Weekly Case Digests — July 10 to July 14, 2017

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Ascaris Mayo, et al., v. United Health Care Insurance Company, et al.

Case No.: 2014AP2812

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

Focus: Constitutionality – Statutory Cap on Noneconomic Damages

This is an appeal stemming from a circuit court decision finding the $750,000 cap on noneconomic damages in medical practice actions, as articulated in WIS. STAT. § 893.55 (2015-16), unconstitutional as it applied to Ascaris and Antonio Mayo. This is also a cross-appeal of the circuit court’s finding that the statutory cap is not unconstitutional on its face. We conclude that the statutory cap on noneconomic damages is unconstitutional on its face because it violates the same principles our supreme court articulated in Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, by imposing an unfair and illogical burden only on catastrophically injured patients, thus denying them the equal protection of the laws. We conclude that because Wisconsin’s cap on noneconomic medical malpractice damages always reduces noneconomic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims, this cap denies equal protection to that class of malpractice victims whose adequate noneconomic damages a factfinder has determined are in excess of the cap. Because we conclude that the statutory cap is facially unconstitutional, we need not reach the question of whether the cap is unconstitutional as it applies to the Mayos and we do not disturb the circuit court’s findings as to that question. Because the effect of our decision still entitles the Mayos to their jury award, we affirm the circuit court, albeit on different grounds.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Eric Pevan

Case No.: 2016AP357-CR

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

Focus:  Sufficiency of Evidence

Eric Pevan appeals a judgment of conviction for one count of felony mistreatment of an animal, resulting in the animal’s death, as party to a crime. He argues the evidence presented at trial was insufficient to support his conviction. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Floyd C. Sauve

Case No.: 2016AP546-CR

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

Focus: Court Error – Sufficiency of Evidence and Sentencing

Floyd C. Sauve appeals a judgment of conviction entered after a jury found him guilty of using a computer to facilitate a child sex crime. He also appeals an order denying his motion for postconviction relief. He claims the trial evidence was insufficient to prove his guilt, the circuit court erroneously admitted evidence that he used a computer to communicate with children other than the victim in this case, and he received an excessive sentence. We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin ex rel. T. Michael Barrett v. Wisconsin Department of Safety and Professional Services, et al.

Case No.: 2016AP806

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

Focus: Constitutionality – Renewal of

1. Michael Barrett appeals from an order of the circuit court affirming a decision of the Real Estate Examining Board “denying his application for renewal of his real estate broker’s license after he was convicted of a felony.” Barrett alleges multiple constitutional violations. We affirm the circuit court.

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WI Court of Appeals – District II

Case Name: Todd D. O’Brien, et al. v. Walworth State Bank

Case No.: 2016AP858

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

Focus: Breach of Contract

Todd and Janice O’Brien appeal from a judgment dismissing their complaint against Walworth State Bank and awarding attorney’s fees and costs to Walworth State Bank pursuant to the terms of the parties’ loan documents. We affirm in all respects.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Eric Durran Howard

Case No.: 2016AP959-CR

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

Focus: Court Error – Motion to Suppress

Eric Durran Howard appeals a judgment of conviction for one count of possession of a firearm by a felon. Howard argues that the police illegally seized and subsequently frisked him. He also argues that his motion to suppress the gun evidence on which his conviction was based should have been granted. He argues that there was no probable cause or reasonable suspicion to detain him, and there was no particularized suspicion to justify a patdown.

In order to resolve the question of whether police had reasonable suspicion of criminal activity that justified the seizure and search of Howard, we need to know what police saw on the stoop and inside the house, and what they did with Howard and why. Because the trial court did not make clear its factual findings about what happened on the stoop and whom to believe, this court cannot reach the legal question of the lawfulness of the seizure and search of Howard. We reverse the judgment and remand for further proceedings in which the trial court is to make the findings of fact and articulate how the facts support a legal conclusion on the validity of this seizure and search.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. James D. Carter

Case No.: 2016AP1054

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

Focus: Court Error – Sufficiency of Evidence and Ineffective Assistance of Counsel

James D. Carter appeals the judgment convicting him of the following sixteen counts: (1) armed robbery with threat of force (count one); (2) possession of a firearm by a felon (counts two, four, and five); (3) burglary (count three); (4) forgery by possession with intent to utter (counts ten and eleven); (5) forgery by uttering (counts thirteen, fifteen, seventeen, and nineteen); (6) attempted theft by false representation (count twelve); and (7) theft by false representation (counts fourteen, sixteen, eighteen, and twenty).  He also appeals the postconviction court’s denial of his postconviction motion.

