Weekly Case Digests — August 14 to August 18, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Aaron Schreiber

Case No.: 16-3847

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

Focus: Abuse of Discretion – Failure to Hold Evidentiary Hearing

In April 2011, the police arrested Aaron Schreiber for robbing a liquor store in Summit, Illinois. After a state grand jury indicted him for the liquor store robbery, a DNA buccal swab was taken from Mr. Schreiber. That DNA sample later linked him to a 2010 bank robbery, and federal authorities then charged him with that crime. Prior to his federal bank robbery trial, Mr. Schreiber moved to suppress the DNA evidence. He contended that the state authorities had lacked probable cause to arrest him for the 2011 liquor store robbery and that the buccal swab was the fruit of that illegal arrest. The district court denied the motion to exclude the evidence, and Mr. Schreiber was convicted of bank robbery.

Mr. Schreiber now appeals that conviction and argues that the district court erred in admitting the DNA evidence and, at the very least, erred in failing to hold an evidentiary hearing on his motion to suppress. We now conclude that the district court correctly held that police may take a buccal swab after an arrest supported by probable cause and that a grand jury’s issuance of an indictment is conclusive on the question of probable cause. Moreover, because Mr. Schreiber did not come forward with any disputed material facts, the district court did not abuse its discretion in refusing to conduct an evidentiary hearing.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Pine Top Receivables of Illinois, LLC v. Banco De Seguros Del Estado

Case No.: 16-3499

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

Focus: Validity of Contract and Statue of Limitations

Pine Top tells us that this statute allows the liquidator to ignore the treaties, wait until the end of the liquidation, and then submit one bill netting multi-decade balances across multiple treaties. The district judge was not persuaded, and neither are we. The statute does not provide that a liquidator may wait until the very end to net the firm’s debits and credits. All it tells us is that balances must be netted and only the net paid.

Pine Top offers a second contention: that the 2008 bill was an “account stated.” In Illinois, as in most other jurisdictions, the parties to a contract may resolve differences about who owes how much to whom and pick a definitive number. This kind of agreement establishes a new contract and starts its own period of limitations. Judges call agreement on a bottom line an “account stated.” According to Pine Top, when Banco did not respond promptly to the 2008 statement, that was as good as an agreement and permitted a suit any time within the next ten years.

Banco protests that it did not receive the statement until 2010 and blames problems in international mail. No matter. Failure to respond to a proposal differs from acceptance. It takes an offer and acceptance to form a contract—and the judiciary in Illinois tells us that an account stated is a kind of contract. See, e.g., Toth v. Mansell, 207 Ill. App. 3d 665, 671– 72 (1990); Allied Wire Products, Inc. v. Marketing Techniques, Inc., 99 Ill. App. 3d 29, 39–40 (1981). The liquidator made a proposal, Banco did not accept, a contract was not formed, and the “account stated” claim fails. The district court was right to dismiss this suit as untimely.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Deandre Anderson

Case No.: 16-3134

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

Focus: Court Error – Order of Restitution

Deandre Anderson, who pleaded guilty to armed bank robbery, challenges an order of restitution. He contends that the district court compelled him to pay an extra $2,107—the value of stolen currency recovered by police minutes after the robbery and held by the government ever since. We agree with Anderson that the restitution award is overstated, and we remand for a determination of the correct amount.

Vacated and Remanded as to restitution award

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Coscia

Case No.: 16-3017

Officials: RIPPLE, MANION, and ROVNER, Circuit Judges

Focus: Sufficiency of Evidence and Jury Instructions

This case involves allegations of spoofing and commodities fraud in this new trading environment. The Government alleged that Michael Coscia commissioned and utilized a computer program designed to place small and large orders simultaneously on opposite sides of the commodities market in order to create illusory supply and demand and, consequently, to induce artificial market movement.   Mr. Coscia was charged with violating the anti‐spoofing provision of the Commodity Exchange Act, 7 U.S.C. §§ 6c(a)(5)(C) and 13(a)(2), and with commodities fraud, 18 U.S.C. § 1348(1). He was convicted by a jury and later sentenced to thirty‐six months’ imprisonment

Mr. Coscia now appeals. He submits that the anti‐spoofing statute is void for vagueness and, in any event, that the evidence on that count did not support conviction. With respect to the commodities fraud violations, he submits that the Government produced insufficient evidence and that the trial court applied an incorrect materiality standard. Finally, he contends that the district court erred in adjudicating his sentence by adding a fourteen‐point loss enhancement.

