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Weekly Case Digests — June 2 to June 9, 2017

By: Rick Benedict//June 9, 2017//

Weekly Case Digests — June 2 to June 9, 2017

By: Rick Benedict//June 9, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Ayiko L. Paulette

Case No.: 16-1099

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

Focus: Sentencing

Ayiko Paulette helped found the Waverly Crips street gang in East St. Louis, Illinois, during the late 1980s and early 1990s. By 2012 he and the gang were trafficking large amounts of drugs in the area. Before his luck ran out in 2014, Paulette was leading the gang and managing its drug trade. He even controlled the sale of illegal drugs in nearby Washington Park, Illinois, and had many people working for him. Things unraveled, though, after Paulette sold 105 grams of cocaine to an informant during two con‐ trolled buys in May 2014. Two months later, authorities were waiting when Paulette and eight travel companions got off a train in St. Louis. They were returning from a supply run to Texas. Seven of them were carrying a total of 2.4 kilograms of cocaine in packages concealed under their clothing. Paulette eventually pled guilty to eight counts related to drug trafficking and was sentenced to a total of 300 months in prison. He appeals that sentence, focusing on the count charging him with conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 846 and 841(a)(1). Paulette disputes the scope of the conspiracy and argues that the district court, in calculating his imprisonment range under the Sentencing Guidelines, wrongly counted certain years of drug dealing as relevant conduct under U.S.S.G. § 1B1.3. We affirm his sentence

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Mohamed Fadiga

Case No.: 16-3870

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

Focus: 4th Amendment

A jury found Mohamed Fadiga guilty of possessing more than 15 unauthorized “access devices”—gift cards that had been fraudulently reencoded—and a judge sentenced him to 30 months’ imprisonment. See 18 U.S.C. §1029(a)(3). He contends that police learned about the crime by violating the Fourth Amendment and that the jury pool was the result of racial discrimination A police officer stopped a car that had an expired license plate. He asked Mamadu Barry, the driver, for registration papers, which he did not have; Barry also professed not to know who owned the car or where he was driving to. So the officer asked Fadiga, who was in the passenger’s seat. Fadiga replied that “a friend” owned the car and produced, not a registration document, but a rental agreement. The car’s return was past due under that agreement, which did not authorize either Barry or Fadiga to drive the car. When Fadiga opened his wallet to extract his driver’s license, the officer saw oodles of plastic cards in lieu of money. Now suspicious, he asked Barry and Fadiga for permission to search the car; both consented. The search turned up a bag full of gift cards, and the officer asked his dispatcher to send someone with a card reader to determine whether the cards were legitimate. About half an hour later the card reader arrived and detected that the cards had been tampered with. Fadiga’s motion to suppress the evidence rests on the delay between the officer’s call and the card reader’s arrival. Rodriguez v. United States, 135 S. Ct. 1609 (2015), holds that police violate the Fourth Amendment by extending a traffic stop to allow time for a drug-detection dog to arrive, unless reasonable suspicion justifies an investigation. District Judge Lozano concluded that the unless clause of Rodriguez has been satisfied: the police reasonably suspected that the car’s occupants possessed doctored gift cards. 2015 U.S. Dist. LEXIS 91006 (N.D. Ind. July 14, 2015). Later the case was transferred to Judge Simon, who agreed with Judge Lozano and denied a motion for reconsideration. 2016 U.S. Dist. LEXIS 65316 (N.D. Ind. May 18, 2016).

