By: WISCONSIN LAW JOURNAL STAFF//December 2, 2016//
7th Circuit Court of Appeals
Case Name: First American Bank v. Federal Reserve Bank of Atlanta, et al
Case No.: 16-1122
Officials: BAUER, POSNER, and KANNE, Circuit Judges
Focus: Mertiless Suit
“In 2013 an Illinois lawyer named David M. Goodson received an email from a person who represented himself or herself to be a woman named “Fumiko Anderson.” The email stated that she wanted to hire Goodson to help her recover money that she claimed to be owed in a divorce proceeding. Later Fumiko told him that her retaining a lawyer had convinced her ex-husband to settle, and that Goodson should expect a substantial check in the mail to cover his fee plus the amount of the settlement, which he was to pass on to her. The check that Goodson received, marked payable to the order of “Law Office David M. Goodson,” was drawn on the account of First Aid Corporation (an Illinois manufacturer—doing business as 1st Ayd Corporation—of industrial and sanitation products), at a Chicago bank named First American. The check looked like a real check but actually was counterfeit. The scammers wrote a check on First American for $486,750.33 to Goodson, which he deposited in his client trust account in Citizens Bank, N.A., one of the defendants in this case. Fumiko told Goodson she needed the money immediately. Goodson directed the bank to transfer it to a Japanese entity that he believed to be Fumiko but actually was part of an Internet-based fraudulent check scheme known as the “Fumiko Bandit.” So First Aid had lost the entire $486,750.33 that had been transferred out of its account by the fraudulent check; the money had been stolen by Fumiko Bandit”
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Edward Thompson
Case No.: 16-1105
Officials: BAUER, POSNER, and MANION, Circuit Judges
Focus: 4th Amendment
Defendant–appellant, Edward Thompson, was indicted on one count of possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1). He filed a motion to suppress the cocaine that was seized after he gave his consent for law enforcement to search his apartment. He argued that a series of Fourth Amendment violations led to the discovery of the contraband and that his consent was not voluntary. The district court denied Thompson’s motion. We affirm.
Affirmed
7th Circuit Court of Appeals
Case Name: Juan Suarez et al v. W.M. Barr & Company, Inc.
Case No.: 15-3602
Officials: WOOD, Chief Judge, and FLAUM and WILLIAMS, Circuit Judges.
Focus: Failure to Warn – Causation
Juan Suarez used Goof Off, an extremely flammable product made by W.M. Barr, to remove paint from a basement floor. While doing so, a fire erupted in the basement and severely burned him. Juan and his wife sued Barr, alleging failure to warn and defective design under Illinois law. The Suarezes appeal the district judge’s grant of summary judgment in Barr’s favor. We conclude that the district judge appropriately rejected the Suarezes’ failure‐to‐warn claim. The warning label on the Goof Off can adequately identified the product’s principal hazards, as well as the precautionary measures to be taken while using the product. However, we reverse and remand the district judge’s rejection of the Suarezes’ design defect claims under both strict liability and negligence. The Suarezes have adequately shown that the fire may have been caused by static sparks created when Juan agitated Goof Off with a brush as the warning label instructed. So a genuine factual issue exists as to whether an ordinary consumer would expect a fire to erupt under these circumstances, whether this risk outweighs the benefits associated with Goof Off, and whether Barr should have known that agitating Goof Off could have created static sparks sufficient for ignition.
Affirmed in part
Reversed and remanded in part
7th Circuit Court of Appeals
Case Name: Jennifer L. Krieger
Case No.: 15-2481
Officials: ROVNER, SYKES, and HAMILTON, Circuit Judges.
Focus: Sentencing
The first time this appeal was before us, on direct review, Jennifer Krieger was seeking to vacate the twenty-year sentence she received when her friend died after chewing a fentanyl pain patch provided by Krieger. At that time, she objected to the manner in which the government proved that “death resulted” from the distribution of the drugs—as a sentencing factor by a preponderance of the evidence, rather than as an element proved beyond a reasonable doubt—and also argued that the evidence was insufficient to support a finding that the victim’s death had occurred because of the fentanyl. Given the statutory sentencing structure in place at the time, and the fact that the district court found, by a preponderance of the evidence, that death had resulted from the distribution, there was only one sentence that the district court could give, and that was twenty years. The district court expressed discomfort with its lack of discretion and the fact that it appeared that Krieger was being sentenced for homicide despite having been convicted only of distributing fentanyl—concerns that this court echoed on appeal. Nevertheless, based on then current law, we found no error and affirmed the decision of the district court. After Krieger’s sentencing and after her direct appeal, the Supreme Court issued two decisions that touch on the very issues raised at Krieger’s sentencing. Consequently, on June 30, 2014, Krieger filed a petition under 28 U.S.C. § 2255 asking the court to vacate, set aside, and correct her sentence based on new Supreme Court rules that she argues should be applied retroactively on collateral review.