We cannot accept these submissions. The anti‐spoofing provision provides clear notice and does not allow for arbitrary enforcement. Consequently, it is not unconstitutionally vague. Moreover, Mr. Coscia’s spoofing conviction is supported by sufficient evidence. With respect to the commodities fraud violation, there was more than sufficient evidence to support the jury’s verdict, and the district court was on solid ground with respect to its instruction to the jury on materiality. Finally, the district court did not err in applying the fourteen‐point loss enhancement.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Stacy Lee Harden, Jr.

Case No.: 16-1227

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

Focus: Sentencing Guidelines

Stacy Lee Harden, Jr., pled guilty to possessing with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to the mandatory minimum imposed by the statute of 10 years’ imprisonment and 5 years’ supervised release. In imposing that sentence, the court rejected Harden’s argument that the “safety valve” provision in 18 U.S.C. § 3553(f) applied to him, which would allow the court to impose a sentence beneath the mandatory minimums. Harden now appeals that determination to this court.

Harden filed an earlier appeal in this case, and we granted his request to vacate his guilty plea as improperly taken by a magistrate judge. United States v. Harden, 758 F.3d 886 (7th Cir. 2014). On remand, he again entered a guilty plea, but without a plea agreement. With a total offense level of 29 and criminal history category I, and a reduction for acceptance of responsibility, the Guidelines range was 87–108 months but with a statutory minimum of 10 years which the district court imposed. Harden raises only one challenge to his sentence—that the court erred in determining that he was not eligible for the “safety valve” in § 3553(f).

Here, the district court did not err in holding that Harden’s action constituted acts of violence or the threat of violence. Accordingly, the district court did not err in holding that the safety valve was inapplicable.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Peregrine Financial Group, Inc., et al. v. Ira Bodenstein, et al.

Case No.: 16-3424; 16-3425

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

Focus: Bankruptcy Consolidation Action

This is a consolidated appeal from judgments entered by the bankruptcy court and affirmed by the district court, in favor of the defendant Ira Bodenstein, the Chapter 7 trustee of the estate of Peregrine Financial Group (“Peregrine”). On appeal, the plaintiffs in this consolidated action challenge the decisions of the bankruptcy court and the district court.  The Secured Leverage plaintiffs assert that: their funds were held in a resulting trust and therefore were not included in the bankruptcy estate; the forex and spot metal contracts constituted commodity contracts under the similar contracts clause, 11 U.S.C. § 761(4)(F)(i); and the bankruptcy court erred in precluding the expert testimony of Martin Doyle.  The Miller plaintiffs allege: that the courts erred in holding that the Miller plaintiffs’ claim was untimely and did not constitute an amended claim; and that a constructive trust is a proper remedy.

In a thorough and well‐reasoned opinion, the district court properly resolved all of those challenges, and nothing that is argued in the briefs to this court leads us to disagree with the district court’s analysis.  Because we agree with the reasoning and conclusions of the district court as to all of the issues raised on appeal, we hereby adopt the district court’s opinion set forth at Secure Leverage Grp., Inc. v. Bodenstein, 558 B.R. 226, 231 (N.D. Ill. 2016) as our own in this appeal, a copy of which is attached hereto.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Terrance S. McKinney v. Office of the Sheriff of Whitley County

Case No.: 16-4131

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

Focus: Sufficiency of Evidence

In 2013 the Sheriff of Whitley County, Indiana hired the County’s first black police officer ever, Terrance McKinney. Nine months later, McKinney was fired. He sued for race discrimination. The district court granted summary judgment for the Office of the Sheriff, and McKinney has appealed.

