Weekly Case Digests — Feb. 13 – Feb. 17, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Jason L. Nichols

Case No.: 16-1628

Officials: RIPPLE, ROVNER, and SYKES, Circuit Judges

Focus: Sentencing Guidelines

Jason Nichols was charged with two counts of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). Prior to trial, Mr. Nichols moved to suppress the evidence relating to the second count, and, following an evidentiary hearing, the district court denied his motion. He then pleaded guilty to count two, reserving his right to appeal the suppression issue. The Government moved to dismiss the first count and the court granted that motion. In calculating the appropriate guidelines range, the district court denied Mr. Nichols credit for acceptance of responsibility and imposed an enhancement for obstruction of justice. It also concluded that he was not entitled to a reduction in his offense level on the ground that all the firearms and ammunition in his possession were used exclusively for sporting purposes. The court imposed a sentence of 27 months’ imprisonment, at the low end of the applicable guidelines range. Mr. Nichols now challenges his conviction and sentence. He contends that his confession to law enforcement was involuntary and should have been suppressed by the district court. He further contends that, in calculating his sentencing guidelines range, the court should have given him credit for acceptance of responsibility, see U.S.S.G § 3E1.1, and should not have imposed an enhancement for obstruction, id. § 3C1.1. Finally, he submits that his guidelines range should have been reduced because all of the contraband for which he was prosecuted was used for lawful sporting purposes. See U.S.S.G. § 2K2.1(b)(2). We affirm. The district court was faced with opposing versions of the circumstances of Mr. Nichols’s confession from Mr. Nichols himself and his probation officer; it made a credibility determination, which we have no cause to upset on appeal. In light of its determination that Mr. Nichols testified falsely in connection with his motion to suppress, the court committed no reversible error in applying the obstruction enhancement and denying credit for acceptance of responsibility. Finally, Mr. Nichols’s unsupported statements failed to carry his burden of demonstrating that the contraband involved in his case was used exclusively for lawful sporting purposes as would justify a reduction under U.S.S.G. § 2K2.1(b)(2).

Affirmed

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7^th Circuit Court of Appeals

Case Name: Martin Garcia-Hernandez v. Dana J. Boente

Case No.: 15-2835

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

Focus: Removal Proceedings

This case lies at the intersection of immigration law and legal measures to prevent domestic violence. Even if a state court does not impose severe punishment for an alien’s violation of a domestic protective order, the immigration consequences may be severe, as in this case. Petitioner Martin Garcia‐Hernandez, a citizen of Mexico, sought cancellation of removal, arguing that his removal would cause exceptional and extremely unusual hardship for his U.S.‐citizen children. See 8 U.S.C. § 1229b(b)(1). An immigration judge concluded that he was statutorily ineligible for this discretionary form of relief because of a 2010 conviction for violating a domestic protection order in Illinois. See 8 U.S.C. § 1227(a)(2)(E)(ii). The Board of Immigration Appeals affirmed. On judicial review, we agree that Garcia‐Hernandez’s conviction renders him ineligible for the relief he seeks. We deny the petition for review

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Tuwayne Bell v. Supervisor Kay, et al

Case No.: 15-2479

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

Focus: Civil Right Suit

Tuwayne Bell, an Illinois prisoner, appeals the denial of his application to proceed in forma pauperis and the dismissal of his civil rights suit for failure to prosecute. The district court denied his application because Bell did not attach to it his inmate trust-account ledger. But the court did not assess Bell’s explanation that he could not attach the ledger because prison staff had refused to give it to him. Because the district court unreasonably dismissed the suit without first evaluating Bell’s exculpatory explanation, we vacate the dismissal and remand. Bell began this suit by filing a request for pauper status and his complaint. The complaint alleged that while he was working in the kitchen at the jail where he was previously detained, hot water spilled on his foot and burned him. He sued the kitchen supervisors, the food supply company, and others, and asserted that they deliberately disregarded inmates’ safety by ignoring complaints of unsafe conditions and providing improper protective gear. His request to proceed in forma pauperis did not include a printout showing transactions in his trust fund accounts over the previous six months, as required by 28 U.S.C. § 1915(a)(2). But Bell swore that he could not submit this printout because staff at East Moline Correctional Center, where he was incarcerated at the time he filed suit, refused to give him a copy or sign anything. The district court denied Bell’s application to proceed without prepaying fees because, without the ledger, it was incomplete. Without setting a deadline, the court warned Bell that if he did not submit a new application with a copy of the trust fund ledger or pay the full filing fee, it would dismiss his case. The court also noted Bell’s statement “that

