Weekly Case Digests — Mar. 19, – Mar. 23, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Angela Armenta

Case No.: 17-2296

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

Focus: Sentencing Guidelines

The government charged Angela Armenta with health care fraud, but at her trial it failed to ask any of its witnesses to identify her in court. Nevertheless, the jury convicted Armenta. At her sentencing, the district court increased Armenta’s Guidelines range by two levels after it concluded she had obstructed justice. It then sentenced her to a term of imprisonment well below that increased range. She appeals her conviction and sentence. Because the evidence of Armenta’s identity was sufficient to support her conviction and because the district court appropriately applied the obstruction of justice enhancement, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Tyrone Kirklin v. United States of America

Case No.: 17-1056

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

Focus: Ineffective Assistance of Counsel

For the second time we review Tyrone Kirklin’s conviction for aiding and abetting a robbery where his co‐conspirator brandished the guns he gave her. In Kirklin’s first appeal, we found that the district judge erred by making the brandishing finding rather than requiring a jury to make this determination. The district judge had acted in accord with controlling Supreme Court precedent at the time.

After oral argument in Kirklin’s first appeal, the Supreme Court overruled its controlling precedent and held that the brandishing determination must be made by a jury. Because that later case controlled, we found the judge had erred. Nevertheless, we affirmed Kirklin’s conviction and sentence because his attorney did not raise the issue in the district court, and we found the error was not a plain error requiring reversal despite the lack of objection. United States v. Kirklin, 727 F.3d 711 (7th Cir. 2013).

Under 28 U.S.C. § 2255, Kirklin now asserts that his attorney’s failure to object in the district court amounted to ineffective assistance of counsel in violation of the Sixth Amendment. We disagree. The constitutional standard for performance under the Sixth Amendment does not require a criminal defense attorney to anticipate that the Supreme Court is about to overrule its controlling precedent, at least not in these circumstances, before the Supreme Court had granted review in a case presenting the question whether to overrule the controlling precedent. We affirm the district court’s denial of Kirklin’s motion to vacate his conviction.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ryan Miller

Case No.: 16-1679

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

Focus: Sentence Modification

Defendant-appellant, Ryan Miller, entered into a written plea agreement with the government and pleaded guilty to mail fraud affecting a financial institution, in violation of 18 U.S.C. § 1341, and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Miller now appeals on the grounds that the indictment failed to specify proper means of identification; that the district court improperly applied two points to his criminal history calculation under U.S.S.G. § 4A1.1(d) for committing the charged crimes while under a criminal justice sentence; and that the district court improperly mandated participation in the inmate financial responsibility program (“IFRP”).

Miller’s plea agreement states, “[b]eginning no later than in or about July 2007, and continuing until on or about December 2009 … Miller knowingly devised, intended to devise, and participated in a scheme to defraud.” It is undisputed that Miller was in prison in 2008, which is encompassed by the time frame in his plea agreement. While Miller may not have been actively taking money from victims while in prison, we do not find this fact dispositive. During his time in prison, Miller maintained constructive possession of the fraudulently obtained credit cards, as well as the notebook containing the identifying information of the victims. He also maintained control over the fraudulently opened mailboxes, where credit card statements continued to be received during his incarceration. Thus, we find the district court did not plainly err in adding the two points under U.S.S.G. § 4A1.1(d).

Turning to the district court’s order mandating Miller’s participation in the IFRP, both parties agree that the district court improperly mandated Miller’s participation in the program. In United States v. Boyd, we found plain error for this same order. 608 F.3d 331, 334–35 (7th Cir. 2010). We addressed the error by modifying the sentence to clarify that participation in the IFRP was voluntary, without requiring remand. See Id. at 335. We find this appropriate here as well, and thus, order modification on appeal to reflect that Miller’s participation in IFRP is voluntary. For the foregoing reasons, we AFFIRM AS MODIFIED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Akeem Daniels, et al. v. FanDuel, Inc., et al.

Case No.: 17-3051

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

Focus: Statutory Interpretation

FanDuel and DraftKings conduct online fantasy‐sports games. A participant pays an entry fee and selects a roster, subject to a budget cap that prevents every entrant from picking only the best players. Results from real sports contests determine how each entrant’s squads did—so, for example, a touchdown on the field yields points for the fantasy teams that include the player. The participants whose fantasy squads do best win cash.

Plaintiffs maintain in this court that the district judge misunderstood the scope of these exemptions—indeed, erred even in asking what the exemptions mean. According to plaintiffs, FanDuel and DraftKings are illegal gambling enterprises to which none of the statutory exemptions applies. Defendants reply that their operations are lawful and that at all events none of the language in the right‐of‐ publicity statute makes anything turn on a question extrinsic to the right‐of‐publicity law itself.

Because plaintiffs’ claim arises under state law, we turned to Indiana’s judiciary to see what weight the state gives to the words we italicized above, whether Indiana views paid fantasy sports as unlawful gambling, and whether it treats illegality as material to the right‐of‐publicity statute. We found—nothing. As far as we can see, none of the language in either §32‐36‐1‐1 or §32‐36‐1‐8 has ever been interpreted by any state judge.