We reverse. Viewed in the light most favorable to plaintiff McKinney, his extensive evidence adds up to a strong case of race discrimination. As we explain in detail, the defendant has offered an ever-growing list of rationales for firing McKinney that fall apart in the face of his evidence. The Sheriff’s termination letter provided three reasons for his discharge. Four days later, the Whitley County Board of Commissioners sent McKinney another letter that added two more reasons. After McKinney brought suit, the defense added three more reasons. Yet patch after patch, the defense arguments for summary judgment still will not hold water. McKinney presented evidence that he was treated differently than his similarly situated colleagues who are not black. He also presented substantial evidence that the many rationales offered for firing him were baseless and pretextual. In addition, the district court erred by disregarding most of McKinney’s evidence, improperly discounting his testimony as “self-serving,” and misreading our precedent on the “common actor” inference that is sometimes argued in discrimination cases. We remand for trial.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: BT Bourbonnais Care, LLC, et al. v. Felicia F. Norwood, Director, Illinois Department of Healthcare and Family Services

Case No.: 16-3655; 16-3968

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

Focus: Eleventh Amendment – Medicare Statue Violation

The plaintiffs contend that their rates were not properly adjusted after a change in ownership of the nursing homes they run. Before that issue can be resolved, however, there are two significant hurdles plaintiffs must clear: first, they must show that they have a private right of action for a violation of the relevant part of the Medicaid statute, 42 U.S.C. § 1396a(a)(13)(A); and, second, they must show that the Eleventh Amendment does not categorically bar this case from going forward.

The principal question before us has been whether the Operators have an enforceable procedural right to the public process outlined in section 1396a(a)(13)(A). We conclude that they do, and that the Eleventh Amendment does not bar this case to the extent that it seeks prospective, procedural relief. Many questions remain for the district court to resolve, including whether this particular complaint states a claim upon which relief can be granted, whether the Director is entitled to partial summary judgment on identified parts of the case whether because of the Eleventh Amendment or for other reasons, and doubtless many others.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mary Haley, et al. v. Fireman’s Fund Insurance Co.,

Case No.: 16-3563; 16-3648

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

Focus: Duty to Defend and Reasonable Defense Fees

In 2014, Mary Haley and others filed a putative class action against Kolbe & Kolbe Millwork Company, claiming that windows purchased from Kolbe were defective and had allowed air and water to leak into (and damage) the plaintiffs’ homes. Kolbe tendered the defense of the defective‐product claims to several insurance companies, and two of them—United States Fire Insurance Company and Fireman’s Fund Insurance Company—sought and obtained permission to intervene in the case. United States Fire later filed a motion for summary judgment, arguing that a recent decision of the Wisconsin Supreme Court, Wisconsin Pharmacal Co., LLC v. Nebraska Cultures of California, Inc., 876 N.W.2d 72 (Wis. 2016), absolved the insurers of their duty to defend Kolbe in the underlying suit. The district court granted United States Fire’s motion (and sua sponte awarded judgment to Fireman’s Fund)—a decision that Kolbe now appeals. United States Fire appeals the court’s decision not to require Kolbe to reimburse that insurer for any post‐Pharmacal defense fees, and asks that we remand the case for a determination of whether all pre‐Pharmacal defense fees were reasonable. We reverse the judgment that the insurance companies had no duty to defend, but otherwise affirm the decisions of the district court.

Reversed and Remanded in part and Affirmed in part

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7^th Circuit Court of Appeals

Case Name: Christopher Richardson v. Kathy Griffin, Superintendent Miami Correctional Facility

Case No.: 16-1700

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

Focus: Court Error – Confrontation Clause Violation

The Sixth Amendment to the U.S. Constitution gives a criminal defendant the right “to be confronted with the witnesses against him”; that right applies to both federal and state prosecutions. Crawford v. Washington, 541 U.S. 36, 42 (2004) (citing Pointer v. Texas, 380 U.S. 400, 406 (1965)). In this case, Christopher Richardson contends that Indiana’s courts violated his Confrontation Clause rights when they permitted the use at his trial of testimonial, out-of-court statements of witnesses who fingered him as the shooter. We appreciate how narrow the path to collateral relief is for state prisoners. We nonetheless conclude that Richardson has shown that Indiana’s courts unreasonably applied the Supreme Court’s Confrontation Clause cases. We therefore reverse the decision of the district court denying relief under 28 U.S.C. § 2254.