Carter contends that the trial court erred in three respects: (1) count three, the burglary charge, was improperly joined with the other counts; (2) count five, the felon in possession of the firearm charge involving the assault-style rifle (assault-style rifle charge), should have been severed from the other counts against him because it caused unfair prejudice; and (3) there was insufficient evidence to support the conviction on the assault-style rifle charge. He also maintains that trial counsel failed to provide effective assistance for two reasons: (1) the severance motion pertaining to the burglary charge did not challenge joinder of that count, which prevented Carter from testifying on that charge; and (2) trial counsel did not file any severance motion pertaining to the assault-style rifle charge. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jesse Steven Poehlman

Case No.: 2016AP1074-CR

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

Focus: Court Error – Ineffective Assistance of Counsel

Jesse Steven Poehlman appeals from a judgment of conviction, entered on a jury verdict, and an order denying his postconviction motion. The jury convicted Poehlman on five counts related to an incident in February 2015 in which he sexually assaulted, battered, strangled, and falsely imprisoned N., his pregnant wife, over a period of several hours. The jury acquitted him of charges of battery and sexual assault of N. in December 2014.

Poehlman raises two arguments on appeal. First he argues that trial counsel was ineffective when he failed to object to the trial testimony of N.’s coworker on the grounds that the State failed to disclose the witness and the police reports concerning her interview prior to trial. On this claim he argues that he has alleged sufficient facts to warrant an evidentiary hearing. Secondly, he argues that an affidavit of Daniel Neeley, obtained after conviction, constitutes newly discovered evidence that corroborates his testimony and warrants a new trial. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lavarray Johnikin

Case No.: 2016AP1164-CR

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

Focus: General Postconviction Motion for Relief

Lavarray Johnikin appeals a judgment of conviction, following a jury trial, of first-degree intentional homicide, attempted first-degree intentional homicide, two counts of armed robbery with the use of force, and false imprisonment, all as a party to a crime. He also appeals the order partially denying his postconviction motion for relief. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.G.

Case No.: 2016AP1197

Officials: BRASH, J.

Focus: Plea Withdrawal

M.G. appeals the order that terminated his parental rights to M.E.H.G. and denied his postdispositional motion after this matter was remanded to the trial court for an evidentiary hearing. He argues that he should be permitted to withdraw his no-contest plea because it was not knowingly, intelligently, and voluntarily made. He further argues that his right to counsel was violated. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marcus L. Pantoja

Case No.: 2016AP1289

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

Focus: Search Warrant – Lack of Probable Cause

Marcus L. Pantoja appeals the judgment convicting him of one count of possession of heroin with intent to deliver. On appeal, Pantoja contends that the affidavit in support of a search warrant for his residence at 1100 South 1st Street (1st Street) did not establish probable cause for the search, and did not establish reasonable suspicion for authorization of the no-knock entry. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: Christine Lindemann v. Geoffrey Maclay, Jr., et al.

Case No.: 2016AP1370

Officials: Kessler, Brash and Dugan, JJ.

Focus: Abuse of Discretion

Christine Lindemann appeals a judgment and order awarding attorney fees in favor of Edith and Geoffrey Maclay, Sr. (“Maclays”), Lindemann’s parents, along with Geoffrey Maclay, Jr. (“Rip”) (collectively, “the Maclays”), pertaining to the Trust of Rene von Schleinitz (“Trust”). This is the third time this Trust is before this court. On appeal, Lindemann argues that: (1) no contract or statute supports an award of attorney fees to the Maclays; (2) any fee award should have been limited to fees incurred through the hearing on dismissal; (3) any fee award should be paid by the Trust; and (4) the requested fees were not reasonable. The Maclays argue that Lindemann is barred by the doctrine of claim preclusion from collaterally attacking this court’s decision and that the amounts of fees that the trial court awarded are reasonable.

