Weekly Case Digests — September 10 – September 14, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Iwona Portalatin v. Blatt, Hasenmiller, Leibsker & Moore, LLC,

Case No.: 16-1578; 17-3335

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

Focus: FDCPA Violation

Iwona Portalatin allegedly owed $1,330.75 in consumer debt. In October 2013 the law firm of Blatt, Hasenmiller, Leibsker & Moore, LLC (“Blatt”) on behalf of its client Midland Funding, LLC (“Midland”) filed a debt‐collection suit against Portalatin in downtown Chicago at the Richard J. Daley Center Courthouse, which serves the Circuit Court of Cook County’s First Municipal District. Our then‐governing precedent interpreting the Fair Debt Collection Practices Act (“FDCPA”) allowed Blatt to file suit against Portalatin in that forum even though at the time of filing she lived in the Fourth Municipal District, served by the Maywood Courthouse.

But in July 2014, we overruled our precedent and held the FDCPA requires debt collectors to file suits in the smallest venue‐relevant geographic unit where the debtor signed the contract or resides at commencement of suit. Suesz v. Med‐1 Solutions, 757 F.3d 636, 638 (7th Cir. 2014). This meant Blatt should have filed Midland’s suit in the Fourth Municipal District where Portalatin lived. Blatt quickly complied with Suesz, but because we made our ruling retroactive, Blatt’s earlier filing was frozen in place for purposes of FDCPA liability. As a result, Portalatin sued Blatt and Midland for violating the FDCPA, and she sued Midland for violating the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”).

Eventually, Portalatin settled with Midland and expressly abandoned all claims against Blatt except her claim for FDCPA statutory damages. Blatt moved for relief on various grounds, including an argument that Portalatin’s settlement with Midland mooted her claim for FDCPA statutory damages against Blatt. The district court denied these motions. The jury awarded Portalatin $200 in statutory damages against Blatt. For this achievement, the court awarded Portalatin $69,393.75 in attorney’s fees and $772.95 in costs against Blatt. Blatt appeals. We conclude the settlement with Midland mooted Portalatin’s claim for FDCPA statutory damages against Blatt. As a result, the district court should have dismissed her claim, and she is not entitled to attorney’s fees or costs from Blatt.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Katrina Walker v. Carl Weatherspoon, et al. 

Case No.: 17-2665

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

Focus: Probable Cause – Sufficiency of Evidence

On March 31, 2016, when this suit was three and a half years old, the district court entered an order granting summary judgment to defendants “[f]or the reasons stated in the Memorandum Opinion and Order to follow”. More than 16 months passed before the judge released her opinion, 2017 U.S. Dist. LEXIS 129182 (N.D. Ill. Aug. 15, 2017), and plaintiff appealed that day. A judgment under Fed. R. Civ. P. 58 was entered on August 16.

This appeal came many months too late under Fed. R. App. P. 4(a)(7)(A)(ii), which says that a judgment is deemed to be entered on the earlier of the Rule 58 judgment or 150 days after a dispositive order is entered on the civil docket. Until Rule 4(a)(7)(A)(ii) was adopted in 2002 the losing side always could wait for the entry of the formal judgment. See United States v. Indrelunas, 411 U.S. 216 (1973); Carter v. Hodge, 726 F.3d 917, 919–20 (7th Cir. 2013). The new rule supersedes Indrelunas by deeming the judgment to have been entered 150 days after a dispositive order that does not amount to a proper judgment.

Walker’s goal in this litigation is to have a jury make a de novo decision about whether the state judge should have issued the warrant—that is to say, an independent decision about probable cause, putting to one side the state judge’s decision. But that’s not what federal law provides. Instead the decision of the judge who issued the warrant receives “great deference”. Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. McIntire, 516 F.3d 576, 577–79 (7th Cir. 2008). With the benefit of “great deference” the state judge’s probable-cause evaluation must prevail.

According to Walker the state judge was not entitled to rely on Doe, a first-time informant whose information had not been corroborated by the police. Walker proceeds as if Doe were an anonymous tipster, and, if she had been, then corroboration would have been essential. Florida v. J.L., 529 U.S. 266 (2000). But Doe was not anonymous; we use a pseudonym to protect her from retaliation, not because her identity was unknown to the police. They knew her name and background (she had an arrest record but not a conviction); they met with Doe and her father, and Doe said that she wanted to break her drug habit, a good reason for turning in her supplier. Doe testified in person before the judge who issued the warrant and by doing this exposed herself to as much as three years in prison if she was lying. 720 ILCS 5/26-1; 730 ILCS 5/5-4.5-45.

Walker faults the warrant-application process for withholding from the state judge the lack of corroboration. Yet neither Doe nor the officer who signed the application for the warrant stated that Doe’s information had been corroborated; a reasonable judicial officer thus would have inferred that it had not been. Nothing was concealed from the judge—nor does it matter exactly when Doe pointed to the house in which, she said, she had bought heroin (another topic on which Walker faults the affidavit seeking the warrant).

As for Walker’s contention that the police should have left the house as soon as they discovered T’s absence: What sense would that make? Drug dealers do not stay in their distribution points 24 hours a day. The police arrived at a disordered house that looked like a drug-distribution point. Walker admitted having a gun. It took a while for the officers to sort through the debris, locate the gun, search for drugs, and determine whether T lived in or used the house. It cannot be called unreasonable to take two hours to accomplish these things.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Straits Financial LLC, v. Ten Sleep Cattle Company, et al.

Case No.: 16-3860; 163903; 16-3967; 17-2100

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

Focus: Damages and Attorney’s Fees

Atop the Chicago Board of Trade Building in downtown Chicago stands Ceres, the Roman goddess of agriculture and grain. She faces north, but her reach extends at least as far west as Ten Sleep, Wyoming, to the family cattle ranch of defendant‐appellee Richard Carter. In 2010, through a broker in Scottsbluff, Nebraska, Carter opened a commodities futures and options trading account with a Chicago‐based financial institution. Carter intended to use the account to secure the prices his ranch—defendant‐appellee Ten Sleep Cattle Company—would receive for its cattle using various financial instruments.