Vacated and Remanded
7th Circuit Court of Appeals
Case Name: Miguel Perez-Fuentes v. Loretta E. Lynch
Case No.: 14-2504
Officials: BAUER, POSNER, and EASTERBROOK, Circuit Judges.
Focus: Immigration – Removal
Petitioner Miguel Perez-Fuentes, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ decision affirming the denial of his application for cancellation of removal. See 8 U.S.C. § 1229b(b). The Board affirmed the denial based on the Immigration Judge’s alternate determination that Perez-Fuentes did not establish the requisite hardship for cancellation. See 8 U.S.C. § 1229b(b)(1)(D). Perez-Fuentes challenges several aspects of his hearing. He contends that the IJ improperly excluded evidence and failed to develop the record as required by 8 U.S.C. § 1229a(b)(1) and 8 C.F.R. § 1240.32(b). We dismiss Perez-Fuentes’ petition for review, in part for lack of jurisdiction, and deny the remainder of the petition.
Petition for Review Dismissed
7th Circuit Court of Appeals
Case Name: United States of America v. Damian Patrick
Case No.: 15-2443
Officials: WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges
Focus: Sentencing
Police in Wisconsin arrested Damian Patrick while he was in a car on a public street and found him armed. That led to this federal prosecution, be‐ cause Patrick’s criminal record made it unlawful for him to possess firearms. 18 U.S.C. §922(g)(1). The district court denied his motion to keep the gun out of evidence. 2015 U.S. Dist. LEXIS 1421 (E.D. Wis. Jan. 7, 2015), approving a magistrate judge’s recommendation, 2014 U.S. Dist. LEXIS 179522 (E.D. Wis. Sept. 30, 2014). Patrick pleaded guilty but reserved the opportunity to contest the validity of his arrest, and thus the validity of the gun’s seizure. He now appeals from the 57‐month sentence he received.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Michael Flournoy
Case No.: 14-2325
Officials: FLAUM, MANION, and HAMILTON, Circuit Judges.
Focus: Resentencing – Court Error
Following a jury trial, Michael Flournoy was convicted of one count of conspiring to possess cocaine and one count of attempting to possess cocaine. Flournoy appeals, claiming he is entitled to a new trial be‐ cause the prosecutor made inappropriate comments during closing argument and because the government presented testimony from a cooperating witness that conflicted with that witness’s plea agreement. Flournoy also claims that the district court erred in adding several discretionary conditions to the terms of his supervised release without explanation. We affirm Flournoy’s conviction, but remand for resentencing.
Affirmed
7th Circuit Court of Appeals
Case Name: Anthony Rodriguez v. Greg Gossett
Case No.: 13-1877
Officials: ROVNER and SYKES, Circuit Judges, and WOOD, District Judge.
Focus: Ineffective Assistance of Counsel
Anthony Rodriguez was convicted of two counts of predatory criminal sexual assault of a child following a jury trial in the State of Illinois in 1997. Rodriguez has petitioned for a writ of habeas corpus, contending that he was deprived of effective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and now appeals the district court’s denial of his petition. Because we conclude that the Illinois Appellate Court did not unreasonably apply the Strickland standard, we affirm the district court’s denial of Rodriguez’s habeas petition.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Darryl Anthony Worthen
Case No.: 15-3521
Officials: RIPPLE, KANNE, and ROVNER, Circuit Judges
Focus: Waiver of Appeal
Appellant waived right to appeal sentence in plea agreement
“Before we can address this argument, Worthen must convince us that he has not waived his right to an appeal. Gener‐ ally speaking, appeal waivers are enforceable and preclude appellate review. United States v. Sines, 303 F.3d 793, 798 (7th Cir. 2002). Even so, we have recognized a few narrow exceptions to this rule—one of which is that a defendant may al‐ ways contest a sentence that exceeds the statutory maximum for the crime committed. United States v. Smith, 759 F.3d 702, 706 (7th Cir. 2014). This makes perfect sense. When a defend‐ ant pleads guilty to a crime and waives his right to an appeal, he acquiesces to the court’s discretion to impose a sentence that he knows will fall within a specified statutory range. In‐ deed, that’s what makes the waiver knowing and intelligent, and thus enforceable. But if the court disregards that permissible sentencing range and imposes a sentence exceeding that which the defendant knew was the harshest penalty he could receive, then there is no knowing and intelligent waiver at all.”