We therefore certify this question to the Supreme Court of Indiana, under Indiana Rule of Appellate Procedure 64: Whether online fantasy‐sports operators that condition entry on payment, and distribute cash prizes, need the consent of players whose names, pictures, and statistics are used in the contests, in advertising the contests, or both. We have phrased this question in general terms so that the Supreme Court of Indiana may consider any matters it deems relevant—not only the statutory text but also, for ex‐ ample, plaintiffs’ arguments about the legality of defendants’ fantasy games and the possibility that there is an extra‐ textual illegal‐activity exception to the provisions of Ind. Code §32‐36‐1‐1. The state judiciary should feel free to rephrase the question if it deems that step appropriate. We appreciate the possibility that the answer to the question we have framed may not end this case. Defendants say that the Constitution supersedes any right of publicity that Indiana may recognize. It would be inappropriate for us to decide that question, however, without knowing exactly what it is that state law provides. Otherwise we are at risk of issuing an advisory opinion. The Clerk of the Seventh Circuit will transmit to the Supreme Court of Indiana copies of the appellate briefs and record in this case.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Mario A. Rodriguez-Escalera

Case No.: 17-2334

Officials: WOOD, Chief Judge, HAMILTON, Circuit Judge, and BUCKLO, District Judge.

Focus: Motion to Suppress

Defendant-appellee Mario Rodriguez-Escalera (“Rodriguez”) and his fiancée Blanca Moran were arrested and charged with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841, after police discovered a large amount of methamphetamine and cash in Moran’s vehicle during a traffic stop. Before the district court, Rodriguez and Moran each moved on Fourth Amendment grounds to suppress the evidence obtained in the vehicle search. Concluding that the evidence was derived from an unlawfully extended traffic stop, the court granted both motions. On appeal, the government challenges the grant of Rodriguez’s motion to suppress. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Nicolas Rodriguez

Case No.: 17-2222

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

Focus: Plea & Sentencing – Sentencing Guidelines

Nicolas Rodriguez pled guilty to dealing firearms without a license and distributing cocaine. In his plea agreement, Rodriguez admitted to selling cocaine to an informant on one occasion and selling firearms to that informant on eight other occasions. The plea agreement also suggests that Rodriguez was aware that the guns he sold were being used to commit felonies. Indeed, Rodriguez admitted that he and the informant discussed the use of the weapons. For example, Rodriguez told the informant “You got 50 in the box. You better shoot them flakes.” (R. 62 at 5.) Rodriguez also asked if the informant’s “boys” had used a Tec-9 semi-automatic pistol that he had previously sold. (Id. at 5–6.) The informant responded that they had used it once. After those conversations, Rodriguez continued to sell the informant firearms.

At sentencing, the district court applied a four-level enhancement under U.S.S.G § 2K2.1(b)(5) for trafficking firearms (“trafficking enhancement”). And it applied an additional four-level enhancement under U.S.S.G § 2K2.1(b)(6)(B) for transferring a firearm with the knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense (“other-felony enhancement”). The enhancements produced a guideline range of 135 to 168 months. Ultimately, the district court imposed a below guidelines sentence of 108 months’ imprisonment. Rodriguez now appeals.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Richard D. Doermer v. Oxford Financial Group, LTD.,

Case No.: 17-1659

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

Focus: Trust Dispute  

Family disputes over who owns what are depressingly common—indeed, they are the stuff of the legal practice of many an estate lawyer. Richard Doermer and his sister, Kathryn Doermer Callen, are living examples of this phenomenon. The two siblings have spent the better part of the past decade embroiled in legal disputes about how to manage their family’s fortune. A little over a year ago, Richard and Kathryn appeared before this court after Richard sued his sister and his nephew on behalf of a family nonprofit foundation over which Richard sought greater control. Doermer v. Callen, 847 F.3d 522 (7th Cir. 2017). We affirmed the district court’s dismissal of that action because Richard lacked capacity to bring a derivative action under Indiana law.

Now Richard has returned. This time his suit is about the family trust, not the family foundation. And rather than suing his sister directly, Richard has targeted his sister’s financial advisor, Oxford Financial Group. He alleges that Oxford gave Kathryn negligent advice, which caused her to mismanage the trust. Richard further seeks to compel Kathryn to join the suit challenging her own financial decisions, by purporting to name her an “involuntary plaintiff” in the matter.

We need not wade into the dispute over the soundness of Oxford’s financial advice or Kathryn’s ultimate trust‐management decisions, because Richard, once again, lacks capacity to pursue this suit under state law and thus fails to state a claim on which relief can be granted.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Christopher A. Jansen

Case No.: 17-1005

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

Focus: Ineffective Assistance of Counsel – Restitution

Defendant Christopher Jansen pleaded guilty to one count of wire fraud and one count of tax evasion. He later sought to withdraw his guilty plea, arguing it was not “knowing and voluntary” because of ineffective assistance of counsel. The district court denied that motion, holding that Jansen’s counsel was not ineffective. We affirm. On the limited issue of restitution, we remand to allow the district court to clarify that its imposition of restitution is a condition of supervised release rather than a criminal penalty.

Affirmed in part. Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Caroline Guzman v. Brown County

Case No.: 16-3599

Officials: WOOD, Chief Judge, SYKES, Circuit Judge, and COLEMAN, District Judge.

Focus: FMLA and ADA Violation

Caroline Guzman, a former 911 dispatcher for Brown County, claims that Brown County interfered with her efforts to take leave under the Family Medical Leave Act, discriminated against her because she was disabled, refused to accommodate her disability, and retaliated against her for exercising her rights under the Family Medical Leave Act and the Americans with Disabilities Act. The district court granted summary judgment in Brown County’s favor. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Claudia Melesio-Rodriguez v. Jefferson B. Sessions III

Case No.: 16-1781

Officials: BAUER, FLAUM, and MANION, Circuit Judges.

Focus: Immigration – Jurisdiction

An immigration judge ordered Petitioner Claudia Melesio‐Rodriguez removed to Mexico because she had committed multiple controlled‐substance offenses. Petitioner accepted the removal order as final and waived her right to appeal it. Nevertheless, she almost simultaneously appealed to the Board of Immigration Appeals and filed a motion for reconsideration with the immigration judge. Petitioner never asked us to review the Board’s dismissal of her first appeal. This petition challenges the Board’s eventual dismissal of her reconsideration appeal.