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Nathaniel Brown v. Michael Randle, et al

Case No.: 14-2480

Officials: FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges

Focus: 4^th Amendment Violation

In 1994 Nathaniel Brown was convicted of four sex offenses and sentenced to prison in Illinois. His projected release date was July 10, 2009, after which his sentence required him to serve three years of “mandatory supervised release,” a status that officials in Illinois often call parole. When July 10 arrived, however, the Illinois Department of Corrections did not release Brown. Instead it issued a “Parole Violation Report” reciting that Brown had committed two anticipatory violations of the terms of supervised release. First, he had refused to accept electronic monitoring that is required of sex offenders; second, he lacked a place where he could lawfully reside outside the prison’s walls. (Like many other states, Illinois limits the locations where sex offenders can make their homes.) The problems are related. Illinois tries to find lawful accommodations for sex offenders who promise to wear electronic monitoring devices, but because Brown rejected the device the prison system did not try to help him find a place to live. Brown seeks damages for the delay in releasing him, yet he does not contend that either the electronic-monitoring or the residential-location condition of release is invalid. We have held that one is proper, and the Eighth Circuit has sustained the other. See Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016) (state may require a sex offender to wear a GPS ankle bracelet as a condition of release); Weems v. Little Rock Police Department, 453 F.3d 1010 (8th Cir. 2006) (residential-location limits for sex offenders are valid); Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (same). Cf. Doe v. Lafayette, 377 F.3d 757 (7th Cir. 2004) (en banc) (states may prevent sex offenders from visiting places where children congregate). Nonetheless Brown contends that he was entitled to immediate release without regard to those conditions. Perhaps the state could have picked him up later and revoked his release, he allows, but first it had to discharge him. He contends that his confinement violated both the Fourth Amendment, applied to the states through the Fourteenth Amendment, and the Due Process Clause of that amendment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kevin A. Hoffman

Case No.: 16-1595

Officials: RIPPLE, MANION, and ROVNER, Circuit Judges.

Focus: Sentencing

For conduct arising out of one day’s sexual abuse, Kevin Hoffman was convicted after a two‐day federal jury trial of one count of exploitation of a child and one count of possession of child pornography in interstate commerce, and faced a sentence of up to thirty years in prison. While his sentence was pending, he was convicted in state court of sexual abuse of the same child over a period of eighteen months, and faced a sentence of up to fifty years in state prison. This case involves the discretion of a federal district court judge under U.S.S.G. § 5G1.3 to impose a concurrent or consecutive sentence, or to decline to impose either, when a subsequent state sentence for relevant conduct is anticipated. Hoffman argues that the plain language of the Sentencing Guidelines requires a district judge to impose a concurrent sentence in such a situation. Because the Guidelines are advisory, and because U.S.S.G. § 5G1.3 is inapplicable in this case, we affirm the decision below.

Affirmed

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7^th Circuit Court of Appeals

Case Name: A. Clay Cox v. Nostaw, Inc.

Case No.: 16-1389

Officials: Ripple

Focus: Bankruptcy

Appellant A. Clay Cox, the bankruptcy trustee for Central Illinois Energy Cooperative, asks this court to dismiss his appeal and remand in light of the bankruptcy court’s statement that it would approve a settlement between the parties.

Motion Denied

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7^th Circuit Court of Appeals

Case Name: Peggy Zahn v. North American Power & Gas, LLC

Case No.: 15-2332

Officials: KANNE and SYKES, Circuit Judges, and GILBERT, District Judge

Focus: Subject Matter Jurisdiction

Peggy Zahn filed a class-action complaint against North American Power & Gas, LLC (“NAPG”)—an Alternative Retail Electric Supplier—alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, and unjust enrichment. NAPG moved to dismiss the complaint for lack of subject-matter jurisdiction and for failure to state a claim. The district court granted NAPG’s motion to dismiss for lack of subject-matter jurisdiction, believing that “Illinois law grants the [Illinois Commerce Commission (“ICC”)] exclusive jurisdiction over the matter.” Zahn v. N. Am. Power & Gas, LLC, No. 14 C 8370, 2015 WL 2455125, at *3 (N.D. Ill. May 22, 2015). The district court alternatively granted NAPG’s motion to dismiss for failure to state a claim, addressing the merits of the suit. This appeal followed.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Stephen Susinka v. United States of America