At the same broker’s behest, Carter opened another account in 2011 with plaintiff‐appellant Straits Financial to speculate in other investment categories. After Carter and the broker split a tidy profit of $300,000, Carter instructed the broker to close out the account in March 2012. The broker did not follow those instructions. Instead, he continued speculating on U.S. Treasury Bond futures, losing approximately $2 million over the course of the next three months before his unauthorized trading was stopped. Straits Financial then liquidated Carter’s livestock commodities holdings to satisfy most of that $2 million shortfall, and turned to the courts for the remaining deficiency. After a bench trial, Carter prevailed on most points and established his ranch’s right to the seized funds and an award of attorney fees. However, the district court significantly reduced the amount of damages, finding that Carter had failed to mitigate his ranch’s damages by not closely reading account statements and trading confirmations during his broker’s trading spree.

Straits Financial and Perkins have appealed, and Carter and Ten Sleep have cross‐appealed. We must decide three principal issues: whether the district court correctly interpreted and applied the contracts governing Ten Sleep’s relationship with Straits Financial; whether the award of attorney fees was proper; and whether Ten Sleep’s damages should have been reduced under Illinois law. We affirm the district court’s judgment on the first two questions, but we reverse and remand in part for recalculation of Ten Sleep’s damages.

Affirmed

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7^th Circuit Court of Appeals

Case Name: David Bishop, et al. v. Air Line Pilots Association International

Case No.: 17-1438

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

Focus: Breach of Duty of Fair Representation

United Airlines pilot instructors David Bishop and Eric Lish brought this action against their union, the Air Line Pilots Association (“ALPA”). They alleged that ALPA had breached its duty of fair representation in its allocation of a retroactive pay settlement among different groups of pilots. ALPA moved for judgment on the pleadings; it contended that the plaintiffs had not alleged adequately that ALPA acted arbitrarily, discriminatorily, or in bad faith. The district court granted the motion and dismissed the case. Mr. Bishop and Mr. Lish timely appealed and seek reversal of the district court’s dismissal of their claims. We hold that the district court prematurely dismissed the plaintiffs’ well-pleaded allegations. We therefore reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Billie Thompson v. Lance Cope

Case No.: 17-3060

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

Focus: 4th Amendment Violation – Qualified Immunity

We address here two interlocutory appeals in a case stemming from the death of Dusty Heishman. In Indianapolis in October 2014, Heishman was high on amphetamines and running around naked in the street. Police responded and tried to subdue him. A paramedic arrived on the scene and administered a sedative to Heishman so he could be moved to an ambulance to be taken to an arrestee holding room at a hospital. Soon, Heishman’s heart and breathing stopped. Despite efforts to revive him, he died several days later.

Heishman’s estate sued, asserting federal Fourth Amendment claims and state-law tort claims. The district court denied qualified immunity to the paramedic on the excessive force claim. The court also allowed all but one of the state-law claims to proceed against the paramedic and the hospital without requiring the plaintiff estate to comply with the Indiana Medical Malpractice Act, Ind. Code § 34-18-1-1 et seq. The denial of qualified immunity is appealable as to legal issues, and the district court certified for interlocutory appeal under 28 U.S.C. § 1292(b) the state-law question whether the estate’s claims are covered by the Indiana Medical Malpractice Act.

We reverse as to both issues. The paramedic is entitled to qualified immunity on the excessive force claim. Case law did not (and does not) clearly establish that a paramedic can violate a patient-arrestee’s Fourth Amendment rights by exercising medical judgment to administer a sedative in a medical emergency. All of the state-law claims are subject to the substantive terms of Indiana’s Medical Malpractice Act, including damage caps and the requirement to submit the claim to a medical review panel before suit is filed. The undisputed facts show that the paramedic was exercising medical judgment in dealing with a patient in a medical emergency.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Johnny Jones

Case No.: 17-2658

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

Focus: Sentencing Guidelines

After a jury convicted Johnny Jones of possessing and conspiring to distribute methamphetamine, the district court sentenced him to a term of imprisonment of 145 months. In calculating Jones’ sentence, the district court considered Jones’ possession of a gun carried in the purse of his co-conspirator and also several quantities of methamphetamine for which Jones claimed he was not responsible. We have reviewed these findings by the district court for clear error and finding none, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Paula Emerson v. Thomas J. Dart, et al.

Case No.: 17-2614

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

Focus: Employment Discrimination

Paula Emerson is a correctional officer on leave from the Cook County Department of Corrections. She alleges that two County employees unlawfully discriminated against her during her tenure at one of the County’s detention facilities. While litigation was underway, Emerson took to Facebook to threaten potential witnesses with legal action if they testified against her. The district judge sanctioned Emerson for the threat and eventually entered summary judgment for the defendants. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rodrigo Ramos-Braga v. Jefferson B. Sessions, III

Case No.: 17-1998

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

Focus: Immigration – Removal Proceedings

Rodrigo Ramos‐Braga, a citizen of Brazil, petitions for review of the denial of his second motion to reopen proceedings on his applications for special‐rule cancellation of removal, withholding of removal, and protection under the Convention Against Torture (CAT). His motion was both numerically barred and untimely filed with the Board of Immigration Appeals, but Ramos‐Braga argued that these limits should be excused under the doctrine of equitable tolling for ineffective assistance of counsel or under a statutory exception based on changed country conditions. The Board determined that neither exception applied and that the time and numerical limits therefore barred his motion. Because the Board did not abuse its discretion, we deny the petition.

Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jenette George

Case No.: 17-1714

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

Focus: Medicare – Anti-Kickback Violation

The defendant Jenette George was charged along with three co‐defendants in an indictment alleging violations related to a Medicare‐fraud scheme. The indictment alleged a scheme whereby George received payments from Rosner Home Health Care, Inc. (“Rosner”), for each Medicare patient that she referred to it. George was tried on two counts of receiving kickbacks for Medicare referrals on April 12, 2012, and May 17, 2012, in violation of 42 U.S.C. § 1320a‐7b(b)(1)(A) of the Anti‐Kickback Statute, and with conspiracy to offer kickbacks beginning on or about November 2010 to July 2012, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1320a‐7b(b)(2)(A). Two owners and an employee of Rosner—Ana Tolentino, Frederick Magsino, and Edgardo “Gary” Hernal—were also indicted on charges of conspiracy and pled guilty prior to trial.

George, however, argues that the statute is limited in its application to persons who are the “relevant decisionmakers” or who are at least persons in a similar position as the relevant decisionmaker. She asserts that she did not fall within that definition because the persons she referred had to be certified by a physician before they could be admitted to Rosner, and that she did not attempt to influence the doctors who certified the patients she referred. She relies for that argument on the Fifth Circuit’s decision in United States v. Miles, 360 F.3d 472 (5th Cir. 2004), in which the court held that payments to a marketing firm which distributed advertisement brochures of the home health service provider to physicians did not fall within the statute because they were not payments made to the relevant decisionmaker as a kickback for sending patients to the service provide George also asserts that there was insufficient evidence that she acted knowingly and willfully under the statute, but this claim cannot withstand scrutiny.

George brings a separate challenge as to the government’s questioning of her regarding this book, arguing that the district court erred in allowing the government to question her as to whether she had read certain paragraphs in the book, but that argument is without merit. First, George ad‐ mitted the book into evidence in her direct examination, and testified that in early 2011 after reading the book she developed concerns about how she and Rosner were doing business and sent an email to Hernal expressing her concerns. She acknowledged reading enough of the book to have concerns about the legality of her arrangement with Rosner, but denied reading sections that specifically discussed kickbacks. George’s only other challenge to cross‐examination is her claim that the government improperly sought a legal opinion from her, a layperson, when it questioned her as to her knowledge of the illegality of referral payments. George has no authority for the proposition that a defendant cannot be asked about her own knowledge or state of mind—a question which she is uniquely positioned to answer—and which seeks factual information not a conclusion as to its legal significance.

George’s final contention is that Hernal should have been considered a “missing witness” because he was not called by the government. She argues that the district court erred in failing to accept her proposed missing witness instruction, which would have allowed the court to infer from Hernal’s absence that Hernal would have provided information unfavorable to the government’s case.

Accordingly, even if the missing witness instruction had been appropriate, its omission here would have been harmless error.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Helping Hand Caregivers, LTD., v. Darden Restaurants, Inc., et al.

Case No.: 17-1282

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

Focus: TCPA Violation

Helping Hand Caregivers, Ltd., (“Helping Hand”) filed a suit against Darden Restaurants, Inc., Mid Wilshire Consulting, Inc. (“Mid Wilshire”), Brian Kang, and Greg Jones, alleging a violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Specifically, Helping Hand asserted that Mid Wilshire, through Kang and Jones, sent an unsolicited fax advertisement to Helping Hand on behalf of Darden. The district court granted Darden’s motion for summary judgment and dismissed the claims against the remaining defendants without prejudice. Helping Hand subsequently stipulated that the dismissals against the remaining defendants should be treated as dismissals with prejudice, and therefore the decision was final and appealable. Helping Hand now appeals the grant of summary judgment to Darden, arguing that the district court applied the wrong legal standard in granting summary judgment and that the court erred in limiting discovery and denying its motion under Federal Rule of Civil Procedure 56(d).

Helping Hand asserts, however, that the lack of such evidence is a result of the district court’s refusal to allow it to depose two witnesses—Kasha Momot and Roberto Sanchez—and that the court erred in refusing that discovery and in denying its subsequent motion under Federal Rule of Civil Procedure 56(d). Rule 56(d) provides that “[i]f a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” As Helping Hand acknowledges, we review discovery decisions of the district court only for abuse of discretion. Kuttner v. Zaruba, 819 F.3d 970, 974 (7th Cir. 2016). Moreover, “’[a] trial judge’s decision to consider a defendant’s motion for summary judgment before allowing the plaintiff to depose certain witnesses is a discovery matter, which we review under the abuse of discretion standard.’” Davis v. G.N. Mortg. Corp., 396 F.3d 869, 885 (7th Cir. 2005), quoting Grayson v. O’Neill, 308 F.3d 808, 815–16 (7th Cir. 2002). We will affirm such determinations unless the court’s ruling lacks any basis in law or fact or clearly appears to be arbitrary. Kuttner, 819 F.3d at 974.

Here, Helping Hand chose to ignore the remaining defendants despite the court’s repeated determination that it could not proceed with those depositions until it formulated a plan to address those other defendants so as to ensure a manageable discovery procedure. Its lack of diligence in responding to the court’s concerns and addressing that issue left it with the consequence of an inability to take those depositions prior to the disposition of the summary judgment motion. The district court did not abuse its discretion in its case management decision that had been clearly communicated to Helping Hand and its holding Helping Hand to its own choices, particularly where the only action requested of Helping Hand was to inform the court as to its plan to address the prosecution of the case against the remaining defendants.  Accordingly, the decision of the district court is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kelly Fuery, et al. v. City of Chicago, et al.

Case No.: 16-3786

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

Focus: Court Error – Abuse of Discretion

After a contentious trial, the district court, after assessing the plaintiffs’ contumacious conduct, asserted its inherent authority to set aside a jury verdict in favor of one plaintiff and entered judgment for the defendants on all claims. The plaintiffs challenge the limits of the judge’s inherent authority to set aside a verdict. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anthony Johnson v. Edward Winstead, et al.

Case No.: 16-2372

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

Focus: 5th Amendment Violation

On December 5, 2003, Chicago Police Detectives James Las Cola and Edward Winstead questioned Anthony Johnson in separate interviews about his involvement in the shooting death of Brandon Baity two months earlier. Johnson admitted to each detective that he drove the shooter to and from the scene but claimed not to know anything about his plan to kill Baity. State prosecutors charged Johnson for Baity’s murder under an accountability theory. He was twice tried and convicted.