Because von Schleinitz Trust II is the law of this case and Lindemann did not move for reconsideration or appeal that decision, Lindeman could not collaterally attack our decision before the trial court and may not do so on this appeal. This court’s decision remanded this matter to the trial court “for a determination of the attorney fees due to the Maclays because of Lindemann’s unauthorized commencement and continuation of this proceeding.” See id., ¶39 (emphasis added). That decision is the law of this case and the trial court followed that directive. This court also finds that the trial court did not abuse its discretion in awarding the specific amounts for attorney fees. For these reasons we affirm the trial court’s order and judgment.

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WI Court of Appeals – District I

Case Name: Amalga Composites, Inc., v. Labor Industry Review Commission, et al.

Case No.: 2016AP1445

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

Focus: Court Error – Factual Findings

Amalga Composites, Inc. (“Amalga”) appeals from an order of the trial court affirming a decision of the Labor and Industry Review Commission (“LIRC”). LIRC affirmed the decision of the Administrative Law Judge (“ALJ”) who held that Nefri S. Gomez-Sandoval (“Gomez-Sandoval”) was entitled to back pay for Amalga’s unreasonable refusal to rehire her following a work-related injury. Gomez-Sandoval was released to full duty work on December 12, 2012. However, Amalga, her employer, did not return her to work until July 29, 2013. Gomez-Sandoval sought back wages for the period between December 12, 2012 and July 28, 2013, under WIS. STAT. § 102.35(3) (Worker’s Compensation unreasonable refusal to rehire).

This court concludes that, a factual finding must be made regarding whether Gomez-Sandoval is, in fact, an undocumented worker or whether LIRC cannot make such a factual finding based on Amalga’s failure to meet its burden of proof, prior to considering whether the Immigration Act bars Gomez- Sandoval’s claim under WIS. STAT. § 102.35(3). This court on review must give LIRC’s factual findings great deference. Therefore, this factual finding is required for our review. If Gomez-Sandoval is not an undocumented worker, then the Immigration Act does not apply in this case and the Immigration Act issues should not be addressed.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. S.D.

Case No.: 2016AP1701; 2016AP1702

Officials: Brennan, P.J.

Focus: Court Error – Ineffective Assistance of Counsel

S.D. appeals the order terminating her parental rights to two of her four children—Q.R.P., born April 18, 2007, and J.L.J., born April 8, 2009—and the order denying her post-disposition motion. She raises four arguments on appeal. First, she contends that the trial court erred in admitting the Parenting Capacity Assessment (“PCA”) report and testimony of the State’s expert, Dr. Michelle Iyamah, over trial counsel’s Daubert objection. Second, she claims her two trial counsel were ineffective in failing to obtain and present her own expert’s report to criticize Dr. Iyamah’s opinions and methods. Third, she argues that trial counsel were ineffective for failing to raise an “as-applied” due process challenge to the standard jury instruction for WIS JI—CHILDREN 346, Failure to Assume Parental Responsibility. And fourth, she contends that she is entitled to a new trial in the interest of justice because the real controversy was not tried under WIS. STAT. § 752.35. For the reasons that follow we reject her arguments and affirm the trial court orders terminating her parental rights and denying her post-disposition motion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Java I. Orr

Case No.: 2016AP2009

Officials: Dugan, J.

Focus: Plea Withdrawal

Java I. Orr appeals the judgment of conviction entered after he pled guilty to two counts of battery and one count of disorderly conduct. He also appeals the order denying his postconviction motion. On appeal, Orr contends that: (1) he should have been permitted to withdraw his guilty pleas on the ground that trial counsel provided incorrect information regarding sentence credit that induced Orr to plead guilty and thereby rendered ineffective assistance; (2) the amount of sentencing credit applied in the revocation cases is a new factor justifying modification of his sentence; and (3) he was sentenced based on inaccurate information regarding the amount of sentence credit and should have been resentenced. We disagree and, therefore, affirm the judgment and the denial of Orr’s postconviction motion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael J. Aschenbrenner

Case No.: 2015AP2630-CR

Officials: Lundsten, Sherman and Blanchard, JJ

Focus: Constitutionality

Michael Aschenbrenner appeals a judgment of conviction and an order denying his motion for postconviction relief. The issue is whether his constitutional right to a speedy trial was violated. We conclude that it was and, therefore, we reverse and remand with directions to dismiss the charges with prejudice.