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jesus Sanchez-Lopez

Case No.: 16-3872

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

Focus: Sentencing – Court Error

Jesus Sanchez-Lopez pleaded guilty to unauthorized presence in the United States after removal, see 8 U.S.C. § 1326(a), and was sentenced to twenty-four months’ imprisonment—a term ninety days above the properly calculated guidelines range. Mr. Sanchez-Lopez contends that the district court erred when, in an effort to deter future illegal reentry by Mr. Sanchez-Lopez, it deviated from the Guidelines and sentenced him to a lengthier term than the sentence he had served the last time he was convicted of the same offense. Because the district court thoroughly explained its reasons and acted well within its discretion, we affirm the sentence.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Valentin R. Sanchez

Case No.: 2015AP1753-CR

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

Focus: Court Error – Motion for Mistrial

Valentin Sanchez appeals a judgment convicting him of three counts of first-degree sexual assault of a child under the age of twelve. Sanchez first argues the circuit court violated his right to present a defense and erroneously exercised its discretion by denying his motion to admit

evidence of the child-victim’s alternative basis for her knowledge of the type of sexual contact alleged in the complaint. Second, he contends the court again erroneously exercised its discretion in denying his motion for a mistrial when one of his witnesses testified on cross-examination that Sanchez was incarcerated prior to trial. Finally, Sanchez asserts he is entitled to a new trial in the interests of justice. We conclude the circuit court properly exercised its discretion with regard to the first two issues and a new trial in the interest of justice is not warranted. We therefore affirm the judgment

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WI Court of Appeals – District III

Case Name: Voters With Facts, et al v. City of Eau Claire, et al

Case No.: 2015AP1858

Officials: Hruz, Seidl and Reilly, JJ.

Focus: Declaratory Judgment

In this tax incremental financing (TIF) dispute, Voters with Facts, four limited liability companies, and fourteen individual plaintiffs (collectively, “Voters”) appeal a dismissal on the pleadings granted in favor of the City of Eau Claire (the “City”) and the City of Eau Claire Joint Review Board (the “Review Board”). Voters sought a judgment declaring unlawful and void two resolutions that amended and created Tax Incremental Districts (TID) Nos. 8 and 10, respectively. The circuit court dismissed these claims for a variety of reasons, including that Voters lacked standing and that Voters’ constitutional challenges were precluded by Sigma Tau Gamma Fraternity House Corp. v. City of Menomonie, 93 Wis. 2d 392, 288 N.W.2d 85 (1980).

We agree with the circuit court that Voters lacks taxpayer standing to seek a declaratory judgment that Eau Claire acted unlawfully, either under its statutory authority or from a constitutional standpoint, in amending TID No. 8 and creating TID No. 10. Voters’ complaint demonstrates Eau Claire made the required statutory findings when taking those actions, and the complaint therefore fails to allege noncompliance with any statutory directives. Meanwhile, Voters’ fear that City payments to a developer might be improperly diverted to reimburse the developer for the demolition of historic buildings is based on speculation, and that claim therefore fails to allege a concrete harm. Finally, Voters’ complaint fails to sufficiently allege a violation of the Wisconsin Constitution, on the basis of either uniformity clause principles or the public purpose doctrine. Because Voters’ complaint fails to adequately allege Eau Claire acted “unlawfully” in any way, Voters lacks taxpayer standing to challenge the relevant municipal acts

through a declaratory judgment action. We therefore affirm the dismissal of Voters’ declaratory judgment claims.

Recommended for publication
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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Karl O.D. Blatterman

Case No.: 2015AP2386-CR

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

Focus: Reasonable Suspicion

Karl Blatterman appeals a judgment of conviction for fifth-offense operating a motor vehicle while intoxicated (OWI). Blatterman challenges the reasonableness of the traffic stop. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. James M. Clark, Sr.

