejection of Indiana’s conclusions for non-scientific reasons does not merit special deference.9 Even without giving added deference to these determinations, however, we hold that EPA did not act arbitrarily and capriciously by approving Illinois’s SIP revision.”

Petition for Review Denied

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Civil

7^th Circuit Court of Appeals

Officials: KANNE and ROVNER, Circuit Judges, and SPRINGMANN, District Judge.

Title VII – Declaratory Judgment

No. 14-2843

Chicago Teachers Union, Local No.1 v. Board of Education of the City of Chicago

District court erred in stating the Court was unable to resolve whether the Defendant-Respondent’s turnaround policy was discriminatory and by failing to comprehend the relief being sought by appellants.

“This is a good time to issue the reminder that “Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.” Id., 133 S. Ct. 1184 (2013). “[T]he office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the ‘method’ best suited to adjudication of the controversy ‘fairly and efficiently.’” Id. at 1191. Consequently, we can take no position as to whether the plaintiffs will be able to demonstrate that the selection process was indeed discriminatory either in treatment or impact. The only answer we provide today is that it will certainly be efficient and fair to answer the question once for all plaintiffs rather than in piecemeal litigation.”

Reversed and Remanded

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Civil

7^th Circuit Court of Appeals

Officials: EASTERBROOK, MANION, and SYKES, Circuit Judges

Municipal Code Validity – Panhandling

No. 13-3581

Don Norton and Karen Otterson v. City of Springfield, Illinois

Municipal ordinance prohibiting panhandling in downtown historic district is not a form of content discrimination. Applies analysis under Reed V. Gilbert, 135 S. ct. 2218 (2015).

“Reed understands content discrimination differently. It wrote that “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” 135 S. Ct. at 2227 (emphasis added). Springfield’s ordinance regulates “because of the topic discussed”. The Town of Gilbert, Arizona, justified its sign ordinance in part by contending, as Springfield also does, that the ordinance is neutral with respect to ideas and viewpoints. The majority in Reed found that insufficient: “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” 135 S. Ct. at 2228. It added: “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.” Id. at 2230.”

Reversed and Remanded

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7^th Circuit Court of Appeals – CRIMINAL CASES

Criminal

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges.

Pleas & Sentencing – Collateral Relief

15-2427

Benjamin Price v. United States of America

Where holding of Johnson v. United States, 135 S. Ct. 2551 (2015) applies retroactively to cases involving collateral review.

“When the new rule is substantive, it is easy (as Justice O’Connor pointed out in Tyler) to demonstrate the required declaration from the Supreme Court confirming that the rule is retroactive: “When the Court holds as a new rule in a sub- sequent case that a particular species of primary, private individual conduct is beyond the power of the criminal law- making authority to proscribe, it necessarily follows that this Court has ‘made’ that new rule retroactive.” Tyler, 533 U.S. at 669; see also Summerlin, 542 U.S. at 351–52 (“New substantive rules generally apply retroactively … because they ‘necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal’ or faces a punishment that the law cannot impose upon him.”) (quoting Bousley v. United States, 523 U.S. 614, 620 (1998)). This is entirely consistent with Teague, which also recognized that new substantive rules are categorically retroactive. (The matter is not so “straightforward with respect to the second Teague exception … for ‘watershed rules of criminal procedure,’” Tyler, 533 U.S. at 669–70 (O’Connor, J., concurring) (quoting Teague, 489 U.S. at 311), but the case before us does not present any such proposed rule.)”

Affirmed.

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Criminal

7^th Circuit Court of Appeals

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges

Pleas & Sentencing – Acceptance of Responsibility

15-1193

United States of America v. Frank Pons

Where acceptance of responsibility not enough to warrant reduced sentence.