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WI Supreme Court Digests

WI Supreme Court

Case Name: North Highland Inc., v. Jefferson Machine & Tool Inc., et al.

Case No.: 2017 WI 75

Focus: Sufficiency of Evidence

Petitioner, North Highland, Inc., seeks review of an unpublished per curiam opinion of the court of appeals affirming a circuit court grant of summary judgment in favor of Frederick A. Wells (“Wells”). The court of appeals determined that the circuit court properly entered summary judgment in favor of Wells. It concluded that North Highland failed to present evidence sufficient to support either its claim of conspiracy to breach a fiduciary duty or its claim of misappropriation of a trade secret. N. Highland Inc. v. Jefferson Mach. & Tool Inc., No. 2015AP643, unpublished slip op., ¶¶11, 26 (Wis. Ct. App. Apr. 28, 2016).

In this review of a grant of summary judgment, we examine the conspiracy and misappropriation claims through the lens of sufficiency of evidence. We determine that North Highland has not met its burden to show that there exists a genuine issue of material fact as to either claim. Consequently, due to insufficiency of evidence, both of North Highland’s claims fail to survive Well’s summary judgment motion. Accordingly, we affirm the decision of the court of appeals affirming the circuit court’s grant of summary judgment in favor of Frederick Wells.
Affirmed

Concur:

Dissent: R.G. Bradley, J., Kelly, J., Roggensack, C.J.

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WI Supreme Court

Case Name: State of Wisconsin v. Ernesto E. Lazo Villamil

Case No.: 2017 WI 74

Focus: Statutory Intepretation

This case examines issues that arise from statutory language that appears to make the offense of causing a death while knowingly operating a motor vehicle after revocation both a felony and a misdemeanor offense. Such an unusual scenario has generated both a petition and crosspetition for review of the court of appeals’ decision.

Petitioner, Ernesto Lazo Villamil (Villamil), seeks review of a court of appeals’ decision affirming a circuit court judgment of conviction and order denying his motion for postconviction relief. We agree with the court of appeals that Wis. Stat. § 343.44(2)(b) is mandatory and that the record at sentencing must demonstrate that the circuit court considered the factors enumerated in the statute. Accordingly, we affirm the court of appeals decision and remand to the circuit court for a new sentencing hearing because the record fails to demonstrate that the circuit court considered the required factors pursuant to Wis. Stat. § 343.44(2)(b).

Affirmed

Concur: Kelly, J., R.G. Bradley, J.

Dissent: Abrahamson, J.

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WI Supreme Court

Case Name: State of Wisconsin v. Navdeep S. Brar

Case No.: 2017 WI 73

Focus: Constitutionality – Suppression of Evidence

We review an unpublished decision of the court of appeals affirming the conviction of Navdeep Brar (Brar) for operating while intoxicated, third offense in violation of Wis. Stat. § 346.63(1)(a) (2014-15) and an order of the circuit court denying Brar’s motion to suppress the results of a blood test.  Brar moved to suppress the results of a blood test on the grounds that it was an unconstitutional search. Specifically, he argued that he did not consent to having his blood drawn, and therefore, the officer was required to obtain a warrant. The circuit court denied Brar’s motion and found that Brar had consented. On appeal, Brar argues that, even if he had consented, his consent was not given voluntarily.

We conclude that the circuit court’s finding that Brar consented to the blood draw was not clearly erroneous. Additionally, we conclude that Brar’s consent was voluntary. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur: R.G. Bradley, J., Kelly, J.,

Dissent: Abrahamson, J., A.W. Bradley, J.

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WI Supreme Court

Case Name: State of Wisconsin v. Kenneth M. Asboth, Jr.