This leaves us with the “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict” to which Ayala referred. Because the Confrontation Clause error affected only the trial, Richardson is not entitled to an unconditional writ of habeas corpus. Instead, we REVERSE the district court’s decision and ORDER that unless the state initiates proceedings to retry Richardson within 120 days, he is entitled to issuance of the writ.

Reversed and Ordered

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7^th Circuit Court of Appeals

Case Name: In the Matter of:  Al-Haroon B. Husain

Case No.: 15-3308; 16-1254

Officials: BAUER and EASTERBROOK, Circuit Judges, and DEGUILIO, District Judge. *

Focus: Attorney Contempt – Disbarment

Husain appealed both the disbarment and the contempt finding to the district court. It assigned both appeals to the court’s five‐member Executive Committee, which handles the court’s disciplinary proceedings. The Executive Committee affirmed the order disbarring Husain but dismissed the appeal from the order holding Husain in contempt. Unfortunately, the Executive Committee did not transfer the contempt appeal to a single judge. Yet 28 U.S.C. §158(a) entitles Husain to review by at least one district judge. We therefore remand the contempt appeal to the district court for assignment to, and decision by, a single judge. The disbarment issue, by contrast, is ready for decision by this court.

This appeal has been handled under seal. The briefs and the entire appellate record have been concealed from public view. Even the appellate docket has been sealed. The judgment disbarring Husain is affirmed. The Executive Committee’s order in the contempt appeal is vacated, and that aspect of the case is remanded for decision by a district judge

Vacated and Remanded in part and Affirmed in part

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7^th Circuit Court of Appeals

Case Name: George Bellevue v. Universal Health Services of Hartgrove, Inc.

Case No.: 15-3473

Officials: BAUER, EASTERBROOK, and HAMILTON, Circuit Judges

Focus:  Sufficiency of Evidence

Relator and plaintiff‐appellant George Bellevue filed a qui tam action under the False Claims Act (FCA), 31 U.S.C. § 3729 et seq., and its Illinois analog, the Illinois False Claims Act (IFCA), 740 Ill. Comp. Stat. 175/1 et seq., on behalf of the United States and the State of Illinois against defendant‐appellee Universal Health Services of Hartgrove, Incorporated (“Hartgrove”). Bellevue argues that Hartgrove violated the FCA under a number of theories, including false certification and fraudulent inducement. The district court granted Hartgrove’s motion to dismiss the complaint for failure to state a claim of fraud with particularity as required by Federal Rules of Civil Procedure 12(b)(6) and 9(b).

In that case, we found that because the plaintiff’s allegations were “substantially similar to” the publicly disclosed allegations, the plaintiff did not “materially add” to the public disclosure and could not be an original source. 815 F.3d at 283 (citation omitted). This conclusion applies with equal force here, and Bellevue has not provided a reason to diverge from it. Thus, we find that Bellevue is not an original source of the allegations, and his FCA and IFCA claims are precluded by the public‐disclosure bar. The allegations in this case fall within the public‐disclosure bar to the FCA, and, therefore, the district court properly dismissed the amended complaint with prejudice. The judgment of the district court is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ketan Patel v. Mahendra Wagha, et al.

Case No: 16-2905

Officials: POSNER, EASTERBROOK, and MANION, Circuit Judges

Focus: Subject-Matter Jurisdiction and Sufficiency of Evidence

A jury concluded that Wagha and Portfolio (collectively “the Dealers”) had broken their promise to invest the money conservatively, and its verdict awarded Patel $136,000 for breach of contract plus a further $64,000 for securities fraud, for a total of $200,000. The district court remitted the $64,000 award, ruling that Patel has not shown loss causation, but entered judgment on the $136,000 award. 2016 U.S. Dist. LEXIS 74983 (N.D. Ill. June 8, 2016). The Dealers have appealed; Patel has not.