Petitioner principally argues that she did not knowingly and intelligently waive her appeal rights in the initial hearing. But because Petitioner is a criminal alien and the waiver question is factual in nature, we lack jurisdiction to answer it under 8 U.S.C. § 1252(a)(2)(C). That leaves us with no choice but to dismiss her petition. For the foregoing reasons, the petition for review is DISMISSED.

Dismissed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Adrian Tartareanu, et al.

Case No.: 17-2759; 17-2761

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

Focus: Sentencing Guidelines

On October 23, 2013, a jury convicted Adrian and Daniela Tartareanu of wire fraud in violation of 18 U.S.C. § 1343 and conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. They appealed their original sentences, and we remanded for resentencing. United States v. Litos, 847 F.3d 906 (7th Cir. 2017). On remand, the district court sentenced Adrian to 36 months’ imprisonment, Daniela to 21 months’ imprisonment, and imposed a $30,000 fine on each of them. In this appeal, the Tartareanus challenge the district court’s intended loss calculation under U.S.S.G. § 2B1.1, as well as its decision to deny Daniela a minor role reduction under U.S.S.G. § 3B1.2. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dawne A. Sanzone, et al. James Gray

Case No.: 17-2103

Officials: WOOD, Chief Judge, and BAUER and BARRETT, Circuit Judges.

Focus: 4^Th Amendment Violation – Qualified Immunity

Indianapolis police officer James Gray fatally shot an agitated Keith Koster when Koster threatened to fire a “warning shot” and then pointed his gun at police officers gathered in the doorway of his apartment. Koster’s sister sued on behalf of his estate, claiming that Gray violated the Fourth Amendment by using excessive force. The district court denied Gray’s motion for summary judgment based on qualified immunity. Because Gray acted reasonably when Koster pointed a gun at him and fellow officers, he did not violate the Fourth Amendment and is entitled to qualified immunity. We therefore reverse the district court’s decision and remand with instructions to enter judgment for Gray.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Mark Skiba v. Illinois Central Railroad Company

Case No.: 17-2002

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

Focus: Title VII Claim – Sufficiency of Evidence

Plaintiff‐appellant Mark Skiba alleges his former employer, defendant‐appellee Illinois Central Railroad (“IC”), unlawfully discriminated against him on the basis of age and national origin, as well as retaliated against him for complaining about a superior, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–34, and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e–2000e‐17. The district court granted summary judgment in favor of IC. Plaintiff now appeals. We

affirm.

Plaintiff claims that in granting summary judgment, the district court merely “view[ed] the evidence as unconnected fragments” and “fail[ed] to consider the evidence as a whole.” As such, the evidence presented below does not permit a reasonable factfinder to conclude plaintiff’s age caused the adverse employment actions at issue here. Turning briefly to plaintiff’s Title VII discrimination claim, we agree with the district court that there is no evidence that IC’s actions were taken because of plaintiff’s national origin. Plaintiff seemingly recognizes this fact as well; his fifty‐three-page brief devotes only one page to his Title VII claim.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Stephen Onwarkial Leonard

Case No.: 17-1924

Officials: BAUER, FLAUM, and MANION, Circuit Judges.

Focus: Motion to Suppress Denied

Stephen Leonard pleaded guilty to possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Police discovered the gun after obtaining a warrant to search his home on suspicion that his wife was dealing drugs from the residence. Leonard appeals the denial of his motion to suppress the gun as well as the district court’s decision not to require the government to reveal the identity of a tipster who told police about the drug activity. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Omarr D. Teague

Case No.: 17-1725

Officials: KANNE and ROVNER, Circuit Judges, and DURKIN, District Judge

Focus: Sentencing Guidelines

Prior convictions for crimes of violence subject a defendant to a higher base offense level under the federal Sentencing Guidelines. Because the district court below erroneously concluded that the offense of second degree murder under Illinois law is not a crime of violence, we reverse.

Second degree murder under Illinois law qualifies as a crime of violence under both prongs of section 4B1.2 of the U.S. Sentencing Guidelines. Therefore, the judgment of the district court is REVERSED and this case is REMANDED to the district court for resentencing consistent with this opinion.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Joshua Herman

Case No.: 17-1423

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

Focus: Sentencing Guidelines and Statutory Interpretation

This case involves the coordination of sentencing between federal and state courts. The underlying facts are straightforward. On May 4, 2016, Joshua Herman, a member of the Latin Dragons gang, visited the home of Jacob Kirk and Samantha Daniels. At some point during his visit, Herman asked if he could hold Daniels’s handgun, which he noticed was sticking out of a bright pink case in her purse. As soon as Daniels obliged, Herman pulled out a second gun, pointed both weapons at Daniels and Kirk, ordered them not to move, and then fled the house with the guns. Daniels and Kirk chased him outside, whereupon Herman turned around and shot at them. He then hopped into a getaway car and sped off.

Herman was arrested for his crime and pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g). Among other sentencing adjustments, the district court imposed a two-level enhancement in his offense level for the use of physical restraint, U.S.S.G. § 2B3.1(b)(4)(B), on the theory that Herman “restrained” the victims when he pointed the guns at them and ordered them to stay put. Herman was ultimately sentenced to 120 months in prison, which was both the bottom of his guidelines range and the statutory maximum.

On appeal, Herman raises two challenges to his sentence. First, he argues that the district court failed to recognize its own discretion when it said that it could not require Herman’s federal sentence to run concurrently with his state sentence. Second, he argues—for the first time—that pointing a gun at someone and telling her not to move does not count as “physically restraining” her under U.S.S.G. § 2B3.1(b)(4)(B). Because we conclude that Herman is entitled to be resentenced based on his first argument, we need not consider his second.

