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Weekly Case Digests — Nov. 6-Nov. 10, 2017

By: WISCONSIN LAW JOURNAL STAFF//November 10, 2017//

Weekly Case Digests — Nov. 6-Nov. 10, 2017

By: WISCONSIN LAW JOURNAL STAFF//November 10, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Federal National Mortgage Association, et al., v. City of Chicago, et, al.

Case No.: 16-4140

Officials: MANION and KANNE, Circuit Judges, and MILLER, District Judge.*

Focus: Tax Exemption – Real Estate

In 2013, this court held that state and local taxing authorities could not charge the Federal National Mortgage Association, Federal Home Loan Mortgage Corporation, or Federal Housing Finance Agency with real estate transfer taxes, because such taxes are preempted by federal laws exempting these entities from all taxation. We must now determine whether the federal statutory exemptions apply when the transfer tax is charged to a private buyer who purchases real estate from one of the exempt federal entities. The district court concluded that, because the imposition of a transfer tax impacts the price the federal entities can charge for real property, the tax is unconstitutional regardless of who is required to pay it. Because this conclusion is contrary to the plain language of the tax exemption provisions, the judgment of the district court is reversed.

Reserved and Dissolved

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7th Circuit Court of Appeals

Case Name: Charles Smith v. Paul Anderson

Case No.: 16-2333

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

Focus:  Fourth Amendment Violation – Parole Violation Report

Charles Smith, a registered sex offender, was convicted of driving with a revoked license and sentenced to one year’s imprisonment followed by one year’s mandatory supervised release. To begin his supervised re‐ leased—often called parole—Smith needed the Illinois Department of Corrections to approve a host site. On his release date Smith submitted two host sites. At that time, the Department had not investigated or approved the proposed sites. A parole supervisor therefore ordered Smith’s parole officer, Paul Anderson, to issue a parole violation report rather than release Smith.

Anderson’s parole violation report contained incorrect statements. Principally, the report claimed that electronic monitoring was a condition of Smith’s supervised release. It also noted that the Department had attempted to place Smith at a host site that would allow him to comply with the electronic monitoring requirement. Neither statement was accurate. Smith spent another six months in custody before the Department released him on good‐time credit. He sued his parole officer, Paul Anderson, under 42 U.S.C. § 1983 for an alleged violation of the Fourth Amendment. The district court granted Anderson’s motion for summary judgment.  We affirm.

On Smith’s release date, the Department had not approved his host site. Instead of releasing Smith, Anderson submitted a parole violation report. The report contained errors. But be‐ cause no court has held that the Fourth Amendment requires prisons to release sex offenders who lack lawful and approved places to live, Anderson’s incorrect statements—even if baseless—cannot form the basis of liability under section 1983

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Leon Fadden

Case No.: 17-1400

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

Focus: Court Error – Jury Instructions

A grand jury returned a three-count indictment against Leon Fadden for conduct related to bankruptcy fraud. Before trial, Fadden proposed a theory-of-defense jury instruction for Counts 1 and 2. The district court rejected that instruction, instead reciting the Seventh Circuit Pattern Instructions. A jury convicted Fadden of all three counts. Fadden now appeals his convictions on Counts 1 and 2, arguing that the district court denied him a fair trial by refusing to read the jury his theory-of-defense instructions. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Wanda Shorter

Case No.: 16-2053

Officials: WOOD, Chief Judge, FLAUM, Circuit Judge, and CONLEY, District Judge

Focus: Sufficiency of Evidence

In 2014, following investigations by the Indiana Attorney General and FBI, a grand jury issued a four-count indictment for Medicaid fraud against defendants Wanda Shorter and her company, Empowerment Non-Emergency Medical Transport, Inc. (“Empowerment”). Specifically, Shorter and Empowerment were charged with one count of health care fraud in violation of 18 U.S.C. § 1347, and three counts of misusing a means of identification in violation of 18 U.S.C. § 1028A. After a petit jury found her guilty on all four counts, Shorter filed this direct appeal, challenging the indictment, the admission of certain evidence at trial and the sufficiency of the evidence as a whole. For the reasons that follow, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Craig Armstrong v. James Krupiczowicz, et al.,