Case No.: 2015AP2488-CR

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

Focus: Ineffective Assistance of Counsel

A jury convicted James Clark, Sr. of second degree sexual assault of a child. The circuit court denied Clark’s postconviction motion seeking a new trial due to ineffective assistance of trial counsel. The circuit court concluded that trial counsel’s performance was neither deficient nor prejudicial. We affirm

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WI Court of Appeals – District III

Case Name: Jason L. Edmonson v. Michelle Dewitt, et al

Case No.: 2015AP2609

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

Focus: Motion to Reopen – Summary Judgment

Jason Edmonson, pro se, appeals an order denying reconsideration of a motion to reopen a summary judgment granted in favor of Michelle and Darren DeWitt, DeWitt Enterprises Inc., and DeWitt Investments LLC (collectively “the DeWitts”). We affirm. We also find the present appeal frivolous and remand for further proceedings. In addition, we warn Edmonson that further frivolous filings may result in sanctions, including the limiting of future filings

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WI Court of Appeals – District III

Case Name: James R. Hartwig et al v. American Family Mutual Insurance Company

Case No.: 2016AP58

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

Focus: Insurance Coverage

American Family Mutual Insurance Company appeals a judgment entered in this insurance coverage dispute arising from a single-car automobile accident in which James Hartwig was injured while a passenger in the vehicle. The vehicle was owned by Derek Elliott, was being driven by Andrew Juza, and was insured by American Family. There were two claims at issue, both of which were resolved by summary judgment: (1) liability coverage; and (2) underinsured motorist (UIM) coverage. In addition, the circuit court also made evidentiary rulings in anticipation of a trial that was ultimately not held. We conclude the circuit court erred by granting summary judgment on Hartwig’s claim for liability coverage because there is a genuine issue of material fact regarding whether the vehicle’s owner placed a restriction on the driver’s use of the vehicle, which restriction was being violated at the time of the accident. We also conclude the circuit court erred by placing the burden upon American Family to prove that Juza was not using the vehicle for a permitted purpose at the time of the accident. Next, we conclude the circuit court erred by sua sponte granting summary judgment in Hartwig’s favor on his claim for UIM benefits without sufficient notice to American Family or opportunity for discovery on that claim. Finally, we affirm the circuit court’s evidentiary ruling excluding evidence of Juza’s and Hartwig’s respective levels of intoxication at the time of the accident.

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WI Court of Appeals – District I

Case Name: Melvin Shelton v. Wisconsin Department of Corrections

Case No.: 2016AP220

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

Focus: Faulty Appeal – Multiple Procedural Errors

Melvin Shelton, pro se, appeals an order dismissing his lawsuit against the Wisconsin Department of Corrections. Because the record does not include a transcript of the circuit court proceedings, because Shelton’s appellate brief fails to comply with the rules of appellate procedure, and because his claims are barred, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v James O. Tucker

Case No.: 2016AP542-CR

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

Focus: Plea Withdrawal

James O. Tucker appeals from a judgment of conviction and an order denying his motion for postconviction relief. He contends that the circuit court erred in denying his motion to withdraw his guilty plea and suppress evidence. We reject Tucker’s argument and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. David Earl Harris, Jr.

Case No.: 2016AP548-CR

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

Focus: Ineffective Assistance of Counsel

The State of Wisconsin appeals an order of the circuit court granting David Earl Harris a new trial. The circuit court granted Harris a new trial on the basis of ineffective assistance of counsel. Because the circuit court correctly determined that counsel provided ineffective assistance, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. George Edward Reed

Case No.: 2016AP1008

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

Focus: Motion for New Trial

George Edward Reed appeals an order of the circuit court denying his postconviction motion for either a new trial or an evidentiary hearing. We affirm

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WI Court of Appeals – District II

Case Name: Society Insurance, IDF, LLC, et al v. City of West Bend, et al

Case No.: 2016AP1106

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Negiglience

In this sewer backup case, Society Insurance, IDF, LLC, and Affiliated Clinical Services, Inc., appeal from an order dismissing their claims against the City of West Bend and League of Wisconsin Municipalities Mutual Insurance. For the reasons that follow, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Paul A. Adams

Case No.: 2016AP1149

Officials: Reilly, P.J.