For these reasons, the sentence imposed by the district court is VACATED and REMANDED for further proceedings consistent with this opinion. On remand, the district court should consider Herman’s argument that the physical restraint enhancement does not apply to him, as well as any other arguments not resolved in this appeal.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Euripides Caguana

Case No.: 15-3453; 16-4152

Officials: RIPPLE, MANION, and SYKES, Circuit Judges

Focus: Sufficiency of Evidence

A grand jury charged Euripides Caguana with four counts of using a facility of interstate commerce with the intent that the murder-for-hire of two individuals be committed, in violation of 18 U.S.C. § 1958(a). After a five-day trial, the jury rejected Mr. Caguana’s entrapment defense and found him guilty on all counts. The district court sentenced him to a total of 210 months’ imprisonment and one year of supervised release.

After filing a timely appeal of his convictions and sentence, Mr. Caguana filed a motion in the district court under Federal Rule of Criminal Procedure 33, requesting a new trial based on newly discovered evidence. We ordered a limited remand. See Fed. R. App. P. 12.1. After a full evidentiary hearing, the district court denied the motion for a new trial. Mr. Caguana timely appealed from that ruling.  We consolidated his two appeals.

We now affirm the judgments of the district court. Mr. Caguana’s challenges to the sufficiency of the evidence, with respect to both his intent to pay for a murder-for-hire and his entrapment defense, fail as a matter of law. Our case law clearly forecloses his argument that the intent element of § 1958(a) requires a legally binding contract. Here, there was sufficient evidence that Mr. Caguana had the requisite intent that a murder-for-hire be committed. The jury was entitled to credit the testimony of the informant and to make reasonable inferences from the evidence, which included a number of recorded conversations introduced by the Government.

The evidence also was sufficient to permit the jury to reject Mr. Caguana’s entrapment defense. The district court thoroughly examined this matter in adjudicating Mr. Caguana’s motion for a new trial, and Mr. Caguana does not meaningfully challenge the denial of that motion on appeal. Based on the existing trial record, we are convinced that the jury acted reasonably in finding that Mr. Caguana was not entrapped by a government agent.Mr. Caguana’s challenge to his sentence must also fail. The district court followed the plain wording of the applicable guidelines provisions and correctly applied those provisions to the facts of this case. There is no question that the sentence is substantively reasonable.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Zimmer, NexGen Knee Implant Products Liability

Case No.: 16-3957

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

Focus: Learned Intermediary Doctrine

Theodore Joas underwent a total knee replacement at a Wisconsin hospital and received a Zimmer NexGen Flex knee implant. Within a few years, he began experiencing pain in his new knee. X-rays confirmed that the implant had loosened and required a surgical fix. Joas brought a panoply of claims against Zimmer, Inc., the implant manufacturer. His case was transferred to a multidistrict litigation in the Northern District of Illinois, where it was eventually treated as a bellwether case. Applying Wisconsin law, the presiding judge entered summary judgment for Zimmer.

Joas asks us to reinstate a single claim based on a theory of inadequate warning. His appeal raises some unresolved issues in Wisconsin product-liability law—most notably, the application of the “learned intermediary” doctrine, which the Wisconsin Supreme Court has not yet had an opportunity to address. We predict that the state high court would follow the lead of other states and adopt this doctrine. We affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rodney Washington v. Gary A. Boughton

Case No.: 16-3253

Officials: WOOD, Chief Judge, HAMILTON, Circuit Judge, and BUCKLO, District Judge

Focus: Ineffective Assistance of Counsel

A Wisconsin jury convicted Rodney Washington of multiple counts of first-degree sexual assault with the use of a dangerous weapon and other crimes. Washington appealed his conviction, arguing that the criminal complaint that triggered his prosecution was legally insufficient under Wisconsin law; that his trial attorney was ineffective for failing to seek dismissal of the complaint on that ground; and that the trial court deprived him of his constitutional right to self-representation. After exhausting these claims in state court, Washington sought federal habeas corpus relief. The district court denied his petition.

We conclude that neither Washington’s due process challenge to the state appellate courts’ treatment of his claim based on the sufficiency of his charging documents nor his ineffective assistance of counsel claim entitles him to habeas relief. We are convinced, however, that the state courts’ denial of his request to proceed pro se cannot be squared with Faretta v. California, 422 U.S. 806 (1975). Accordingly, we reverse.

Reversed and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Taylor Q. Scott v. University of Wisconsin System Board of Regents, et al.

Case No.: 2015AP1244

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

Focus: Abuse of Discretion – Disclosure of Public Records

Taylor Q. Scott appeals the circuit court’s orders denying his petition for writ of mandamus seeking disclosure of public records from the University of Wisconsin-Milwaukee (UWM). Scott argues: (1) UWM improperly redacted student names from documents it provided him pursuant to his request under the open records law; (2) the documents he sought were not education records because they were not “maintained” by UWM; and (3) the circuit court misused its discretion by declining his request to conduct an in camera review of the records. We affirm.

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WI Court of Appeals – District III

Case Name: Bay Bank v. Gwen S. Carr

Case No.: 2016AP1994

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

Focus: Court Error – Foreclosure

Gwen Carr appeals a summary judgment of foreclosure in favor of Bay Bank. She argues the circuit court erred because Bay Bank failed to make a prima facie case for foreclosure and because the record contains facts from which a reasonable factfinder could conclude Bay Bank breached its obligations under the mortgage. She also argues the court made a procedural error by refusing to consider documents she submitted after the order granting summary judgment had been entered. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Corey R. Fugere

Case No.: 2016AP2258-CR

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

Focus: Plea Withdrawal

Corey Fugere appeals an order for commitment placing him in institutional care and an order denying his postdisposition motion to withdraw his plea of not guilty by reason of mental disease or defect (NGI). Fugere claims his NGI plea was not made knowingly, intelligently, and voluntarily because the circuit court failed to accurately inform him of the correct maximum term of civil commitment he faced under WIS. STAT. § 971.17 (2015-16).