Case No.: 2017 WI 76

Focus: Warrantless Seizure

Wisconsin courts have long applied a community caretaker exception to the warrant requirement under the Fourth Amendment to the United States Constitution. In this case, Kenneth M. Asboth, Jr., asks us to decide whether law enforcement officers’ warrantless seizure of his car was a reasonable exercise of a bona fide community caretaker function. He also asks us to determine whether Colorado v. Bertine, 479 U.S. 367 (1987), requires officers to follow “standard criteria” when conducting a community caretaker impoundment. We hold that Bertine does not mandate adherence to standard criteria, and because we further conclude that officers reasonably effected a community caretaker impoundment of Asboth’s car, we affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent: A.W. Bradley. J., Abrahamson, J.

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Mark Alan Ruppelt

Case No.: 2017 WI 80

Focus: Law License Suspension Length

This disciplinary matter comes to the court on Attorney Ruppelt’s appeal of a report and recommendation of Referee James J. Winiarski. The referee based his report on a stipulation between Attorney Ruppelt and the Office of Lawyer Regulation (OLR), in which Attorney Ruppelt admitted 16 counts of misconduct and agreed that his Wisconsin law license should be suspended for one year. In his report, the referee recommended a slightly longer suspension than what the parties had agreed upon: a 15-month suspension, rather than the parties’ stipulated one-year suspension. Through his appeal, Attorney Ruppelt challenges the referee’s 15-month suspension; he argues that it is excessive under our disciplinary case law, whereas the parties’ stipulated one-year suspension is the appropriate length. Attorney Ruppelt also criticizes certain characterizations and findings by the referee, and proposes that this court should adopt a policy by which the court would give deference to parties’ disciplinary stipulations.

After reviewing this matter and considering Attorney Ruppelt’s appeal, we accept the referee’s factual findings and legal conclusions based on the parties’ stipulation. We agree with the referee’s recommendation that a 15-month suspension is appropriate, despite Attorney Ruppelt’s arguments to the contrary. We also reject Attorney Ruppelt’s remaining arguments. Finally, we remand this matter to the referee for supplemental proceedings on the issue of restitution.

Remanded

Concur: Abrahamson, J.

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Adam M. Blackman

Case No.: 2017 WI 77

Focus: Suppression of Evidence

This is a review of a published decision of the court of appeals reversing a decision of the Circuit Court for Fond du Lac County, Gary R. Sharpe, Judge. The circuit court granted Adam M. Blackman’s motion to suppress the results of a blood test obtained under Wisconsin’s implied consent law, Wis. Stat. § 343.305(3)(ar)2. (2013-14). The court of appeals reversed the order of the circuit court. The issue presented is whether the consequences for refusing to submit to a blood test requested under Wis. Stat. § 343.305(3)(ar)2. were misrepresented to Blackman and, if so, whether that misrepresentation rendered Blackman’s consent to the blood draw coerced, that is, not freely and voluntarily given under the Fourth Amendment.  Furthermore, if the court concludes that Blackman’s consent to the blood draw was not voluntary consent under the Fourth Amendment, the issue becomes whether the court should apply the good faith exception to the exclusionary rule and admit the evidence of the blood alcohol concentration from the blood draw. For the reasons set forth, we reverse the decision of the court of appeals, affirm the suppression order of the circuit court, and decline to apply the good faith exception to the exclusionary rule in the instant case.

For the reasons set forth, we conclude that the State did not prove by clear and convincing evidence that Blackman’s consent to the blood draw was valid, that is, that it was freely and voluntarily given under the Fourth Amendment. Because the exclusionary rule’s deterrent effect will be served in instant case by suppressing evidence of Blackman’s blood test, we decline to apply the good faith exception to the exclusionary rule. The results of Blackman’s blood draw are therefore suppressed. Accordingly, the cause is remanded to the circuit court to reinstate its order suppressing the evidence and for further proceedings not inconsistent with the decision of this court.

Reversed and remanded

Concur: Ziegler, J., Gableman, J.

Dissent: Roggensack, C.J.

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WI Supreme Court

Case Name: State of Wisconsin v. Lewis O. Floyd, Jr.