Johnson moved to suppress his statements based on noncompliance with Miranda. The trial judge denied the motion. The case proceeded to trial in October 2007, and Detectives Las Cola and Winstead testified about Johnson’s statements. The jury found him guilty, but the Illinois Appellate Court reversed based on an instructional error and remanded for a new trial. At the second trial in March 2012, the detectives repeated their testimony about Johnson’s statements. Once again Johnson was convicted, but the appellate court again reversed, this time based on insufficient evidence to support accountability liability.

We reverse in part. Heck blocks a § 1983 claim that necessarily implies the invalidity of a criminal conviction unless the plaintiff can show that the conviction has already been invalidated. As a corollary to that rule, if a claim is Heckbarred, accrual is deferred until the conviction is overturned. An officer’s failure to give Miranda warnings is not itself a constitutional violation; rather, a Fifth Amendment violation occurs when an accused’s unlawfully obtained confession is introduced as evidence to convict him in a criminal case. Johnson seeks damages arising from the admission of his (allegedly) unwarned statements at trial, resulting in two wrongful convictions. Claims of this kind necessarily imply the invalidity of the convictions, so Heck’s rule of deferred accrual applies.

Even so, to the extent Johnson seeks damages stemming from the first conviction, the claims are time-barred. That conviction was reversed in 2010, starting the two-year limitations clock. So the suit is untimely as to those claims. But the claims for alleged Fifth Amendment violations in the second trial are timely. That conviction was reversed in 2014, and Johnson sued less than a year later.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jaboree Williams

Case No.: 18-1002

Officials: MANION and BARRETT, Circuit Judges, and GETTLEMAN, District Judge.

Focus: Court Error – Expert Testimony

Jaboree Williams argues that his conviction was tainted by improperly admitted expert testimony. He maintains that the government violated the expert disclosure rules by giving him inadequate notice of what its expert planned to say at trial. Moreover, he says that the government used the expert’s testimony to make an argument that the Federal Rules of Evidence prohibit: that he had the character of a sex trafficker and was therefore likely to have committed sex‐trafficking crimes.

While the government did not violate the rules prohibiting the use of character evidence, it probably did violate the expert disclosure requirement. Nonetheless, we affirm Williams’ conviction because any error was harmless. The evidence of his guilt was so overwhelming that the jury would surely have convicted him even if the government’s expert had not testified.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Sean C. Walker v. Nancy A. Berryhill

Case No.: 17-3391

Officials: WOOD, Chief Judge, and SCUDDER and ST. EVE, Circuit Judges.

Focus: ALJ Error – Disability

Sean Walker has degrees in robotics and electrical engineering and worked for 21 years, primarily as an engineer, before suffering a stroke in 2008. Walker tried but was not able to return to work after his stroke. Medical records show that his physical and cognitive condition has gradually worsened since 2008. In a separate proceeding, the Social Security Administration determined that Walker became disabled as of December 2014. Before us in this appeal is the question of Walker’s disability status at an earlier point in time, from his stroke in January 2008 to December 2014. Here, an ALJ, though recognizing the agency’s prior finding of disability as of December 2014, determined that Walker was not disabled before that date, and the district court affirmed. We vacate and remand, as the ALJ’s conclusion sweeps too broadly by not accounting for medical and other evidence strongly suggesting that Walker’s condition and residual functional capacity had worsened to such a degree that he become disabled by approximately the middle of 2012.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Leta Penrod, et al. v. Nancy A. Berryhill

Case No.: 17-2973

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

Focus: ALJ Error – Disability

Leta Penrod brings this appeal on behalf of her deceased husband, Tod Penrod, who before his death applied for disability insurance benefits based on various impairments, including arthritis, diabetes, and high blood pressure. An administrative law judge determined that, despite these impairments, Penrod retained the capacity to work through his last insured date. Because substantial evidence supports that decision, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kimberly A. Moreland v. Kirstjen M. Nielsen

Case No.: 17-3113

Officials: KANNE, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Title VII Violation

Kimberly Moreland appeals the entry of summary judgment in her suit under Title VII against the Department of Homeland Security. The Department did not pay for her time and expenses when she testified at a hearing on an earlier discrimination charge, but it did reimburse two employees who testified for the Department. Moreland contends that the Department’s decision not to pay her was retaliatory.

We affirm the district court’s judgment because Moreland failed to provide evidence that she suffered an adverse action, and in any case she did not rebut the Department’s legitimate reason for not reimbursing her.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Matthew Elder

Case No.: 17-2207

Officials: FLAUM and RIPPLE, Circuit Judges, and GETTLEMAN, District Judge.

Focus: Sentencing Guidelines

In 2015, Matthew Elder was convicted of conspiring to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. At his first sentencing, the district court concluded that Mr. Elder was subject to a mandatory term of life imprisonment under § 841(b)(1)(A) because he had two prior “felony drug offense” convictions. We remanded for resentencing because we concluded that one of his prior convictions did not qualify as a felony drug offense as that term is defined by 21 U.S.C. § 802(44). We also directed the district court to decide whether his second prior conviction, from Arizona in 1999, qualified. United States v. Elder (Elder I), 840 F.3d 455, 462 n.2 (7th Cir. 2016).

At Mr. Elder’s second sentencing, the district court concluded that the second of Mr. Elder’s prior convictions qualified as a felony drug offense under § 841(b)(1)(A) and, accordingly, that Mr. Elder was subject to a mandatory minimum sentence of twenty years’ imprisonment. The district court calculated Mr. Elder’s guidelines range to be 324 to 405 months’ imprisonment and sentenced Mr. Elder below the guidelines range to 260 months’ imprisonment. Mr. Elder now appeals his new sentence.