“Pons insists that his actions are analogous to the defend- ant in United States v. Lallemand, 989 F.2d 936 (7th Cir. 1993), abrogated on other grounds by United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012). There the defendant had instructed an accomplice to destroy evidence, id. at 937, but confessed immediately after his arrest and retracted his instruction to the accomplice (though it was too late to save the evidence), id. at 937–38. We held that a guidelines enhancement for obstruction and a reduction for acceptance of responsibility were not incompatible because the obstruction took place “at time t, and the acceptance of responsibility at time t + 1.” Id. at 938. In Pons’s view his situation is similar. He contends that he “voluntarily abandon[ed]” his obstruction at time t + 1 by self-surrendering in Brazil and promptly pleading guilty.”

Affirmed.

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Criminal

7^th Circuit Court of Appeals

Officials: BAUER, ROVNER, and HAMILTON, Circuit Judges

Motion to Suppress –

15-1059

United States of America v. Juwan A. Sturdivant

Where alleged promises made to appellant did not override his free will to confess.

“The district court did not make any factual findings on whether or not a promise was made. However, we do not believe remand is necessary because, even accepting Thomas’ version as true, Sandoval’s purported promise did not override Sturdivant’s free will and coerce him into confessing. After having received and waived his Miranda warnings for the second time in as many days, it was Sturdivant who broached the subject of seeing his mother. Sturdivant had no right to see his mother, but Sandoval allegedly made a gratuitous promise to take him by his mother’s house if he cooperated. Sandoval did not harp on the subject or hang it over Sturdivant’s head, she merely responded to Sturdivant’s request and that ended the matter. Plainly stated, Sandoval’s purported promise was not so powerful or overwhelming such that it prevented Sturdivant from exercising his rational intellect. Furthermore, Sandoval’s purported promise was not an empty promise; it did not falsely skew the calculus on which Sturdivant made his decision to cooperate. See Villalpando, 588 F.3d at 1128 (explaining that “[a]n empty prosecutorial promise could prevent a suspect from making a rational choice by distorting the alternatives among which the person under interrogation is being asked to choose” (citation omitted)). All in all, assuming that Sandoval promised to take Sturdivant to see his mother in exchange for his cooperation, this promise did not override Sturdivant’s rational intellect and free will so as to make his confessions involuntary.”

Affirmed.

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Criminal

7^th Circuit Court of Appeals

Officials: BAUER, FLAUM, and HAMILTON Circuit Judges

Franks Hearing

Nos. 14-2792; 14-2759; 14-2792

United States of America v. Shannon L. Gregory, Donald P. Cipra, and Eric M. Konrady

Where appellant fails to show that police officers intentionally or recklessly included false information in search warrant.

“To summarize, Scott Gregory provided accurate information to law enforcement about where Cipra and Shannon Gregory lived, what cars they drove, and that they owned firearms. Not only does this reflect sufficient corroboration of Scott Gregory’s information by law enforcement, it also reflects the firsthand nature of Scott Gregory’s descriptions. (It would be peculiar for Scott Gregory to have specific familiarity with Cipra’s and Shannon Gregory’s residences, vehicles (down to the make, model, and color), and whether they possessed firearms unless Scott Gregory had firsthand knowledge of these facts.) Also reflective of the firsthand quality of Scott Gregory’s information, he conveyed a very detailed understanding of how Defendants’ cannabis operation worked. He indicated that Cipra and Shannon Gregory had been running an indoor cannabis grow operation for over seven years, and that for the last two years, they based their operation out of the 1025 and 1027 residences. He also specifically estimated the number of cannabis plants that he personally observed inside the 1027 residence (480), provided photographs of those plants, and informed investigators of how much Cipra and Shannon Gregory would sell the cannabis for once harvested (a price that comported with investigators’ experience in the field). Although Scott Gregory did not provide photographs from the 1025 residence, he communicated specific knowledge of its role in the operation—i.e., that the 1025 residence housed cannabis plants in the vegetative and flowering stages, while the 1027 residence housed “cloned” cannabis plants.“

Affirmed.