We conclude that while a circuit court must correctly advise a defendant pleading NGI of the maximum term of imprisonment he or she faces, a court’s failure to accurately advise a defendant of his or her possible maximum civil commitment term does not render an NGI plea unknowing, unintelligent, or involuntary. The safeguards required for a valid plea apply only to the guilt phase of an NGI plea, and an individual’s possible civil commitment resulting from an acquittal during the subsequent mental responsibility phase is neither a “punishment” nor a direct consequence of a defendant pleading guilty or no contest during the guilt phase. Therefore, a circuit court need not advise a defendant regarding his or her possible civil commitment—much less do so accurately—in order for a defendant’s NGI plea to be knowing, intelligent, and voluntary.  Applying these standards to the facts of this case, Fugere is not entitled to withdraw his plea. Accordingly, we affirm.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Hakeem Dontrail Harris

Case No.: 2017AP274-CR

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

Focus: Sufficiency of Evidence – Unreasonable Seizure

Hakeem Dontrail Harris appeals a judgment of conviction for possession of a firearm by a felon. He argues the seizure that led to the discovery of the gun was unlawful. First, he argues that the vehicle’s location within fifteen feet of a crosswalk is insufficient absent additional facts to provide reasonable suspicion that it was illegally parked. Second, he argues that even if the seizure had a lawful basis, the manner in which the investigatory stop was conducted constituted a Fourth Amendment violation—that it was overly intrusive under the circumstances—such that the evidence obtained must be suppressed. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Korry L. Ardell

Case No.: 2017AP381-CR

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

Focus: Postconviction Motion Denied

Korry L. Ardell appeals a judgment of conviction for one count of stalking and an order denying his motion for postconviction relief. The stalking charge was based on Ardell’s conduct toward N., a woman who went on three dates with him after they met in 2007 on an online dating site. Ardell argues that the circuit court erred when it ruled that specific emails Ardell sent in 2014 to a principal for whom N. had worked were admissible to prove that Ardell violated the stalking statute when he “intentionally engage[d]” in a “course of conduct directed at [N.],” specifically “[s]ending material … for the purpose of obtaining information about, disseminating information about, or communicating with the victim, to … an employer, coworker, or friend of the victim.”  Ardell argues first that those emails were irrelevant and inadmissible because they were not “directed at” N. and because the State produced no evidence that he sent them with the subjective intention of making N. fear bodily injury. He makes the same arguments with regard to the jury instructions—that they failed to state the law correctly on the “directed at” issue and the intent issue—and he argues that he is entitled to a new trial because failure to preserve this issue constituted ineffective assistance of counsel. Finally, he argues that he is entitled to a new trial in the interest of justice under WIS. STAT. § 752.35.

Giving effect to the plain meaning of the statute, we conclude that the circuit court’s evidentiary ruling applied the correct legal standard. A jury could find that the act of sending the emails to the principal was a course of conduct Ardell “intentionally engage[d] in” that was “directed at” N. Contrary to Ardell’s interpretation, the words “directed at” do not require the State to prove that the defendant actually intended for the communications to reach the victim. The statute expressly encompasses communications to a third party, and we decline to interpret the statute so strictly that its purpose is defeated. The unpreserved issues are reviewed under the ineffective assistance rubric, and we reject the argument that trial counsel performed deficiently by failing to raise the arguments raised here because as Ardell acknowledges, no Wisconsin court has held that the statute is interpreted as having the heightened requirements he advocates, and it is well established that it is not deficient performance when counsel fails to make an argument based on a legal interpretation no court has adopted.  Finally, this is not the rare or extraordinary case that is appropriate for employing our discretionary reversal powers. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Cayetano Villanueva, Jr.,

Case No.: 2017AP385-CR

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

Focus: Ineffective Assistance of Counsel

Cayetano Villanueva, Jr., appeals a judgment of conviction and a postconviction order. He contends that his trial counsel was ineffective for failing to object when the sentencing court made remarks that he says show it penalized him for going to trial. Because we conclude that the remarks properly related to the circuit court’s consideration of the gravity of the offense and its effect on the victim, we reject his claims and affirm.

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WI Court of Appeals – District III

Case Name: Wells Fargo Bank, N.A., v. Brian D. Udean, et al.

Case No.: 2017AP507

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

Focus: Foreclosure

Kathleen Udean appeals a summary judgment reforming an earlier foreclosure judgment to correct an error in the legal description of the property. She argues: (1) the terms of the mortgage were unambiguous and satisfied the requirements of WIS. STAT. § 706.02(1) (2015-16), and, as a result, there is no legal basis for reformation; (2) summary judgment was inappropriate because there are outstanding issues of material fact regarding mutual mistake; and (3) the court should have stricken the affidavit of Savannah Witte because it was not based on personal knowledge and contained hearsay. We reject these arguments and affirm the judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Deandre D. Rogers

Case No.: 2017AP670-CR

Officials: Kessler, Brash and Dugan, J.J.

Focus: Court Error – Abuse of Discretion

Following a jury trial, Deandre D. Rogers was convicted of two counts of armed robbery, one count of robbery and three counts of bail jumping. On appeal, Rogers contends that the trial court erroneously exercised its discretion by (1) admitting evidence that a vehicle, from which his fingerprint was lifted, had been reported stolen, and (2) allowing the prosecutor’s closing argument regarding the mathematical probability that Rogers had been mistakenly identified in the photo arrays.