For the reasons stated in this opinion, we agree with Mr. Elder that the 1999 Arizona conviction is not a “felony drug offense” as defined by § 802(44). We therefore issue a limited remand under United States v. Paladino, 401 F.3d 471, 483–84 (7th Cir. 2005), to permit the district court to determine whether this error was harmless.

Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Tyrone Miller

Case No.: 17-3514

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

Focus: Sufficiency of Evidence

Tyrone Miller was arrested after police found him unconscious behind the wheel of his car, which he had crashed into a street light. At the jail, an officer pulled him from the squad car and found a handgun on the floor where his feet had been. A jury found Miller guilty of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1), and he was sentenced to 87 months in prison. On appeal, he argues that his conviction is not supported by sufficient evidence, and that his sentence is based on an erroneous understanding of his criminal history. We affirm Miller’s conviction but vacate his sentence because it is based on an inaccurate count of his past felony convictions.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Eric Koty v. DuPage County, Illinois

Case No.: 17-3159

Officials: RIPPLE, KANNE, and BRENNAN, Circuit Judges.

Focus: ADA Violation

Eric Koty, a deputy in the DuPage County Sheriff’s Department, requested a different model of squad car. Notes from Koty’s physician indicated Koty should be given a squad car with more legroom, “like an SUV,” to accommodate a hip condition. The Department denied Koty’s requests. Koty then submitted EEOC complaints alleging the Department had discriminated against him in violation of the Americans with Disabilities Act (“ADA”). Shortly thereafter, the Department reassigned Koty to court‐house duty, for which he would not need to drive a squad car. Koty then sued DuPage County alleging that the Department violated the ADA when it denied his request for an SUV and that the Department wrongfully retaliated against him for making the EEOC complaint. The district court found no such violations and granted summary judgment for the County. For the reasons that follow, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: BRC Rubber & Plastics, Incorporated v. Continental Carbon Company

Case No.: 17-2783

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

Focus: Breach of Contract

This case involves a contract dispute over the sale and purchase of carbon black, an important ingredient in rubber products. BRC Rubber & Plastics, Inc. (“BRC”) seeks to recover from Continental Carbon Co. (“Continental”) costs that it incurred in purchasing carbon black from another supplier following Continental’s alleged repudiation of the parties’ supply agreement.

Initially, BRC claimed that the agreement was a requirements contract, i.e., a supply agreement in which Continental promised to provide all of the carbon black that BRC required. Because Continental failed to do so, the district court awarded summary judgment to BRC.

In a prior appeal, we rejected the characterization of the agreement as a requirements contract and, therefore, vacated the judgment. In remanded proceedings, BRC, without amending its complaint, pursued the alternative theory that the agreement is for the supply of a fixed amount of carbon black. The district court granted summary judgment to Continental for two reasons: BRC’s complaint failed to state a claim for relief under any theory of the agreement other than as a requirements contract; in the alternative, the agreement is unenforceable for a lack of mutuality and consideration.

BRC now appeals. For the reasons set forth in this opinion, we conclude that the parties’ agreement is enforceable and that BRC can proceed on its alternative characterization of the contract as an agreement for a fixed amount of carbon black. We, therefore, reverse and remand the case for proceedings consistent with this opinion

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Naperville Smart Meter Awareness v. City of Naperville

Case No.: 16-3766

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

Focus: 4^th Amendment Violation

The City of Naperville owns and operates a public utility that provides electricity to the city’s residents. The utility collects residents’ energy-consumption data at fifteen-minute intervals. It then stores the data for up to three years. This case presents the question whether Naperville’s collection of this data is reasonable under the Fourth Amendment of the U.S. Constitution and Article I, § 6 of the Illinois Constitution.

Naperville could have avoided this controversy—and may still avoid future uncertainty—by giving its residents a genuine opportunity to consent to the installation of smart meters, as many other utilities have. Nonetheless, Naperville’s warrantless collection of its residents’ energy-consumption data survives our review in this case.

Even when set to collect readings at fifteen-minute intervals, smart meters provide Naperville rich data. Accepting Smart Meter Awareness’s well-pled allegations as true, this collection constitutes a search. But because of the significant government interests in the program, and the diminished privacy interests at stake, the search is reasonable. We therefore AFFIRM the district court’s denial of leave to amend.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Daniel Martinez v. City of Chicago, et al.

Case No.: 17-1888

Officials: RIPPLE, KANNE, and BRENNAN, Circuit Judges.

Focus: Malicious Prosecution Claim

In 2012, Chicago Police Department officers arrested Daniel Martinez during a search of his home. They charged him with resisting arrest and obstruction of justice, but a jury acquitted him. He subsequently brought this action under 42 U.S.C. § 1983, alleging that the officers had violated the First and Fourth Amendments of the Constitution of the United States, as made applicable to the states by the Fourteenth Amendment, when they entered and searched his home and seized him. He also alleged that the officers had committed the state tort of malicious prosecution. The jury found for the defendants on all claims. Mr. Martinez unsuccessfully sought judgment as a matter of law and a new trial. The district court entered judgment for the defendants, and Mr. Martinez now appeals. Because we believe that there was sufficient evidence to support the jury verdict and because Mr. Martinez failed to carry his burden of demonstrating the need for a new trial, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Elliott D. Levin, et al. v. William I. Miller, et al.

Case No.: 17-1775

Officials: KANNE and SYKES, Circuit Judges, and DARROW, District Judge.

Focus: Bankruptcy – Breach of Fiduciary Duty

Irwin Financial Corporation was a holding company for two banks that failed in the wake of the 2007–2008 financial crisis. When the crisis began, regulators and Irwin’s outside legal counsel both advised the company to buoy up its sinking subsidiaries. Irwin’s Board of Directors therefore instructed the officers to do everything they could to save the banks. The officers tried to raise capital and applied for government aid, but the chances of success were slim. Private investors showed little interest in the company, and federal regulators signaled that a bailout was unlikely.