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Criminal

7^th Circuit Court of Appeals

Officials: KANNE, ROVNER, Circuit Judges and DOW, District Judge.

Pleas & Sentencing

No. 14-3424

United States of America v. Sylvester Purham

Where appellant’s sentence conditions requiring community service and refrain from association with gang-affiliated individuals unclear and must be vacated.

“Here, the district court’s condition prohibits street-gang association rather than felony association, but that is a distinction without a difference. Although the district court required an intent element for wearing gang-related colors (i.e., Purham must intend to wear them as a representation of a gang in order to offend the condition), it offered no such requirement for the association component of the condition. We remain unsure, then, whether an accidental or chance meeting with a street-gang member would violate this condition. Clarification must be provided to determine what “association” means. Accordingly, under Thompson, this condition must also be vacated.”

Affirmed in part, Vacated in Part, Reversed and Remanded in Part.

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Criminal

7^th Circuit Court of Appeals

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Sentence Pronounced Orally

Nos. 14-1243; 14-1420

United States of America v. Jose Miguel Medina-Mora

Judge’s denial of appellants Rule 36 motion to correct judgment reversed where written judgment failed to accurately reflect the oral judgment originally pronounced.

“In considering defendant’s motion to correct the clerical error in the written judgment, the district court erred by considering its original intentions and concluding that its use of the word “concurrent” was an “error.” Under Federal Rule of Criminal Procedure 35(a), the district court lost any power it may have had to correct an “arithmetical, technical, or other clear error” in the sentence fourteen days after pronouncing sentence. At least after that time, the judge’s subjective intentions no longer mattered and could not justify the refusal to correct the clerical error. See Becker, 36 F.3d 708, 711 (7th Cir. 1994); United States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995); Villano, 816 F.2d at 1451.”

Reversed

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Criminal

7^th Circuit Court of Appeals

Officials: EASTERBROOK, WILLIAMS, and HAMILTON, Circuit Judges.

Probation Conditions – Sex Offenders

No. 14-3790

United States of America v. Jeffrey P. Taylor

Appellant conditions of probation held as overbroad and excessive with conditions preventing viewing of legal adult pornography, direct contact with minors, and inspection of internet capable devices.

“We have cautioned, however, against the imposition of overly broad search conditions as conditions of supervised release or probation. See United States v. Farmer, 755 F.3d 849 (7th Cir. 2014); Goodwin, 717 F.3d at 523. In Farmer, we recognized that 18 U.S.C. § 3583(d)(3) provides that a court may order as a condition for a person required to register under the Sex Offender Registration and Notification Act that the person submit his person, property, computer, and other items to search by a probation officer “with reasonable suspicion concerning a violation of supervised or unlawful conduct by the person … .” Taylor’s condition is even broader than that, as no reasonable suspicion is required. We reiterate the importance, when sentencing courts consider imposing a special condition like this one, that such “broad search and seizure authority” be “connected to [the defend- ant’s] offense, history, and personal characteristics.” Goodwin, 717 F.3d at 523. In light of the nature of Taylor’s offense, we find the authority was sufficiently connected here, and we uphold this special condition.”

Vacated and Remanded

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Criminal

7^th Circuit Court of Appeals

Officials: BAUER, EASTERBROOK, and RIPPLE, Circuit Judges

Motion to Suppress – Lack of Probable Cause

No. 14-3554

United States of America v. Andre Reaves

Reliable information from confidential informant indicating make model and year of appellants car, accompanied by officers watching the “events that [the informant] predicted unfold” sufficient for probable cause.