Case No.: 17-1621

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

Focus: Motion for Post Judgment Relief Denied

Craig Armstrong appeals the denial of his motion for post-judgment relief in this lawsuit alleging that he was wrongfully arrested and prosecuted for violating the Illinois Sex Offender Registration Act. The district court, which dismissed Armstrong’s original and amended complaints before service, concluded that relief under Federal Rule of Civil Procedure 59(e) was time-barred and that Armstrong did not raise valid grounds for relief under Rule 60(b). We disagree, as the district court’s analysis of Armstrong’s request for the assistance of counsel—as reiterated in his post-judgment motion—was flawed. Thus we vacate and remand for further proceedings.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Thomas R. Socha v. Reed A. Richardson

Case No.: 16-2540

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

Focus: Brady Violation

Socha would like us to find that the state prosecutor in his case violated the obligation recognized in Brady v. Maryland, 373 U.S. 83 (1963), to disclose potentially exculpatory evidence to him. But even though the prosecutor indeed withheld potentially impeaching evidence from Socha, the state courts concluded that there was no reasonable probability that this evidence would have changed the verdict. Because this conclusion was not so outlandish as to be unreasonable, we must affirm the decision of the district court refusing to issue the writ. See 28 U.S.C. § 2254(d).

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. David Johnson, et al.

Case No.: 15-3830; 16-1471

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

Focus: Sufficiency of Evidence and Jury Instructions

On appeal, Walton and Johnson challenge the sufficiency of the evidence, arguing that the government failed to prove that either Walton or Johnson had the requisite intent for a fraud conviction. We find the government provided substantial evidence that Walton and Johnson had specific intent, including evidence of kickbacks and making false statements. Walton and Johnson also challenge their money laundering convictions, but there was sufficient evidence to support those convictions as well.

Walton also challenges the district court’s jury instructions, arguing that the court’s instruction on 10 U.S.C. § 666 permitted the jury to convict him of accepting a gratuity and not a bribe, and that § 666 should only permit conviction for bribes. We find no clear error in the § 666 instruction. The court’s instruction and record evidence made clear that Walton was convicted for accepting bribes, not gratuities, and we decline Walton’s invitation to overturn precedent to reconsider the construction of § 666. Johnson and Walton’s assertion that the district court erred by failing to provide a good faith instruction is also incorrect. Their convictions required proof of their bad intent (specific intent to commit fraud), so a good faith jury instruction was unnecessary.

Finally, Walton and Johnson challenge their sentences. Both were subject to a sentencing enhancement because their offenses involved a public official in a high-level decision making position (Walton). We find this enhancement was proper, because as the manager of the Land Bank, Walton was in a sensitive position. We also find no error in the district court’s decision to enhance Walton and Johnson’s sentences because they victimized vulnerable families.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Gary Lee Wayerski

Case No.: 2015AP1083-CR

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

Focus: Motion for Change of Venue Denied and Brady Violation

A jury found Gary Wayerski guilty of sixteen felony offenses based on allegations that, over a several-month span, Wayerski had repeated sexual contact with two teenage boys and exposed them to pornography at his residence. Wayerski raises six issues in this appeal from a judgment entered on the verdicts and from an order denying his postconviction motion.

He argues: (1) the circuit court erroneously denied his motion for a change of venue or selection of the jury from another county; (2) the court erroneously admitted “other acts” evidence consisting of pornographic materials in Wayerski’s possession; (3) he received ineffective assistance of counsel when his attorney failed to ask Wayerski during his testimony about statements he made to a State’s witness and failed to seek a mistrial in response to admission of the pornographic materials; (4) the State committed a Brady violation by not disclosing a State witness’s pending criminal charges; (5) the evidence was insufficient to convict him of eight counts of sexual assault by a person who works or volunteers with children, contrary to WIS. STAT. § 948.095(3) (2015-16), because persons in his then occupation (police officer) are not within the scope of the statute; and (6) he is entitled to a new trial in the interests of justice.