A small glimmer of hope flickered in 2009: Irwin received a $76 million tax refund. The Board authorized Irwin’s officers to transfer the refund to the subsidiary banks and for good reason: The Board believed that the refund legally belonged to the banks and hoped the cash infusion would keep them above water long enough for help to arrive. But the refund was not enough to save the day. Management could not raise sufficient capital, the hoped-for government relief never materialized, the banks failed, and Irwin filed for bankruptcy.

Elliott Levin was appointed as Chapter 7 trustee for Irwin’s bankruptcy estate, and he promptly filed suit against three of Irwin’s former officers. The suit alleged, among other things, that the officers breached their fiduciary duty to provide the Board with material information concerning the tax refund. Levin’s legal theory rested on an elaborate chain of assertions. He claimed the officers should have known the banks were going to fail, so they should have investigated alternatives to transferring the tax refund— specifically, an earlier bankruptcy—despite the Board’s clear directive to support the banks. Had the officers done so, they would have discovered that Irwin might be able to claim the $76 million tax refund as an asset in bankruptcy. And if the officers had presented this information to the Board, the Board would have declared bankruptcy before transferring the refund to the banks, thereby maximizing the holding company’s value for creditors.

The district judge didn’t buy Levin’s speculative theory and neither do we. Corporate officers have a duty to furnish the Board of Directors with material information, but that duty is subject to the Board’s contrary directives. The record clearly establishes that on the advice of government regulators and expert outside legal counsel, the Board had prioritized saving the banks. The officers had no authority to second-guess the Board’s judgment with their own independent investigation. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Volney McGhee v. Cameron Watson, Warden,

Case No.: 15-3881

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

Focus: Ineffective Assistance of Counsel

In 2002 an Illinois jury convicted Volney McGhee of murder and attempted murder after he shot two men outside a Chicago gas station. McGhee’s defense attorney asked the trial judge to poll the jury after the guilty verdict was read. The judge said, “[a]ll right,” but inexplicably did not conduct the poll. Instead, he simply thanked the jurors and dismissed them. That was error: In Illinois a criminal defendant “has the absolute right to poll the jury after it returns its verdict.” People v. McGhee, 964 N.E.2d 715, 719 (Ill. App. Ct. 2012). Yet defense counsel did not object when the judge moved directly to his closing remarks without conducting the poll. Nor did he raise the issue in a posttrial motion. McGhee’s appellate lawyer likewise failed to challenge the error on direct review.

McGhee’s conviction was affirmed on appeal and in state collateral review. He then sought habeas relief under 28 U.S.C. § 2254. The district judge denied the petition. On appeal McGhee raises three claims under Strickland v. Washington, 466 U.S. 668 (1984), related to the judge’s failure to poll the jury: (1) his trial counsel was ineffective for failing to object to the judge’s jury-polling error; (2) his appellate counsel was ineffective for failing to raise the judge’s error on appeal; and (3) his appellate counsel was ineffective for failing to challenge trial counsel’s failure to preserve the polling error.

McGhee’s first two claims are waived because he did not present them in his § 2254 petition. The third is procedurally defaulted. McGhee failed to present it through one complete round of state-court review, and the ineffective assistance of postconviction counsel is not cause to excuse a defaulted claim that appellate counsel was constitutionally ineffective. Davila v. Davis, 137 S. Ct. 2058, 2063 (2017). We therefore affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Peggy Berg v. Social Security Administration

Case No.: 17-2389

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

Focus: Bankruptcy – SSA Payments

Shortly before Peggy Berg filed a petition for bankruptcy, the Social Security Administration (“SSA” or “Agency”) reduced the payment of a back-award that it owed to her by the amount of an earlier overpayment that Berg owed to the Agency. Berg contested this setoff because it was taken during the ninety-day period before the filing of her bankruptcy petition. The bankruptcy court concluded that SSA permissibly recovered $17,385 of its overpayment but impermissibly improved its position by $2,015, and ordered the Agency to return that amount to Berg. This court granted a petition to file a direct appeal from the bankruptcy court. We now affirm the judgment of the bankruptcy court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. David Watson

Case No.: 17-1651

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

Focus: Suppression of Evidence – Unreasonable Seizure – Firearm

The police received an anonymous 911 call from a 14‐year‐old who borrowed a stranger’s phone and reported seeing “boys” “playing with guns” by a “gray and greenish Charger” in a nearby parking lot. A police officer then drove to the lot and blocked a car matching the caller’s description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), but preserved for appeal his argument that the court should have suppressed the gun because the stop lacked reasonable suspicion.

We agree with Watson that the police did not have reasonable suspicion to block the car. The anonymous tip did not justify an immediate stop because the caller’s report was not sufficiently reliable. The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful. We therefore vacate the judgment and remand for further proceedings.

Vacated

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7^th Circuit Court of Appeals

Case Name: Volney McGhee v. Cameron Watson,

Case No.: 15-3881

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

Focus: Ineffective Assistance of Counsel

In 2002 an Illinois jury convicted Volney McGhee of murder and attempted murder after he shot two men outside a Chicago gas station. McGhee’s defense attorney asked the trial judge to poll the jury after the guilty verdict was read. The judge said, “[a]ll right,” but inexplicably did not conduct the poll. Instead, he simply thanked the jurors and dismissed them. That was error: In Illinois a criminal defendant “has the absolute right to poll the jury after it returns its verdict.” People v. McGhee, 964 N.E.2d 715, 719 (Ill. App. Ct. 2012). Yet defense counsel did not object when the judge moved directly to his closing remarks without conducting the poll. Nor did he raise the issue in a posttrial motion. McGhee’s appellate lawyer likewise failed to challenge the error on direct review.

McGhee’s conviction was affirmed on appeal and in state collateral review. He then sought habeas relief under 28 U.S.C. § 2254. The district judge denied the petition. On appeal McGhee raises three claims under Strickland v. Washington, 466 U.S. 668 (1984), related to the judge’s failure to poll the jury: (1) his trial counsel was ineffective for failing to object to the judge’s jury-polling error; (2) his appellate counsel was ineffective for failing to raise the judge’s error on appeal; and (3) his appellate counsel was ineffective for failing to challenge trial counsel’s failure to preserve the polling error.