“We have found probable cause to search a suspect’s vehicle existed under the automobile exception based, in part, on an informant’s tip before. In United States v. Washburn, 383 F.3d 638 (7th Cir. 2004), we found that probable cause to search a vehicle existed where an informant provided inside information about the suspect’s identity and his ties to drug trafficking where that information was later corroborated by law enforcement officials. Id. at 642–43. We also noted that the informant’s reliability was confirmed as the officers “watched the events that [the informant] predicted unfold.” Id. at 642. The same happened here. The informant told police that Reaves would drive his white Chrysler Pacifica up to Detroit to receive his heroin supply, and then return to Peoria. The officers observed Reaves doing exactly this via the warrant-authorized GPS tracker. A reasonable officer, knowing what Officer Leach knew, would have had probable cause to believe Reaves’s Pacifica contained evidence of criminal activity, namely drug trafficking, under these circumstances. Thus, the police had probable cause to search Reaves’s vehicle pursuant to the automobile exception to the Fourth Amendment’s warrant requirement and Reaves’s motion to suppress was rightfully denied.”

Affirmed.

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Criminal

7^th Circuit Court of Appeals

Officials: FLAUM, KANNE, and SYKES, Circuit Judges

Pleas & Sentencing – Plea Withdrawal – Waiver

No. 14-3545

United States of America v. Sandra McGuire

Appellant misunderstanding of district court “accepting” her plea does not make her plea involuntary.

“Indeed, McGuire does not specify what she means by “in effect” in the context of plea agreements. It is not clear to us that an adjudication of guilt has much impact on the plea agreement, at least as far as McGuire’s argument is concerned. For one thing, courts remain free to reject plea agreements even after an adjudication of guilt. And for an- other, Federal Rule of Criminal Procedure 11, the rule governing pleas, includes the following statement regarding a defendant’s ability to withdraw a guilty plea: “[a] defendant may withdraw a plea of guilty … before the court accepts the plea, for any reason or no reason; or … after the court accepts the plea, but before it imposes sentence.” Fed. R. Crim. P. 11 (emphasis added). This rule does not mention when a defendant has been “adjudicated guilty;” it mentions when the court “accepts” the plea. In this case, the court stated at the plea hearing that it “accepted” the plea.”

Dismissed

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Criminal

7^th Circuit Court of Appeals

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

Search & Seizure

No. 15-1115

United States of America v. Bodie Witzlib

Consent trumps officer’s refusal to obtain warrant prior to searching of home for explosives.

“The grandmother owned the house but Witzlib also resided there and he argues that therefore his consent was required. We don’t think so. It would be one thing had the police wanted to search his bedroom. To say that the owner of the house could consent to such a search would be as unreasonable as saying that a hotel’s owner or manager could consent to a police search of all the guest rooms. See Georgia v. Randolph, 547 U.S. 103, 112 (2006); Minnesota v. Carter, 525 U.S. 83, 88–90 (1998); cf. Minnesota v. Olson, 495 U.S. 91 (1990). Or that the person refusing consent had a lesser right to decide whether to permit the search than the person granting consent did, for example if they were a married couple and the search would be of their joint household, as in Georgia v. Randolph.”

Affirmed.

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Wisconsin Court of Appeals – CIVIL CASES

Civil

WI Court of Appeals – District II

Officials: REILLY, P.J.

OWI PAC – Sobriety Test

2015AP585

County of Winnebago v. Kelli M. Kosmosky

Kelli Kosmosky appeals the circuit court’s denial of her motion to suppress evidence and subsequent conviction for operating a motor vehicle with a prohibited alcohol concentration. Kosmosky was arrested by state patrol officer Phil Koehler, who responded to a call of an unconscious female in the driver’s seat of a car parked at a gas station. Koehler arrested Kosmosky after he observed signs of intoxication and she failed field sobriety tests. We affirm.

Decision

Affirmed

Civil

WI Court of Appeals – District IV

Officials: Higginbotham, Sherman, and Blanchard, JJ.

2014AP2211

Karen L. Raventscroft v. Charles L Ravenscroft

Karen Ravenscroft appeals a circuit court order that reduced the monthly maintenance payments Charles Ravenscroft is obligated to pay to Karen.1 Karen contends that the court erred by modifying maintenance because, according to Karen: (1) Charles did not meet his burden to show a substantial change in circumstances; and (2) the circuit court failed to consider the dual objectives of support and fairness. We conclude that the circuit court properly exercised its discretion by modifying the maintenance award based on a substantial change in circumstances. We affirm.