The Dealers contend that, as soon as the district court resolved the only claim arising under federal law, it lost subject-matter jurisdiction and had to dismiss the state-law claim too. (The litigants are not of diverse citizenship.) That’s wrong. District judges can use the supplemental jurisdiction, 28 U.S.C. §1367, to resolve state-law claims even after all federal claims have been dismissed. The state and federal claims were tried together; it was entirely appropriate to enter judgment on the state-law claim under §1367.  On the merits of Patel’s contract claim, the Dealers’ principal argument is that the evidence used to show Patel’s investment goals is incompatible with the contracts he signed when opening his account.

That it should be necessary to hold a trial to find out what Patel said to Wagha surprises us. Broker-dealers routinely record these conversations, not only to ensure that they carry out clients’ wishes but also to protect themselves in the event recollections diverge. Portfolio Diversification Group did not record these exchanges, however, so the only way to resolve the disagreement was to put the matter to a jury, which found in Patel’s favor. The judgment is supported by ample evidence and therefore is affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Keith E. Chambers v. United States of America

Case No: 16-2977

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

Focus: Abuse of Discretion

On appeal Chambers argues that Judge Myerscough was wrong to think that she lacked authority to grant his Rule 60(b) motion. He says the judge could have granted relief based on the new and unforeseeable circumstances beyond his control. The government counters that we have already considered—and rejected—the issue of Noll’s abandonment of Chambers in denying his motion to recall the mandate and his § 2244(b) application.

The government is correct. Judge Myerscough did not abuse her discretion in declining to reach the merits of the Rule 60(b) motion. The judge properly recognized that although she has discretion to grant relief under Rule 60(b) in many circumstances, she has no authority to order this court to reopen Chambers’s appeal. Chambers contends that the judge could have simply vacated the judgment, thereby resetting the clock and providing him a fresh appeal, following the example in Williams v. Hatcher, 890 F.2d 993, 995–96 (7th Cir. 1989). But Williams is different because it dealt with an error committed in the district court—the failure to file a timely notice of appeal. Indeed, all of the cases Chambers cites involved errors either committed or properly remedied in the district court. See Maples v. Thomas, 132 S. Ct. 912, 927 (2012) (failure to appeal); Ramirez, 799 F.3d at 849 (same); LSLJ P’ship v. Frito-Lay, Inc., 920 F.2d 476, 478 (7th Cir. 1990) (subsequent change in law). He has not pointed to any case giving the district court authority to remedy complications occurring in the appellate court, nor have we found one.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Heather Studer v. Katherine Shaw Bethea Hospital

Case No: 16-3728

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

Focus: Wage Payment & Collection Act

Katherine Shaw Bethea Hospital is a not‐for‐profit healthcare provider in Dixon, Illinois. Heather Studer worked at the hospital as an occupational therapist until she resigned. After she resigned, she filed a small‐claims complaint in Illinois state court, alleging that the hospital violated certain provisions of the Illinois Wage Payment and Collection Act (“IWPCA”) by failing to pay her money that she had accrued under the hospital’s Paid Days Leave policy. The hospital removed the suit to federal court, claiming that Studer’s claim was completely preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”).

But instead of filing an amended complaint, Studer filed a Rule 59(e) motion to alter or amend the judgment, again arguing that ERISA did not preempt her claim. The district court denied that motion, and this appeal followed. On appeal, Studer again contends that her IWPCA claim was not preempted by ERISA. Because we agree with the district court, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: George W. Mathias v. Michael M. Mihm

Case No: 16-3808

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

Focus: Writ of Mandamus – Venue

This mandamus petition raises a question of first impression in this circuit: Does ERISA’s venue provision, 29 U.S.C. § 1132(e)(2), preclude enforcement of a forum-selection clause in an employee-benefits plan? George Mathias, the plan beneficiary and mandamus petitioner here, argues that it does; the Secretary of Labor, as amicus curiae, supports that interpretation. The respondent health plans argue that § 1132(e)(2) is permissive only and does not invalidate a forum-selection clause contained in plan documents.