Case No.: 17-1110

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

Focus: Motion to Vacate Sentence

Stephen Susinka has filed his third application for permission to file a successive motion under 28 U.S.C. § 2255 to vacate his 20‐year sentence for participat‐ ing in a RICO conspiracy. He wants to challenge his sentence on the authority of Hurst v. Florida, 136 S. Ct. 616 (2016), which held that Florida’s sentencing procedure for capital cases, whereby the jury delivers an advisory verdict but the judge decides whether to impose a death sentence, violated a defendant’s Sixth Amendment right to a jury trial. Id. at 620– 21. Of course the present case is not a capital case; and any‐ way Hurst was decided in January 2016—months before Susinka filed either of his previous applications, and 28 U.S.C. § 2255(h)(2) permits a successive motion to vacate a sentence on the basis of a new rule of constitutional law only if the new rule was previously unavailable to the movant, which it was not in this case

Motion Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Tyran Patton

Case No.: 16-1319

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

Focus: Sentencing

Tyran Patton was a high‐level drug dealer who, after being arrested for an unrelated firearms offense, agreed to cooperate with the government. Patton acted as an informant in the government’s investigation of illegal firearm sales but then disappeared for several months. After he reemerged, he pleaded guilty to the drug charges and was sentenced. At sentencing the government refused to move for a sentencing reduction for substantial cooperation. The district court then sentenced Patton to a below‐guidelines prison sentence of 244 months’ imprisonment. Patton appeals, claiming the district court should have forced the government to file a motion for a sentencing reduction. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Marshall McDaniel

Case No.: 15-3638

Officials: e FLAUM and KANNE, Circuit Judges, and MAGNUSSTINSON, District Judge

Focus: Motion to Suppress

In 2001, police officers arrested Marshall McDaniel while investigating his girlfriend’s murder. McDaniel confessed during postarrest interrogation. After pleading not guilty, McDaniel unsuccessfully attempted to suppress his confession. He was convicted in Illinois state court; on direct appeal, the Illinois Appellate Court affirmed. After his state petition for postconviction relief was denied, McDaniel petitioned the federal district court for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition. McDaniel now argues that appellate counsel was ineffective for failing to argue that his initial arrest was unlawful and that his confession was inadmissible as fruit of the unlawful arrest. On appeal, we review the Illinois Appellate Court’s decision to deny McDaniel’s petition for postconviction relief. People v. McDaniel, No. 1-06-3283, slip op. (Ill. App. Ct. Sept. 30, 2009). Because McDaniel was not prejudiced by appellate counsel’s failure to raise his Fourth Amendment claim, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Minas Litos, et al

Case No.: 16-1384; 16-1385; 16-2248; 16-2249; 16-2330

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

Focus: Restitution

The three defendants were indicted in 2012 on charges of having committed and conspired to commit wire fraud, in violation of 18 U.S.C. §§ 1343 & 1349, by extracting money from lenders (including Bank of America) that had financed the sale of properties owned by the defendants in Gary, Indiana. The fraud lay in the fact that the defendants had represented to Bank of America (we can ignore the other lenders, who are not affected by this litigation) that the buyers of the properties were the source of the down payments on the houses, whereas in fact the defendants were the source, having given the buyers the money to enable them to make the down payments. They had also helped the buyers provide, in their loan applications to Bank of America, false claims of creditworthiness. In each of the transactions the defendants walked away with the purchase price of the property they had sold minus the down payment amount, since the “down payment” they received was their own cash, which they’d surreptitiously transferred to the impecunious buyer. The defendants’ guilt of fraud is not at issue. The issue is the propriety of the restitution, in the amount of $893,015, that the district judge ordered the defendants to make to Bank of America, on the ground that they had cheated the bank by pretending that the buyers, not they, were the source of the down-payment money for the sale of their houses. The judge credited a written declaration by a Bank of America representative that “had [the Bank] known the true source of [the] down payment funds, [it] would not have issued the subject loans” to the buyers of the properties. The district judge rejected the defendants’ argument that the bank was not entitled to restitution because it had been a coconspirator; he ruled that the bank “did not participate in the kickbacks to buyers or provide false information on loan applications.”