We conclude that the trial court properly exercised its discretion in admitting evidence that the vehicle was reported stolen and that Rogers was not prejudiced by the prosecutor’s improper comments in closing argument. Therefore, we affirm Roger’s conviction. The following facts are relevant to the issues on appeal. Additional facts will be included in our discussion.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Bruce D. Johnson

Case No.: 2017AP834-CR

Officials: HRUZ, J.

Focus: Sentence Modification

Bruce Johnson appeals a judgment of conviction and an order denying his postconviction motion. Johnson argues he is entitled either to sentence modification due to a new factor or to resentencing because the circuit court relied on inaccurate information at sentencing. The main premise of both arguments is that the circuit court mistakenly believed Johnson would serve his sentence in jail instead of prison. We conclude that, assuming this constituted a new factor, the circuit court did not erroneously exercise its discretion in deciding this factor failed to justify modifying Johnson’s sentence. We also conclude the court did not rely on this fact at sentencing such that resentencing is required. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Roman D. Lovelace

Case No.: 2017AP943-CR

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

Focus: 6^th Amendment Violation

Roman D. Lovelace appeals from judgments of conviction, entered upon a jury’s verdict, as well as an order denying his postconviction motion seeking a new trial. Lovelace argues that his constitutional and statutory rights to be present during all stages of the trial were violated when the trial court responded to a jury question without consulting the parties. The State argues that Lovelace forfeited his claim on this issue because he failed to object to the trial court regarding its response, but that in any event the error was harmless. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jamey Lamont Jackson

Case No.: 2017AP968-CR

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

Focus: Ineffective Assistance of Counsel

Jamey Lamont Jackson appeals a judgment of conviction, following a jury trial, of one count of being a felon in possession of a firearm. He also appeals the order denying his postconviction motion for a new trial on the basis of ineffective assistance of counsel. We affirm.

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WI Court of Appeals – District I

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

Case No.: 2017AP1138; 2017AP1139; 2017AP1139; 2017AP1140; 2017AP1141

Officials: KESSLER, J.

Focus: Termination of Parental Rights

C.S.S. appeals the orders terminating her parental rights to her four children, A.N.W., N.T., A.L.T., and A.M.S. C.S.S. also appeals the order denying her postdisposition motion. She contends that her no contest plea at the fact finding hearing was not knowing, voluntary and intelligent because she did not understand the circuit court’s statements about what the State’s burden would be at the disposition hearing. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. B.D.H.

Case No.: 2017AP2390; 2017AP2391

Officials: BRASH, J.

Focus: Termination of Parental Rights

B.D.H. appeals from orders terminating her parental rights for B.M.D. and L.D.D. Jr. She argues that the trial court erroneously exercised its discretion when it admitted the opinion testimony of a case manager regarding whether B.D.H. would be able to meet the conditions required for the return of the children within the statutory timeframe. B.D.H. therefore seeks to vacate the termination of parental rights orders for the children. We affirm.

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WI Court of Appeals – District II

Case Name: Lynn E. Schuldt, et al. Village of Union Grove, et al.

Case No.: 2016AP2119

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

Focus: Statutory Interpretation

Lynn E. Schuldt and Christina L. Bass (the landowners) appeal an order affirming a decision by the Village of Union Grove Board of Zoning and Appeals (the Board) that an addition built on the landowners’ property failed to comply with a Village of Union Grove zoning ordinance. The landowners argue that the Board acted unreasonably in applying the ordinance to their corner-lot property. They further challenge the Board’s composition as biased and statutorily insufficient. We reject the landowners’ arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin Ex Rel., et al. v. Board of Review for the Town of Delafield

Case No.: 2017AP516

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

Focus: Trust – Tax Assessment

The Peter Ogden Family Trust of 2008 and The Therese A. Mahoney-Ogden Family Trust of 2008 (collectively “the Trust”) filed this action for certiorari review of a decision of the Board of Review for the Town of Delafield sustaining the 2016 property tax assessment of the Trust’s real property. The Trust argues the Board failed to act according to law when it sustained the assessment, which was based upon the assessor’s change in the classification of the property from agricultural and agricultural forest to residential. Specifically, the Trust claims the classification change was erroneous because it was based upon the assessor’s and the Board’s mistaken legal belief that in order for land to qualify as agricultural land, crops grown on the property must be grown for a business purpose. Because we agree that both the assessor’s change of the classification to residential and the Board’s sustainment of that change were based upon the erroneous legal belief that a business purpose was necessary for an agricultural classification, we reverse and remand this matter to the circuit court.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Matthew F. Summerville

Case No.: 2017AP905-CR

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

Focus: Sufficiency of Evidence – Unreasonable Seizure

Matthew F. Summerville appeals from his judgment of conviction, arguing the circuit court erred in denying his motion to suppress evidence. Specifically, Summerville contends warrants to search his home and his mother’s home, the searches of which resulted in the discovery of evidence ultimately leading to his conviction, lacked probable cause to justify the searches. We disagree.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. James C. Faustmann

Case No.: 2017AP1932-CR

Officials: REILLY, P.J.

Focus: Court Error – Lesser Incldued Offense

James C. Faustmann was charged with unlawful use of computerized communication systems under WIS. STAT. § 947.0125(2)(a) for sending threats and obscenities by email to a public figure and bail jumping. The jury found Faustmann guilty on both counts. Faustmann argues the circuit court erred by: (1) denying his request to include disorderly conduct as a lesser-included offense of unlawful use of computerized communication systems and (2) allowing acts that were charged in another jurisdiction, but not yet adjudicated, to be introduced as other-acts evidence. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Todd R. Hamann

Case No.: 2016AP987-CR

Officials: Kloppenburg, Fitzpatrick and Stark, JJ.