Only one circuit has addressed this question. The Sixth Circuit has held that an ERISA plan’s forum-selection clause is enforceable even if it overrides the beneficiary’s choice of a venue permitted by § 1132(e)(2). Smith v. Aegon Cos. Pension Plan, 769 F.3d 922, 931–34 (6th Cir. 2014), cert. denied, No. 14-1168 (Jan. 11, 2016). The court reasoned that because the statute is phrased in permissive terms—it states that a suit “may be brought” in one of several federal judicial districts—it does not preclude the parties from contractually channeling venue to a particular federal district. Id. at 932. We agree and join the Sixth Circuit in holding that ERISA’s venue provision does not invalidate a forum-selection clause contained in plan documents.

Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ronald Johnson

Case No: 16-3595

Officials: BAUER, FLAUM, and KANNE, Circuit Judges

Focus: Motion to Suppress Evidence Denied

Defendant Ronald Johnson entered a conditional guilty plea to one count of possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1), reserving the right to appeal the denials of his motions to suppress the evidence found in his condominium. Johnson now challenges those denials. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Frances Gecker, et al. v. Estate of Kevin Flynn

Case No: 16-1075; 16-1132; 16-1133; 16-1143; 16-1148; 16-1160; 16-1161; 16-1164; 16-1165; 16-1235

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

Focus: Fiduciary Liability

This case arises out of the Illinois Gaming Board’s decision to revoke Emerald Casino, Inc.’s gaming license. In an attempt to recover the value of the li‐ cense, the bankruptcy trustee sued the defendants—former Emerald officers, directors, and shareholders—for breach of contract and breach of their fiduciary duties.

This set of consolidated appeals concerns the district court’s decision on those claims.   Defendants Kevin Flynn, John McMahon, Kevin Larson, and Joseph McQuaid contest the court’s decision that their conduct caused the Board to revoke Emerald’s license. The defendants thus argue that the court could not have held them severally liable for the value of Emerald’s license.

The trustee contests the court’s decision that (1) defendant Peer Pedersen’s conduct did not cause the Board to revoke Emerald’s license, (2) the statute of limitations barred her breach‐of‐fiduciary‐duty claim, and (3) the defendants were severally liable instead of jointly and severally liable.   We reverse and remand the court’s decision to hold the defendants severally liable instead of jointly and severally li‐ able. But otherwise, we affirm.

Reversed and Remanded in part. Affirmed in part.

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WI Court of Appeals Digests

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Derek Asunto

Case No.: 2015AP50-CR

Officials: Kessler, Brash, and Dugan, JJ.

Focus: Plea Agreement

Derek Asunto appeals a non-final order of the circuit court denying his motion to enforce what he contends was an accepted plea agreement. Because the circuit court never actually accepted the plea agreement at issue, we affirm the circuit court.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Edward L. Fleming

Case No.: 2016AP839-CR

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

Focus: Court Error – Evidentiary Rulings

Edward Fleming appeals a judgment, entered upon a jury’s verdict, convicting him of first-degree sexual assault by sexual contact with a child under the age of thirteen and causing a child under age thirteen to listen to or view a sexual act. Fleming argues the circuit court erred by admitting other acts evidence and by excluding evidence that the victim had made prior untruthful allegations of sexual assault. Fleming alternatively claims he is entitled to a new trial in the interest of justice. Even if the circuit court erred with respect to these evidentiary rulings, the errors were harmless beyond a reasonable doubt. We also conclude a new trial in the interest of justice is not warranted. Therefore, we affirm the judgment.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. K.J., et al.

Case No.: 2016AP1501; 2016AP1502; 2017AP0720; 2017AP0721

Officials: KESSLER, J.

Focus: Termination of Parental Rights

On appeal, K.J. and A.W. argue that: (1) the circuit court erred when it denied the parents’ postdisposition motions without a hearing; (2) the circuit court had no competence to proceed with Diane’s second TPR because the underlying CHIPS order expired following the denial of the State’s first TPR petition; (3) issue preclusion applied to the second TPR trial and counsel was ineffective for failing to raise the issue; (4) the circuit court erroneously considered evidence relating to the abuse of Diane’s older brother; and (5) a finding of error causing reversal of Diane’s case would necessitate reversal of Andrew’s case pursuant to the doctrine of prejudicial spillover. We address each issue.