Case No.: 2017 WI 78

Focus: Ineffective Assistance of Counsel and Inadmissible Evidence

A law enforcement officer discovered a cache of controlled substances when he performed a warrantless——but allegedly consensual——search of Lewis O. Floyd, Jr. during a traffic stop. Mr. Floyd says that because the officer extended the traffic stop without the necessary reasonable suspicion, his alleged “consent” was void and the evidence obtained from the search should have been suppressed. Mr. Floyd also says he received ineffective assistance of counsel at the suppression hearing because his trial counsel failed to present testimony Mr. Floyd believes would have established he was not asked to consent to a search.

Affirmed

Concur:

Dissent: A.W. Bradley, J., Abrahamson, J.

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WI Supreme Court

Case Name:  Vincent Milewski, et al., v. Town of Dover, et al.

Case No.: 2017 WI 79

Focus: Constitutionality – Assessor’s Inspection

Vincent Milewski and Morganne MacDonald (collectively, the “Milewskis”) own a home in the Town of Dover. They want to challenge a tax assessor’s recent revaluation of their property. But they also want to prevent the tax assessor from inspecting the interior of their home as a part of that process. The Town says our statutes require them to pick one or the other because they cannot do both. The Milewskis ask us whether the Town can put them to this choice.

Reversed and remanded

Concur: Roggensack, C.J., Ziegler, J., Gableman, J.

Dissent: Abrahamson, J., A.W. Bradley, J.

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Leon Dingle, Jr., et al.

Case No.: 15-3871 & 16-1002

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

Focus: Court Error – Sentencing

The State of Illinois, through its Department of Public Health, furnishes funds to a variety of organizations that provide health services. Included among those grantees were the Broadcast Ministers Alliance of Chicago (“Broadcast Ministers”), Access Wellness and Racial Equity (“AWARE”), and Medical Health Association (“MHA”). Collectively these three organizations received  more than $11 million from the Department between 2004 and 2010. Unbeknownst to the Department, however, some $4.5 million of those dollars flowed through the grantees to a company called Advance Health, Social & Educational Associates (“Advance”), which was owned and controlled by Leon and Karin Dingle. That might have been fine, but for the fact that most of those monies did not go to the stated purposes of the grants. Instead, the Dingles spent the diverted funds on personal luxuries, such as yachts and vacation homes. The government eventually caught up with them and indicted them on charges of mail fraud and money laundering. A jury convicted them, and they have now appealed from both their convictions and their sentences. We find no reversible error for either defendant, and so we affirm the judgments of the district court.

Both defendants have appealed. Leon presents three arguments for our consideration: (1) the jury instructions violated his Fifth Amendment rights, because they allegedly made acquittal only optional upon a finding of reasonable doubt; (2) the district court abused its discretion under Federal Rule of Evidence 403 when it permitted the admission of evidence of Leon’s marital infidelity; and (3) the sentence imposed on Leon was procedurally and substantively unreasonable. Karin raises two points: (1) the evidence was insufficient to support her convictions; and (2) her sentence was unreasonable because the loss amount overstated the seriousness of her conduct. We address Leon’s appeal first, and then turn to Karin’s.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Octavia Mitchell v. City of Chicago, et al.

Case No.: 14-2957

Officials: ROVNER and WILLIAMS, Circuit Judges, and CONLEY, District Judge.

Focus: Court Error – Exclusion of Evidence

On April 24, 2010, Chicago Police Officers pulled over eighteen year old Izael Jackson (“Jack- son”) for a missing front license plate. He was shot three times in the back by the officers and died the next day. Jackson’s mother, Octavia Mitchell (“Mitchell”), brought a civil suit for excessive force and wrongful death against the City of Chicago and the officers for the officers’ traffic stop turned homicide. After months of discovery the case went to trial. The jury returned a verdict in favor of the defendants and the district court entered its judgment.