Reversed and Remanded in part

Affirmed in Part

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7^th Circuit Court of Appeals

Case Name: Douglas A. Bird v. Nancy A. Berryhill

Case No.: 16-2000

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

Focus: Disability Insurance Benefits

The Social Security Administration denied Douglas Bird’s application for disability insurance benefits. After he sought judicial review, 42 U.S.C. § 405(g), the Commissioner agreed with him that the agency’s adverse decision should be set aside and moved that the matter be remanded for further proceedings before an administrative law judge. But that proposal did not satisfy Bird, who wanted the district court to bypass further proceedings before an ALJ and instead simply direct the agency to award him benefits. The district court refused, precipitating this appeal.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Charles Beal, Jr. v. James Beller et al

Case No.: 14-2628

Officials: WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges

Most Fourth Amendment issues arise when a criminal defendant files a motion to suppress evidence allegedly collected in violation of its standards, but this is not such a case. Charles Beal, Jr., has brought a civil action under 42 U.S.C. § 1983, in which he asserts that two detectives on the Kenosha, Wisconsin, police force lacked any justification recognized by the Fourth Amendment to stop him, to frisk him, and then to conduct a more thorough search. The district court granted summary judgment for the Detectives. It found that the tip on which they acted was not anonymous, as Beal contended, and that their actions were permissible under Terry v. Ohio, 392 U.S. 1 (1968). We conclude that the critical facts were genuinely disputed, and thus we reverse and remand for further proceedings.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Margarita Del Pilar Fitzpatrick v. Jeff Sessions

Case No.: 15-2204; 16-1864

Officials: EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges

Focus: Removal

Margarita Del Pilar Fitzpatrick, a citizen of Peru, had lived in the United States for three years when she applied for a driver’s license in Illinois. She contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Peruvian passport—but she admits that she also checked a box claiming to be a citizen of the United States. The form sternly warns aliens not to check that box, and Fitzpatrick does not contend that she has any difficulty understanding written English. (She came to the United States in 2002 to study English in college, and after earning a certificate as a medical translator she spent some time working as an interpreter before training as a nurse.) As required by the motor-voter law, 52 U.S.C. §§ 20503–06, the form also contained a checkbox that would lead to registration as a voter. Fitzpatrick maintains that the desk clerk asked whether she wanted to register, and when she inquired “Am I supposed to?” he replied: “It’s up to you.” She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials.

Petition Denied

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Stephanie T. Kunz v. Patrick J. Kunz

Case No.: 2015AP2490

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

Focus: Divorce Proceedings

Patrick Kunz challenges the circuit court’s division of property and maintenance determination in his divorce proceedings. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael T. Gant

Case No.: 2016AP647-CR

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

Focus: Sentencing

Michael Gant appeals a judgment convicting him of aggravated battery, resisting an officer, and obstructing an officer. He also appeals an order denying his postconviction motion for sentence modification. Gant contends the sentencing court mistakenly believed he would be eligible for

he Earned Release Program (ERP) and the Challenge Incarceration Program (CIP), and Gant’s ineligibility for those programs constitutes a new factor justifying a sentence reduction. Because Gant has not established by clear and convincing evidence that a new factor exists, see State v. Harbor, 2011 WI 28, ¶36, 333 Wis. 2d 53, 797 N.W.2d 828, we affirm the judgment and order

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael Steel, Jr.

Case No.: 2016AP796-CR

Officials: Seidl, J.

Focus: Court Error – Substitution of Counsel

Michael Steel, Jr., appeals a judgment of conviction for obstructing an officer as a repeat offender. On appeal, Steel argues the circuit court erroneously exercised its discretion by denying Steel’s requests for substitute court-appointed trial counsel and to reschedule the trial date. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony Colon

Case No.: 2016AP1071-CR

Officials: Dugan, J.

Focus: Motion Seeking New Trial

Anthony Colon appeals from his conviction for criminal damage to property, battery, and disorderly conduct, and the order denying his postconviction motion seeking a new trial. Colon seeks to overturn his conviction asserting that his constitutional rights to the presumption of innocence and equal protection of the laws were violated because during deliberations a juror saw him shackled to other defendants. He maintains that trial counsel was ineffective for failing to seek a mistrial on that ground. Upon a thorough review of the record and the submissions, and for the following reasons, the court affirms.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Nicholas W. Stern

Case No.: 2016AP1534

Officials: Hruz, J.