McGhee’s first two claims are waived because he did not present them in his § 2254 petition. The third is procedurally defaulted. McGhee failed to present it through one complete round of state-court review, and the ineffective assistance of postconviction counsel is not cause to excuse a defaulted claim that appellate counsel was constitutionally ineffective. Davila v. Davis, 137 S. Ct. 2058, 2063 (2017). We therefore affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Marcus Muhammad, et al. v. Del Pearson, Police Officer #16462

Case No.: 15-3044

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

Focus: 4th Amendment Violation – Unlawful Entry

When Officer Del Pearson and other Chicago police officers executed a search warrant for “apartment 1” at a Chicago address, there was a problem with the warrant. Apartment 1 did not exist. The building contained an apartment 1A and an apartment 1B. Pearson and the other officers actually searched apartment 1A. They did not find the drugs and related items they were seeking. The occupants of apartment 1A then filed this suit against Officer Pearson under 42 U.S.C. § 1983 for violating their Fourth Amendment rights through unlawful entry and false arrest. Both sides moved for summary judgment. The district court denied plaintiffs’ motion and granted Pearson’s. We affirm the judgment but on narrow grounds. Law enforcement officers who discover that a search warrant does not clearly specify the premises to be searched must ordinarily stop and clear up the ambiguity before they conduct or continue the search. See Maryland v. Garrison, 480 U.S. 79, 86 (1987); United States v. Kelly, 772 F.3d 1072, 1083 (7th Cir. 2014). If they do not, they may lose the legal protection the warrant provides for an invasion of privacy and accompanying restraints on liberty.

As we explain below, however, we conclude that summary judgment for the officer was appropriate here. Defendant Pearson testified that he did not know there were two apartments, including an apartment 1B, and he has offered undisputed, reliable, and contemporaneous documents confirming his after-the-fact testimony that the address searched was in fact the correct target of the search authorized by the ambiguous warrant. Summary judgment on the unlawful entry claims was correct. Also, Officer Pearson had arguable probable cause to arrest plaintiff Muhammad for suspected drug trafficking, though Pearson quickly confirmed that Muhammad was not the right suspect and released him within fifteen minutes. Summary judgment based on qualified immunity was also correct on that unlawful arrest claim.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Laymon Quendell Price

Case No.: 2015AP2562-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Sufficiency of Evidence

Laymon Quendell Price appeals a judgment of conviction entered after a jury found him guilty of three counts of kidnapping by use of a dangerous weapon and five counts of first-degree sexual assault. He contends that the circuit court erroneously admitted other acts evidence at his trial. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Seth Z. Lehrke

Case No.: 2016AP1965-CR

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

Focus: Motion to Suppress – Miranda Waiver

Seth Lehrke appeals a judgment of conviction, entered following a jury trial, and an order denying his motion for postconviction relief. Lehrke contends the circuit court erred by denying his motion to suppress his confession because his Miranda waiver was not knowing and intelligent, and by excluding all portions of a SANE report, except for its medical conclusion. We agree with Lehrke on these issues. Accordingly, we reverse and remand for suppression of Lehrke’s confession and for a new trial.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Sammy Joseph Hadaway

Case No.: 2017AP1165-CR

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

Focus: Plea Withdrawal – Coram Nobis

Sammy Joseph Hadaway appeals the order denying his petition for a writ of coram nobis seeking to withdraw his plea.  On appeal, Hadaway contends that the postconviction court (1) applied an incorrect burden of proof in evaluating his petition, and (2) erred in applying case law regarding perjury as a basis for precluding coram nobis relief in this case. We agree and, therefore, we reverse the order and remand to the postconviction court with instructions to grant the writ of coram nobis, vacate the judgment, and allow Hadaway to withdraw his guilty plea.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dontre K. Johnson

Case No.: 2017AP1581

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

Focus: Ineffective Assistance of Counsel

Dontre Johnson appeals an order denying his WIS. STAT. § 974.06 (2015-16) motion for postconviction relief. Johnson claims he is entitled to a new trial because one of the jurors at his trial was objectively biased and because his trial attorney was ineffective by failing to question the potential jurors during voir dire about bias toward nontestifying defendants. Johnson also claims that his first postconviction attorney was ineffective by failing to investigate and discover the above issues regarding juror bias and ineffective assistance of trial counsel. Finally, Johnson argues he is entitled to a new trial in the interest of justice under WIS. STAT. § 752.35.

We conclude Johnson’s prior postconviction attorney was not ineffective by failing to investigate and discover the claims regarding juror bias and ineffective assistance of trial counsel that Johnson now raises in the present appeal. In light of that conclusion, we further conclude that Johnson’s juror bias and ineffective assistance of trial counsel claims are procedurally barred because he has not presented a sufficient reason for failing to raise them in the prior postconviction proceedings. We also conclude Johnson has failed to establish that he is entitled to a new trial in the interest of justice. We therefore affirm the order denying postconviction relief.
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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marquis D. Walls

Case No.: 2017AP1600-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: 5^th Amendment Violation

Marquis D. Walls appeals a judgment of conviction, entered on a jury’s verdict, for attempting to flee or elude a traffic officer.  He also appeals the denial of his postconviction motion.

On appeal, Walls contends that when he exercised his right of allocution at sentencing, the trial court violated his Fifth Amendment right against self-incrimination by pressuring him to admit guilt and then used his failure to do so to impose a harsher sentence. We conclude that the record establishes the following: (1) prior to sentencing Walls had already admitted that he was guilty of fleeing the police; (2) the trial court’s questions were directed towards obtaining information about Walls’ character; (3) the trial court properly considered the Gallion factors in sentencing Walls; and (4) Walls that the trial court imposed a harsher sentence because he failed to explain why he fled the police.  Therefore, we affirm.