Focus: Sentencing

Todd Hamann appeals a judgment of conviction and an order denying his motion for postconviction relief. He argues that he is entitled to resentencing because the circuit court failed to disclose information that he contends may have affected the court’s sentencing decision and that his due process rights were violated because the judge was biased. Hamann also asserts that the court erroneously exercised its discretion in sentencing him to what Hamann contends was an excessive and disproportionate sentence. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Antonio Lavel Mance

Case No.: 2016AP2087-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Ineffective Assistance of Counsel

Antonio Mance appeals a judgment of conviction for first-degree intentional homicide and attempted first-degree intentional homicide, and orders denying his motion and supplemental motion for postconviction relief. Mance contends that he is entitled to a new trial based on newly discovered evidence, prosecutorial misconduct, ineffective assistance of trial counsel, and plain error, and in the interest of justice. We affirm.

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WI Court of Appeals – District III

Case Name: Members of Sky Park Industrial Center v. The City of Eau Claire, LLC.

Case No.: 2017AP578

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

Focus: Protective Covenants – Statutory Interpretation

The Members of Sky Park Industrial Center (the “Members”) appeal a circuit court order entered on March 14, 2017. In that order, the court determined that certain protective covenants pertaining to real property known as Sky Park Industrial Center were unambiguous, and that defendants Garbo, LLC, Advanced Engineering Concepts, LLC, and the City of Eau Claire were entitled to summary judgment. We affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Stephen K. Schwan

Case No.: 2017AP879-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Sentence Modification

Stephen Schwan appeals a criminal judgment and an order denying his motion for sentence modification. Schwan contends that the circuit court sentenced him based upon improper factors and/or inaccurate information. We reject Schwan’s challenges to his sentence and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Travares Darrell Grady

Case No.: 2017AP908-CR

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

Focus: Ineffective Assistance of Counsel

Travares Grady appeals amended judgments convicting him of first-degree intentional homicide by use of a dangerous weapon as a party to the crime and possession of a firearm by a felon as a repeat offender, as well as an order denying his postconviction motion. Grady challenges the denial of his motion for a mistrial, contends that he was entitled to a hearing on several claims of ineffective assistance of counsel, and claims that the evidence was insufficient to support the verdict on the firearm count. For the reasons discussed below, we reject each of the claims and affirm.

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WI Court of Appeals – District IV

Case Name: Gene Ransom, et al. v. Janice M. Basswood

Case No.: 2017AP1054-AC

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

Focus: Public Nuisance – Insufficient Service

Six residents of Black River Falls, Wisconsin, (who we will call “the Plaintiffs”) brought suit in the Jackson County Circuit Court against Janice Basswood and her husband, Christopher Sargent. Plaintiffs’ complaint alleged that a house in which Basswood resided was a public nuisance under the Drug House Abatement Law and a private nuisance. The circuit court granted a default judgment against Basswood and Sargent on both the public nuisance and private nuisance claims, and ordered abatement of the nuisance. Basswood and Sargent filed a motion to vacate the default judgment. That motion was denied by the circuit court.

Basswood and Sargent appeal and argue that the default judgment should be vacated because the house was not a public nuisance and service of the summons and complaint was insufficient. We conclude that, pursuant to the Drug House Abatement Law, only municipalities may bring an action to have a house declared a public nuisance and have the public nuisance abated. The Plaintiffs are private citizens and, therefore, could not bring a valid public nuisance claim under the Drug House Abatement Law. As a result, we reverse the circuit court’s denial of the motion to vacate the default judgment on the public nuisance claim and remand to the circuit court for dismissal of the public nuisance claim. We also conclude that there was sufficient service of the summons and complaint on Basswood and, accordingly, affirm the denial of the motion to vacate the default judgment granted against Basswood on the private nuisance claim.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Matthew Dylan Bump

Case No.: 2017AP1069-CR

Officials: Sherman, Blanchard, and Fitzpatrick, JJ.

Focus: Sufficiency of Evidence – Unreasonable Seizure

Matthew Bump appeals a judgment of conviction for possession of marijuana with intent to deliver. Bump argues that the circuit court erred in denying his motion to suppress evidence seized during the warrantless, unconsented entry to his residence and entry to his locked bedroom by police. We conclude that the two searches were reasonable under the community caretaker exception to the Fourth Amendment and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: Jean Lynch, et al. Todd R. Braaksma, et al.

Case No.: 2017AP1081

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ

Focus: Sufficiency of Evidence

Todd and Pamela Braaksma appeal a judgment determining that Jean and Michael Lynch acquired legal title to a parcel of land by adverse possession.  We conclude that Lynch failed to present sufficient evidence at trial to establish adverse possession and, therefore, we reverse.

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WI Court of Appeals – District IV

Case Name: Kim W. McCutchin v. Terri Morrow p/k/a Terri Laws

Case No.: 2017AP1407

Officials: KLOPPENBURG, J.