Focus: Objection to Fines

Paul A. Adams, pro se, appeals from the circuit court’s denial of Adams’ motion objecting to court assessed fines and forfeitures in Waukesha County circuit court case Nos. 2004CM940, 2007CT2518, 2008TR9102, and 2013TR5557. Adams alleges errors in the amounts owed. We agree with the circuit court’s conclusion that Adams is not entitled to relief, and we affirm

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WI Court of Appeals – District III

Case Name: Larry Wittmann v. Consolidated Lumber Co., et al

Case No.: 2016AP1228

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

Focus: Denial of Disability Benefits

Larry Wittmann appeals a circuit court order affirming a Labor and Industry Review Commission (LIRC) decision denying his claim for temporary total disability benefits under WIS. STAT. § 102.43 (2015-16). Wittmann argues the LIRC erroneously determined his “healing period” had ended prior to the time he claims to have suffered a wage loss. We disagree and conclude the LIRC’s findings were based upon credible and substantial evidence. Accordingly, we affirm the order.

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WI Court of Appeals – District II

Case Name: Richard E. Reilly et al v. Mark Leonid Milshteyn

Case No.: 2016AP1567

Officials: Gundrum, J.

Focus: Divorce

Richard E. Reilly and Scribner Cohen and Company appeal from an order holding them in contempt of a judgment of divorce and sanctioning them pursuant to WIS. STAT. § 785.01(1)(b). The circuit court concluded both Reilly and Scribner violated the judgment and ordered them to “return to [Eleonora Milshteyn’s] estate” an amount of $310,554.97. Reilly and Scribner argue the court erroneously exercised its discretion in entering the order. We agree in part

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Sara Ann Ponfil

Case No.: 2016AP2059-CR

Officials: Hruz, J.

Focus: Motion to Suppress

Sara Ann Ponfil appeals a judgment of conviction for possession of cocaine. She argues the circuit court erred in denying her motion to suppress evidence on the basis that law enforcement lacked reasonable suspicion to detain her. We disagree, concluding Ponfil’s constitutional rights were not violated. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Kelly Lynn Jackson v. Trent Perrotta Jackson

Case No.: 2015AP561

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

Focus: Divorce – Child Placement

Kelly Jackson appeals pro se the final placement order in a series of post-divorce decisions on custodial decision-making, placement, and support that were issued after her ex-husband, Trent Jackson, moved to modify the parties’ physical placement schedule and reduce his child support obligation and Kelly filed several cross-motions relating to custodial decision-making, placement, and support. The final placement order also resolved several pending contempt matters that had arisen during the proceedings. We affirm all of the challenged decisions for the reasons discussed below.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael S. Thompson-Jones

Case No.: 2016AP361-CR

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

Focus: Ineffective Assistance of Counsel

At a jury trial Michael Thompson-Jones was convicted of battery, disorderly conduct, and second-degree sexual assault—use or threat of force or violence. He appeals the judgment of conviction and the order denying his motion for post-conviction relief, based primarily on arguments that: (1) his trial counsel provided ineffective assistance in failing to request a jury instruction for the lesser-included offense of third-degree sexual assault; (2) trial counsel was ineffective in making inadequate use of a written statement that the alleged victim gave police; and (3) the evidence was insufficient to prove that he used or threatened force or violence to have nonconsensual sexual intercourse with the victim. We reject each argument and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Javin Devon Wilson

Case No.: 2016AP843-CR

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

Focus: Ineffective Assistance of Counsel

A jury found Javin Wilson guilty of charges related to the stabbing of TS. At trial, Wilson’s defense was that he was not involved in the stabbing, and, more specifically, that he was wearing black clothing at the time of the stabbing and a man who was then wearing red clothing stabbed TS. After the jury returned a guilty verdict, Wilson filed a postconviction motion alleging that his trial counsel provided ineffective assistance for failing to present evidence that the man who wore red clothing and who stabbed TS was Nathan Harden. After an evidentiary hearing, the circuit court denied Wilson’s motion. Wilson renews his ineffective assistance of counsel argument on appeal. We reject Wilson’s argument and affirm

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