We conclude: the circuit court properly exercised its discretion in denying the change of venue and venire motion and in admitting the challenged pornographic evidence; Wayerski failed to demonstrate his trial attorney’s assistance prejudiced his defense on the surrebuttal testimony or was deficient on the motion for a mistrial; there was no Brady violation because it was not “an intolerable burden on the defense” to search CCAP for the State witness’s available pending criminal charges, see State v. Randall, 197 Wis. 2d 29, 38, 539 N.W.2d 708 (Ct. App. 1995); the evidence at trial was sufficient for a jury to conclude that Wayerski—as a police officer or, in the alternative, as a volunteer who worked with the victims—satisfied all eight counts charged under WIS. STAT. § 948.095(3); and finally, Wayerski fails to show the interests of justice require a new trial. We therefore affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. A.L.,

Case No.: 2016AP880

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

Focus: Statutory Interpretation

We granted the State’s petition for leave to appeal a nonfinal order of the trial court in which it denied the State’s request for a reevaluation of a juvenile’s competency in a suspended delinquency matter. The trial court determined that WIS. STAT. § 938.30(5)(d) did not permit such reevaluation; instead, the trial court concluded that a juvenile delinquency petition remains suspended in cases where, as here, the juvenile was found incompetent and unlikely to regain competency within the statutory time frame.

Upon review, we find that WIS. STAT. § 938.30(5)(d) is ambiguous. In our interpretation of the statute, we find that the legislature did not intend for the trial court to lose competency over the suspended juvenile proceedings under these circumstances. Consequently, we find no inferred requirement that the suspended petition be dismissed with prejudice, as suggested by A.L.

In the following opinion, we address the narrow issue of whether WIS. STAT. § 938.30(5)(d) permits the possibility of re-evaluation of competence. We conclude that the statute does permit re-evaluation under the circumstances described in this case. We therefore reverse and remand this matter to the trial court for further proceedings consistent with this decision.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Thomas Bart Kropp

Case No.: 2016AP1200-CR

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

Focus: Ineffective Assistance of Counsel

Thomas Bart Kropp appeals the judgment of conviction, entered upon a jury verdict, of aggravated battery, contrary to WIS. STAT. § 940.19(5) (2015-16). He also appeals from the order denying his postconviction motion for a new trial based on claims of ineffective assistance of counsel. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Eric L. Moore

Case No.: 2016AP1292-CR

Officials: BRENNAN, P.J.

Focus: Sufficiency of Evidence

Eric L. Moore was convicted by a jury of two counts of battery and two counts of disorderly conduct, all as a repeater.  He now appeals, arguing that he is entitled to a new trial for two reasons. First, he argues that the trial court erred in admitting an audio recording of a 911 call made by a child to request help when Moore was violently assaulting A.J. Second, he argues that he received ineffective assistance of counsel when counsel strategically, and with Moore’s agreement, opted not to offer the following evidence: (1) A.J.’s reports to police that Moore had injured her, (2) her statement recanting, and, (3) the fact that she received a citation for obstructing justice. Third, he further argues that, as to two of the counts, the evidence that he was the person who committed the crime is insufficient to sustain the jury’s verdict and that the convictions must be vacated. We reject Moore’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Micah Nathaniel Reno

Case No.: 2016AP1371-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

The State of Wisconsin appeals an order of the circuit court, which vacated Micah Nathanial Reno’s judgment of conviction and granted him a new trial on the basis of ineffective assistance of counsel. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Shawn L. Paholke

Case No.: 2016AP1504-CR

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

Focus: Motion for Plea Withdrawal Denied

Shawn Paholke appeals a judgment of conviction and an order denying his motion to withdraw his no-contest pleas prior to sentencing. Paholke contends the circuit court erred by denying his motion. We conclude the circuit court did not erroneously exercise its discretion when it determined Paholke did not provide a fair and just reason for plea withdrawal. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Cornelius Boyd, Jr.,

Case No.: 2016AP1565-CR

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

Focus: Motion for Plea Withdrawal Denied

Cornelius Boyd, Jr., appeals the judgment convicting him of first-degree sexual assault (sexual contact with a child under the age of thirteen). See WIS. STAT. § 948.02(1)(e) (2013-14). He also appeals the order denying his postconviction motion seeking plea withdrawal.  The sole issue on appeal is whether the circuit court erred in denying Boyd’s postconviction Bangert motion without an evidentiary hearing. See also State v. Brown, 2006 WI 100, ¶¶34-35, 293 Wis. 2d 594, 716 N.W.2d 906 (restating and supplementing the Bangert plea colloquy outline). We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kevin Dewayne Elliott