Focus: Court Error – Retaliatory Eviction

Terri Morrow appeals a judgment of eviction entered against her for her failure to pay rent to her landlord, Kim McCutchin. I affirm the judgment. Morrow argues that the circuit court erred because: (1) it did not determine whether the eviction was retaliatory, and in violation of WIS. STAT. § 704.45(1), and (2) it “ordered [Morrow] to vacate the premises on a date certain in the absence of a request for and issuance and service of a writ of restitution.” McCutchin argues that the circuit court properly disregarded Morrow’s retaliatory eviction defense because of her undisputed failure to pay rent, and that a writ of restitution was not required in this case or, alternatively, any harm by failing to issue a writ was harmless.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Horizon Bank, National Association v. Marshalls Point Retreat LLC, et al

Case No.: 2018 WI 19

Focus: Statutory Interpretation – Foreclosure

The petitioner, Allen S. Musikantow (Musikantow), seeks review of an unpublished per curiam decision of the court of appeals directing that the circuit court apply a credit of $2,250,000 to a money judgment entered against Musikantow as guarantor of a loan.  Musikantow contends that the court of appeals erred by limiting the credit to the amount of the winning bid at the sheriff’s sale thereby precluding the circuit court from hearing evidence of the fair value of the property after the confirmation of sale.

Specifically, Musikantow contends that Wis. Stat. § 846.165 (2015-16) does not require a circuit court to make a determination of a guaranty credit at the time the foreclosure sale is confirmed. He further argues that circuit courts have the discretion to decouple guaranty-related rulings from underlying foreclosure sales.

We conclude that Wis. Stat. § 846.165 does not apply to credits toward a judgment on a guaranty. Rather, it applies to the relationship between only the mortgagee and mortgagor who signed the promissory note underlying the mortgage. It therefore cannot serve as authority for the proposition that, when confirming a foreclosure sale, a circuit court must determine the amount of a credit to be applied to a judgment on a guaranty.

Further, we conclude that when an action for foreclosure against a mortgagor and an action for a money judgment on a guaranty are brought in the same proceeding as in the instant case, the circuit court may, in its discretion, decide the amount of a credit to be applied to a judgment on a guaranty either at the time the sale is confirmed or at another time. The questions of fair value for purposes of Wis. Stat. § 846.165 and the amount of any credit toward the judgment on the guaranty are separate questions. Thus, the circuit court did not erroneously exercise its discretion when it decoupled the confirmation of sale from the determination of the guaranty credit.

Finally, we determine that the stipulation in this case does not establish that the amount of the winning bid at the sheriff’s sale shall be the sole credit toward the money judgment against Musikantow. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings to determine the amount of the credit to be applied toward the judgment against Musikantow as guarantor.

Reversed and Remanded

Concur:

Dissent: R.G. BRADLEY, J. dissents (opinion filed).

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Supreme Court Digests

United States Supreme Court

Case Name: U.S. Bank N.A., Trustee, et al. v. Village at Lakeridge, LLC

Case No.: 15-1509

Focus: Statutory Interpretation – Bankruptcy

The Bankruptcy Code places various restrictions on anyone who qualifies as an “insider” of a debtor. The statutory definition of that term lists a set of persons related to the debtor in particular ways. See 11 U. S. C. §101(31). Courts have additionally recognized as insiders some persons not on that list—commonly known as “nonstatutory insiders.” The conferral of that status often turns on whether the person’s transactions with the debtor (or another of its insiders) were at arm’s length. In this case, we address how an appellate court should review that kind of determination: de novo or for clear error? We hold that a clear-error standard should apply.

Affirmed

Dissenting:

Concurring: KENNEDY, J., filed a concurring opinion. SOTOMAYOR, J., filed a concurring opinion, in which KENNEDY, THOMAS, and GORSUCH, JJ., joined

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United States Supreme Court

Case Name: Texas v. New Mexico

Case No.: 141

Focus: Rio Grande Compact Violation

To resolve their disputes over water rights in the Rio Grande, Colorado, New Mexico, and Texas, with Congress’s approval, signed the Rio Grande Compact. The Compact requires Colorado to deliver a specified amount of water annually to New Mexico at the state line and directs New Mexico to deliver a specified amount of water to the Elephant Butte Reservoir. The Reservoir was completed in 1916 as part of the Federal Government’s Rio Grande Project and plays a central role in fulfilling the United States’s obligations to supply water under a 1906 treaty with Mexico as well as under several agreements with downstream water districts in New Mexico and Texas (Downstream Contracts).

Texas brought this original action complaining that New Mexico has violated the Compact by allowing downstream New Mexico users to siphon off water below the Reservoir in ways not anticipated in the Downstream Contracts. The United States intervened and filed a complaint with parallel allegations. The Special Master filed a report recommending that the United States’s complaint be dismissed in part because the Compact does not confer on the United States the power to enforce its terms. This Court agreed to hear two exceptions to the report concerning the scope of the claims the United States can assert here: The United States says it may pursue claims for Compact violations; Colorado says the United States should be permitted to pursue claims only to the extent they arise under the 1906 treaty with Mexico.

The United States may pursue the Compact claims it has pleaded in this original action. This Court, using its unique authority to mold original actions, see Kansas v. Nebraska, 574 U. S. ___, ___, has sometimes permitted the federal government to participate in compact suits to defend “distinctively federal interests” that a normal litigant might not be permitted to pursue in traditional litigation, Maryland v. Louisiana, 451 U. S. 725, 745, n. 21. While this permission should not be confused with license, several considerations taken collectively lead to the conclusion that the United States may pursue the particular claims it has pleaded in this case. First, the Compact is inextricably intertwined with the Rio Grande Project and the Downstream Contracts. Second, New Mexico has conceded in pleadings and at oral argument that the United States plays an integral role in the Compact’s operation. Third, a breach of the Compact could jeopardize the federal government’s ability to satisfy its treaty obligations to Mexico. Fourth, the United States has asserted its Compact claims in an existing action brought by Texas, seeking substantially the same relief and without that State’s objection. This case does not present the question whether the United States could initiate litigation to force a State to perform its obligations under the Compact or expand the scope of an existing controversy between States. Pp. 4–7. United States’s exception sustained; all other exceptions overruled; and case remanded.

Remanded

Dissenting:

Concurring:

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