On appeal, Mitchell argues that the trial court erred by excluding evidence or argument relating to a failure to test DNA swabs recovered from the scene of the shooting. But we find no error in the district court’s evidentiary rulings. The only issue before the jury was whether the officers were justified in shooting Jackson. A lack of DNA evidence, without more, would not tend to prove or disprove the officers’ justification. As the district court noted, there was nothing tying the shooting officers to any missing DNA evidence and it would be unfair to assume that testing of the DNA swabs would have helped, or harmed, Mitchell’s case. Therefore, we affirm the district court’s rulings which quashed Mitchell’s subpoena to the Illinois State Police and excluded evidence relating to potential DNA evidence

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Rafi Sayyed

Case No.: 16-2858

Officials: BAUER and WILLIAMS, Circuit Judges, and DEGUILIO, District Judge

Focus: Court Error – Garnishment Order

Rafi Sayyed was ordered to pay $940,000 in mandatory restitution to the American Hospital Association after pleading guilty to mail fraud. The United States sought to collect part of the restitution with approximately $327,000 contained in Sayyed’s retirement accounts. The district court granted the government’s motion for turnover orders. On appeal, Sayyed maintains that the district court erred in failing to find that his retirement funds qualify as “earnings” subject to the 25% garnishment cap under the Consumer Credit Protection Act. We disagree. Because the garnishment cap only protects periodic distributions pursuant to a retirement program and the government may reach Sayyed’s present interest in his retirement funds, the district court properly granted the government’s turnover motion.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jason Perry

Case No.: 16-1635

Officials: BAUER and KANNE, Circuit Judges, and FEINERMAN, District Judge.

Focus: Court Error – Sentence Modification

Jason Perry pleaded guilty to two counts under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm and ammunition. The district court sentenced him to 360 months’ imprisonment upon finding that three of his prior felonies, including two burglary convictions under Indiana law, qualified as “violent felonies” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Perry argues on appeal that the enhancement was improper because Indiana burglary is not an ACCA predicate offense. He also contends that the two felon in possession counts are duplicative and should have been merged at sentencing. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Unite Here Local 1 v. Hyatt Corporation dba as Hyatt Regency Chicago

Case No.: 15-3668

Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges.

Focus: Court Error – Judgment through Arbitration

Defendant Hyatt Corporation, doing business as Hyatt Regency Chicago (“Hyatt” or the “hotel”), appeals the district court’s entry of judgment on the pleadings in favor of plaintiff Unite Here Local 1 (“Local 1″), confirming the decisions of two arbitrators in Local 1’s favor. Unite Here, Local 1 v. Hyatt Corp., 2015 WL 7077329 (N.D. Ill. Nov. 13, 2015). Hyatt contends that the matter is either moot or does not present an appropriate case for confirmation of the awards, and that the district court’s decision to confirm the awards needlessly interjects the court into an ongoing set of disputes between itself and Local 1 that should be resolved by way of further arbitration. We disagree and affirm the judgment. The district court’s modest action in confirming the awards places the court’s contempt power behind the prospective relief ordered by the arbitrators, while reserving the merits of any pending or future grievances for arbitration. Indeed, Local 1 has conceded that any contempt petition would be based solely on the outcome of arbitrations post-dating the district court’s confirmation order. Consequently, we are not convinced that the court’s decision to confirm the two awards in any way undermines the parties’ agreement to resolve their disputes through arbitration. We therefore affirm the district court’s decision.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. William J. Mabie

Case No.: 15-1899 & 16-2432

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

Focus: Court Error – Improperly Admitted Evidence

This consolidated appeal involves two criminal cases from the Southern District of Illinois. In the first case—which we call the “threat case,” numbered 15-1899 on appeal—William Mabie was convicted of sending threatening letters through the mail. In the second case— which we call the “assault case,” numbered 16-2432 on appeal—Mabie was convicted of assaulting a deputy United States marshal. Mabie received lengthy prison terms in both cases.

Mabie brings multiple challenges on appeal. Specifically, he contends that, in the threat case, the district court improperly admitted evidence under Federal Rule of Evidence 404(b). He also argues that, in the assault case, the district court erred by refusing to allow him to proceed pro se and by forcing him to attend trial after he had waived his right to be present in the courtroom. Finally, he claims that he received unreasonable sentences in both cases. We reject these arguments and affirm Mabie’s convictions and sentences.

Affirmed

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