Focus: OWI – Reasonable Suspicion

Nicholas Stern appeals a judgment finding him guilty of improperly refusing to submit to chemical testing following his arrest for operating a motor vehicle while intoxicated (OWI). Stern argues the officer who arrested him lacked reasonable suspicion to stop his vehicle. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brian Hayes

Case No.: 2015AP1720

Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

Focus: Extended Supervision – Sentencing

Ronald Schroeder appeals pro se from a circuit court order that affirmed, on certiorari review, an administrative decision to revoke his extended supervision. For the reasons that follow, we affirm.

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WI Court of Appeals – District II

Case Name: Northern Trust Company, et al v. Ernest C. Styberg, Jr. et al

Case No.: 2016AP19

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

Focus: Adverse Possession

In this quiet-title case, the Northern Trust Company, trustee of the Harold Byron Smith, Jr., Trust (Smith), claimed title by adverse possession to a parcel of Walworth County land. The circuit court rendered a judgment in favor of the Ernest C. Styberg, Jr., Trust (Styberg; Ernest if Ernest personally) and Geneva Lake Conservancy, Inc. (the Conservancy). The court concluded that Smith failed to show that it adversely possessed the disputed area for twenty continuous years, a requirement to obtain title by adverse possession under WIS. STAT. § 893.25 (2015-16). We affirm because Smith’s predecessor in interest lacked the subjective intent to assert ownership to the parcel.

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WI Court of Appeals – District II

Case Name: Alexis Krebsach v. MMIC Insurance, Inc.

Case No.: 2016AP179

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

Focus: Informed Consent

During the birth and delivery of Alexis Krebsbach, she suffered a brachial plexus injury. A jury found the obstetriciangynecologist who delivered Alexis, Dr. Kathryn J. Kostic, was not negligent in the manner in which she delivered her, but that Kostic did not obtain informed consent from Alexis’ mother, Tina Krebsbach. The circuit court granted a new trial on the informed consent claim, concluding that one of the questions posed to the jury— “Did Kathryn Kostic, M.D. fail to disclose to Tina Krebsbach the risks and benefits of proceeding with a vaginal delivery and the alternative of a delivery by cesarean section?” (emphasis added)—invaded the province of the jury because it assumed that a reasonable patient under these circumstances would want to know about the alternative treatment of delivery by cesarean section. After a second trial on the informed consent claim, the jury found in favor of MMIC Insurance, Inc., Kathryn J. Kostic, M.D., and Advanced Healthcare, Inc. (collectively, Kostic). On appeal, the Krebsbachs challenge the circuit court’s decision to overturn the first jury’s verdict. We reject the Krebsbachs’ challenge and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Richard L. Keller

Case No.: 2016AP500-CR

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

Focus: Fourth Amendment

The State appeals the finding that the search of Richard L. Keller’s computer was a police search rather than a probationary search. As the search was administered and executed for probation purposes at the request of and on behalf of the probation agent and as the Division of Criminal Investigation (DCI) analyst was not independently conducting a police investigation or search, we reverse.

Recommended for publication

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WI Court of Appeals – District IV

Case Name: James Jordan et al v. Jolene Willie

Case No.: 2015AP2636

Officials: Lundsten, Sherman, and Blanchard, JJ

Focus: Court Error – Relevancy – Sufficiency of Evidence

James and Donna Jordan appeal a judgment dismissing their complaint alleging statutory misrepresentation in connection with the sale of a parcel of farm land by Jolene Wille. Dismissal was based on jury verdicts finding that, while Wille made a misrepresentation that her real estate

broker, Beverly Anderson, then repeated to the Jordans, no damages resulted to the Jordans from the misrepresentation. The alleged misrepresentation involved how many acres of the transferred parcel were “tillable.” The Jordans make the following arguments: (1) the circuit court erroneously exercised its discretion at trial by overruling a relevancy objection to the admission of evidence offered by Wille, consisting of a state agency’s definition of the word “tillable;” (2) the court erred in denying a pretrial motion to dismiss the third-party complaint that Wille filed against Anderson; and (3) there was insufficient evidence to support the verdict that the Jordans did not suffer monetary loss as a result of their reliance on the alleged misrepresentation regarding the number of tillable acres. We affirm the judgment for reasons discussed below

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WI Court of Appeals – District IV

Case Name: Dodge County v. J.T.

Case No.: 2016AP613

Officials: Kloppenburg, j.

Focus: Ch. 51 Commitment

J.T. appeals his involuntary commitment order under WIS. STAT. § 51.20. J.T. argues that there was insufficient evidence to support the circuit court’s finding that he was dangerous to others within the meaning of WIS. STAT. § 51.20(1)(a)2.b.  I reject his argument and affirm.

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