Case No.: 2016AP1677-CR

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

Focus: Motion for Plea Withdrawal Denied

Kevin Elliott appeals a judgment, entered upon his guilty pleas, convicting him of first-degree reckless injury with use of a dangerous weapon and two counts of armed robbery. Elliott also appeals the order denying his motion for postconviction relief. Elliott argues the circuit court erred by denying his postconviction motion for plea withdrawal without a hearing. We reject Elliott’s arguments and affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Alexander Goodenough

Case No.: 2016AP2050-CR

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

Focus: Sentencing Guidelines

Alexander Goodenough appeals a judgment of conviction, entered upon a jury’s verdict, for first-degree intentional homicide while using a dangerous weapon. Goodenough also appeals from an order denying his motion for postconviction relief. Goodenough argues that he is entitled to a new trial because his right to confrontation was violated because expert testimony regarding the victim’s cause of death was provided by a doctor who did not perform the autopsy.

Alternatively, Goodenough asserts that he is entitled to resentencing because during the sentencing hearing the trial court questioned Goodenough about his family’s efforts to assist him with his drug abuse problems; Goodenough alleges that his reply was compelled self-incrimination, which the trial court then improperly relied upon for sentencing. We affirm.

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WI Court of Appeals – District III

Case Name: Kenneth E. Garves v. Empire Fire and Marine Insurance Co.,

Case No.: 2016AP2341

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

Focus: Maladministration of Estate – Personal Representative

Laura Rapp and Empire Fire and Marine Insurance Company appeal a summary judgment requiring payment on a personal representative’s bond based on Rapp’s failure to fulfill her duties as personal representative of the Estate of Laurence Berg. We conclude the undisputed facts show that Rapp failed to comply with the probate court’s orders and otherwise committed maladministration while acting as personal representative. We therefore affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Eric D. Colbert

Case No.: 2015AP1880-CR

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

Focus: Equal Protection Violation – Expungement of Conviction

Eric D. Colbert appeals from an order of the circuit court denying expungement of his conviction for manufacture or delivery of THC. He claims that the denial of expungement violates equal protection and due process. Colbert’s chief arguments were resolved by our supreme court’s decision in State v. Ozuna, 2017 WI 64, 376 Wis. 2d 1, 898 N.W.2d 20, and Colbert fails to properly develop any additional arguments. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Shawn T. Wiskerchen

Case No.: 2016AP1541-CR

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

Focus: Court Error – Restitution

Shawn T. Wiskerchen appeals from the restitution component of a judgment convicting him of burglary. Wiskerchen contends the court erred in ordering $8487.41 in restitution for losses not caused by a crime considered at sentencing. We conclude that under the reasoning set forth in State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, there was a causal nexus between the victim’s missing items and Wiskerchen’s final burglary of her home. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Samuel S. Upthegrove

Case No.: 2016AP2035-CR

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

Focus: Postconviction Motion Denied

Samuel Upthegrove was convicted after a jury trial of armed robbery, second-degree recklessly endangering safety, and two counts of felony bail jumping, all as a repeater. He now appeals the judgment of conviction and the order denying his motion for postconviction relief. As we agree that he was denied his constitutional and statutory right to be present throughout the guilt phase of his trial, we reverse and remand for a new trial.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Travis D. Williams

Case No.: 2016AP2253-CR

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

Focus: Court Error – Double Jeopardy

After a traffic stop in Kenosha County, Travis D. Williams tried to elude law enforcement officers by leading them on an eighteen-mile, high-speed chase that ended in Racine County. He was charged first in Racine County and then in Kenosha County with attempting to flee an officer as a repeater and was convicted on his no-contest and guilty pleas, respectively.  After his Kenosha County conviction, Williams filed a motion alleging that a second conviction for the single offense of fleeing an officer violated his right to be free of double jeopardy. The motion was denied.

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WI Court of Appeals – District II

Case Name: Robert E. Davies v. Eric T. Ula-Lisa

Case No.: 2017AP478

Officials: HAGEDORN, J.

Focus: Eviction – Default Judgment

Eric T. Ula-Lisa appeals from the circuit court’s decision affirming a default judgment of eviction against him. We affirm.

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