Appeal Dismissed
WI Court of Appeals – District I
Case Name: Milwaukee City Housing Authority v. Va’Na Barki
Case No.: 2015AP1359
Officials: Kessler, J.
Focus: Rent Adjustments
Va’Na Barki, pro se, appeals a judgment of the circuit court dismissing her counterclaim against the Milwaukee City Housing Authority. We affirm.
WI Court of Appeals – District I
Case Name: DJK 59, LLC et all v. City of Milwaukee
Case No.: 2015AP2046
Officials: Curley, P.J., Brennan and Brash, JJ.
Focus: Voluntary Payment Doctrine – Estoppel
The City of Milwaukee (the City) appeals a judgment entered against it and in favor of DJK 59 LLC, JBC 59 LLC, Juneau Village II Limited Partnership, Juneau Village Shopping Center LLC, and 829 Cass LLC (collectively, DJK) in the amount of $614,336.49 plus statutory costs. On appeal, the City argues that the trial court erred in denying its summary judgment motion and instead entering judgment in favor of DJK because the voluntary payment doctrine applies to bar recovery and that, alternatively, WIS. STAT. § 893.93(1)(a) (2013-14) applies to partially bar DJK’s recovery. In response, DJK argues that should this court agree with the City, we should then review—and reverse—the trial court’s rejection of the estoppel argument DJK argues prohibits the City from even raising the two affirmative defenses at issue. For the reasons that follow, we affirm in part and reverse in part with instructions to the trial court upon remand
Recommended for publication
WI Court of Appeals – District III
Case Name: Bernard Seidling v. Dori Stepan
Case No.: 2015AP2219
Officials: Stark, P.J., Hruz and Seidl, JJ.
Focus: Damages – Wisconsin Consumer Act
Bernard Seidling appeals an order awarding Dori Stepan compensatory damages, punitive damages, and actual attorney fees and costs on her counterclaim alleging abuse of process and Wisconsin Consumer Act violations. Seidling argues: (1) the circuit court erred by declining to enforce a settlement agreement between the parties; (2) the court erred by granting Stepan default judgment as a sanction for Seidling’s failure to appear at a hearing; (3) the court erroneously exercised its discretion by awarding Stepan attorney fees and costs in the amount of $97,735.51 as compensatory damages; (4) the court erroneously exercised its discretion with respect to the amount of punitive damages; and (5) the court erred by awarding Stepan actual attorney fees and costs. We reject each of these arguments and therefore affirm in part.
WI Court of Appeals – District IV
Case Name: State of Wisconsin et al v. Steven R. Coons
Case No.: 2016AP566
Officials: Kloppenburg, P.J.
Focus: Child Custody
This is an ongoing dispute over physical placement of two minor children born in 2003 and 2005, between the children’s mother, Lori Erickson, and the children’s adjudicated father, Steven Coons.2 Lori and Steven have both filed multiple motions since 2006 to modify physical placement. In response to the most recent motions, pertinent to this appeal, on June 16, 2015, the circuit court entered a decision and order awarding Steven limited physical placement according to a specific schedule and with certain conditions. Lori denied Steven placement, and after a hearing the circuit court entered an order on October 6, 2015 finding Lori in contempt for violating the June 2015 physical placement order and setting purge conditions. Lori continued to deny Steven placement, and after a hearing the circuit court entered an order on March 11, 2016 finding Lori in contempt for violating the prior placement and contempt orders, sentencing her to ten days in jail, and setting purge conditions. This appeal followed. For the reasons stated below, I affirm.