Decision

Affirmed. Per Curiam.

Civil

WI Court of Appeals – District IV

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

Bus Rule –

2015AP146

Wisconsin Carry, Inc. v. City of Madison

Where the “bus rule” prohibiting a person from traveling on a city bus while carrying a weapon fails to fit within the preemption limitations set forth by Wis. Stat. 66.0409.

Notably, while Wisconsin Carry generally asserts that WIS. STAT. § 66.0409 preempts the bus rule, Wisconsin Carry does not argue that a rule adopted by a city agency, such as the commission here, fits within the plain meaning of either “ordinance” or “resolution” as those terms are used in the statute. To the contrary, Wisconsin Carry concedes at the outset of its briefing that the bus rule is not, in the words of Wisconsin Carry, “an enacted ordinance or an adopted resolution.” This is a significant concession. As noted, “statutory interpretation ‘begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.’” Kalal, 271 Wis. 2d 633, ¶45

Affirmed. Recommended for Publication

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Wisconsin Court of Appeals – CRIMINAL CASES

Criminal

WI Court of Appeals – District III

Officials: HRUZ, J

OWI 3^rd – Blood Test

2014AP792-CR

State of Wisconsin v. James Michael Warren

James Warren appeals a judgment convicting him of operating while intoxicated (OWI), as a third offense. Warren argues the results of his postarrest blood test should be suppressed because he had a reasonable, medically based objection to his blood being drawn and, accordingly, his conviction should be vacated. We affirm, although on different grounds than the circuit court.

Decision

Affirmed

Criminal

WI Court of Appeals – District I

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

OWI Sixth – Blood Alcohol Test

2014AP1746-CR

State of Wisconsin v. Jeffrey Allen Jacobi

Appellant Jeffrey Allen Jacobi appeals a judgment convicting him of operating a vehicle while intoxicated, as a sixth offense. He argues that the circuit court should have suppressed the results of his blood alcohol test because the police did not give him an alternate test when he asked for it. We affirm.

Decision

Affirmed. Per Curiam.

Criminal

WI Court of Appeals – District III

Officials: STARK, J.

Reasonable Suspicion – Stop

2014AP2119-CR

State of Wisconsin v. Kim M. Lerdahl

The State of Wisconsin appeals an order granting Kim Lerdahl’s motion to suppress evidence obtained as a result of a traffic stop. The State argues the circuit court erred when it ruled that the arresting officer did not have reasonable suspicion or probable cause to stop Lerdahl’s vehicle. We affirm.

Decision

Affirmed

Criminal

WI Court of Appeals – District II

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

Motion to Suppress – Collective Knowledge Doctrine

2014AP2099-CR

State of Wisconsin v. Peter N. Ott

Peter N. Ott appeals from a judgment convicting him of attempted robbery as party to a crime and first-degree recklessly endangering safety while using a dangerous weapon. He contends that the circuit court erred in denying his motion to suppress evidence obtained as a result of his arrest. We disagree and affirm.

Decision

Affirm. Per Curiam.

Criminal

WI Court of Appeals – District II

Officials: NEUBAUER, C.J.

Blood Test Results – Chain of Custody

2014AP272

State of Wisconsin v. Jacob A. Martinez

Jacob A. Martinez appeals from his judgment of conviction for operating a motor vehicle with a detectable amount of a restricted controlled substance. See WIS. STAT. § 346.63(1)(am). Martinez argues that the circuit court erred when it admitted the blood test results showing that Martinez had tetrahydrocannabinols (THC) in his blood at the time of the arrest because the State did not establish a sufficient chain of custody to admit the blood test results. The circuit court did not erroneously exercise its discretion in admitting the blood test results, which were properly authenticated with a sufficient chain of custody. We affirm.

Decision