K.J. and A.W. appeal the orders terminating their parental rights to their children, Diane and Andrew. They also appeal the order denying their postdisposition motions. We affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jacalyn E. Mattingly

Case No.: 2016AP1910-CR

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

Focus: Ineffective Assistance of Counsel

Jacalyn Mattingly appeals a judgment of conviction for fifth-offense operating a motor vehicle while intoxicated (OWI) and an order denying her motion for postconviction relief. She contends her trial counsel was constitutionally ineffective. We conclude that even assuming counsel was deficient in the manners Mattingly contends, the State has shown that any error was harmless beyond a reasonable doubt and, therefore, she was not prejudiced by her counsel’s deficient performance. Accordingly, we affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kavin N. Nesbit

Case No.: 2016AP224-CR

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

Focus: Motion to Suppress Evidence Denied

This case concerns whether an officer’s frisk of a citizen was supported by reasonable suspicion. Kavin Nesbit and a friend were on I-94 in Kenosha County when they ran out of gas. With a red gas can in hand, they were walking along the shoulder of the expressway when State Trooper David Fowles activated his lights and pulled up behind them. Fowles later stated he pulled up out of concern for their safety and because walking along the highway is illegal.

Nesbit moved to suppress the fruits of the frisk on the grounds that it was not supported by reasonable suspicion. The circuit court denied the motion, and Nesbit pled guilty to the firearm possession count with the marijuana possession count dismissed as part of the agreement. We hold that under the unique circumstances of this case, the officer had reasonable suspicion that Nesbit was armed and dangerous. Therefore, we affirm Nesbit’s conviction.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Kim Hartshorne, et al. v. James Johnson, et al.

Case No.: 2016AP387

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

Focus: Attorney Fees

Cross-Appellants Eric Hurkman, Richard McGeehan, and Timothy Wrzesinski appeal the probate court’s denial of their individual requests for attorney fees and costs from the estate of Harold Hartshorne related to the real property date-of-death valuation the personal representatives used in the inventory, interim accounting, and federal real estate tax return filings for the estate.  The court rejected their requests because it concluded that although they had prevailed on the valuation issue, they did not do so in an “appealable contested matter” and thus it did not have authority under the relevant statutes to order such payments. Because we conclude that the matter on which Hurkman, McGeehan, and Wrzenski prevailed was an appealable contested matter, we reverse and remand for a determination of the appropriate amount of attorney fees and costs, if any, to be awarded to them.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Renaul E. Glover

Case No.: 2016AP2254-CR

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

Focus: Ineffective Assistance of Counsel

Renaul E. Glover appeals from a judgment of conviction and an order denying his motion for postconviction relief. Glover claims his trial counsel provided ineffective assistance of counsel by failing to move to suppress evidence obtained from an overly broad warrant, failing to move to suppress witness identifications, and failing to object to statements during the State’s closing arguments. We reject Glover’s arguments and affirm.

WI Court of Appeals – District IV

Case Name: Grayson Rosenthal, A Minor, et al. v. Jordan H. Christian, A Minor, et al.

Case No.: 2016AP444

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

Focus: Statutory Interpretation

Renata Brandenburg and her minor son Grayson Rosenthal appeal a summary judgment order that dismissed The Farmers Automobile Insurance Association (Farmers) from a personal injury lawsuit that Brandenburg and Grayson filed against Farmers and its insureds, Jayne Christian and her minor son Jordan Christian. The lawsuit was based upon allegations that Jordan injured Grayson by choking him with a wrestling move while the children were playing and that Christian provided negligent supervision over her son. We conclude that case law interpreting policy language substantially similar to that at issue here compels the determination that the Farmers policy did not provide coverage for Jordan’s conduct, because the chokehold constituted an intentional act. We further conclude that the policy at issue did not provide coverage for Christian’s conduct because her conduct was not an independent concurrent cause of Grayson’s injuries.

We apply the general summary judgment method of examining the parties’ opposing affidavits, depositions, and other materials in the light most favorable to the party opposing summary judgment to determine whether there are any material facts in dispute that would require trial. See WIS. STAT. § 802.08(3) (2015-16)2 (setting forth the standard for summary judgment) and State v. Dunn, 213 Wis. 2d 363, 368, 570 N.W.2d 614 (Ct. App. 1997) (discussing summary judgment methodology).