The following facts provide context for the issues raised in this appeal. We refer to additional facts in the discussion.
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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marcia Render

Case No.: 2017AP1779-CR

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

Focus: Ineffective Assistance of Counsel

Marcia Render appeals a judgment of conviction, following a jury trial, of one count of second-degree reckless homicide—infliction of physical pain or injury, as an act of domestic abuse, and one count of strangulation and suffocation, as an act of domestic abuse. She also appeals the order denying her postconviction motion for relief on the basis of ineffective assistance of counsel. Because we conclude that Render is entitled to a Machner hearing, we reverse the postconviction order and remand for a Machner hearing.
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WI Court of Appeals – District II

Case Name: State of Wisconsin v. DeWayne D. Knight

Case No.: 2017AP366

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

Focus: Court Error – Abuse of Discretion

DeWayne Knight appeals pro se from a circuit court order denying his WIS. STAT. § 974.06 (2015-16) motion without a hearing. We conclude that the circuit court properly exercised its discretion when it denied Knight’s motion without a hearing because trial counsel was not ineffective for failing to object to the jury instruction on armed robbery and to the victim’s at trial identification of Knight. We affirm.
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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Altherelle T. Robbins

Case No.: 2017AP427-CR

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

Focus: Postconviction Motion Denied – Sentencing

Altherelle Robbins appeals from a judgment convicting him of first-degree recklessly endangering safety and possessing cocaine with intent to deliver and from an order denying his postconviction motion seeking resentencing. We affirm the circuit court’s discretionary decision to deny the request to adjourn sentencing and we affirm the sentence.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Tyler A. Montour

Case No.: 2017AP573-CR

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

Focus: Ineffective Assistance of Counsel

A jury convicted Tyler Montour of attempted first-degree intentional homicide and being a felon in possession of a firearm. Postconviction, Montour argued that his trial counsel was ineffective. After an evidentiary hearing, the circuit court concluded that counsel did not perform deficiently and was not ineffective. We agree and affirm the judgment of conviction and the order denying Montour’s postconviction motion.
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WI Court of Appeals – District II

Case Name: Carol M. Beck, et al. v. BidRX, LLC, et al.

Case No.: 2017AP2043

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

Focus: Sufficiency of Evidence

This is an appeal of a judgment in a garnishment action brought by Carol and Terrance Beck. Following a bench trial, the circuit court concluded that the Becks met their burden to prove fraudulent transfer under WIS. STAT. § 242.05(2) (2015-16) by BidRX, LLC to Fiscal Intermediary Third Party Funds Services, LLC (Fiscal). The court awarded judgment against both BidRX and Fiscal. While BidRX and Fiscal objected to the circuit court’s determination on multiple grounds, we agree with their contention that the evidence was insufficient to prove fraudulent transfer under § 242.05(2) because no evidence was introduced showing that the allegedly fraudulent transfers were made to satisfy an antecedent debt. Because this is a statutory element the Becks must prove, the judgment must be reversed. The circuit court’s judgment against BidRX was also improper because this is a garnishment action, BidRX was not a garnishee, and the Becks offer no statutory authority to support an award against BidRX in this case. For these reasons, we reverse.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: City of West Bend v. Erik J. Wille

Case No.: 2018AP151

Officials: REILLY, P.J.

Focus: OWI – Unlawful-stop Claim

Erik J. Wille appeals his conviction for operating a motor vehicle while under the influence of an intoxicant (OWI) and operating a motor vehicle with a prohibited alcohol concentration (PAC). Wille argues that City of West Bend police officer Timothy Behagen did not have reasonable suspicion to stop his vehicle in the drive-thru lane of Wendy’s restaurant following a report from the manager of Wendy’s that Wille and his passenger had open beers in their vehicle. As reasonable suspicion existed, we affirm.
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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Mark H. Malm

Case No.: 2015AP1339-CR

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

Focus: Abuse of Discretion – Postconviction Relief

Mark Malm appeals a judgment of conviction and an order denying his motion for postconviction relief. The issues relate to the circuit court’s rejection of the original proposed plea agreement and whether the court then participated in the plea negotiation.  Malm first argues that the circuit court erred by rejecting the original plea agreement without engaging in a proper exercise of discretion. The State does not attempt to defend the court’s initial rejection of the agreement, but instead argues that the court cured any error by exercising its discretion in response to the postconviction motion. Malm does not dispute that a court can properly rehabilitate its original plea rejection by properly deciding a postconviction motion. Accordingly, the issue narrows to whether the circuit court properly exercised its discretion in the postconviction decision. We affirm.
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WI Court of Appeals – District IV

Case Name: County of Lafayette v. Ian D. Humphrey

Case No.: 2016AP966

Officials: KLOPPENBURG, J.

Focus: Court Error – Fee Waiver – Default Judgment

Ian Humphrey appeals the judgment entered against him in the amount of $200.50 after he was found guilty following a court trial of operating a motor vehicle while suspended.  First, Humphrey argues that the circuit court erroneously denied his request for a jury trial. More specifically, Humphrey argues that the court did not give him the opportunity to correct his failure to support his request for a jury trial with an affidavit of indigency as required by WIS. STAT. § 814.29(1)(b). The record reflects that the court denied Humphrey’s request “for reasons stated on the record” at a hearing on March 8, 2016. However, as noted above, the record does not contain a transcript of that hearing. When the record is incomplete in regard to an issue on appeal, this court assumes that the missing material supports the circuit court’s ruling. See Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496 N.W.2d 226 (Ct. App. 1993). I rely on that assumption here and conclude that the circuit court properly denied Humphrey’s request for a jury trial.

Second, Humphrey argues that the circuit court erroneously entered a default judgment when in fact Humphrey was present at and participated in the trial. He argues that the default judgment resulted in the erroneous denial of his motion to waive fees for the production of transcripts, and that the default judgment will “harm [him] in the future.” His argument as to the effect of the default judgment on his fee-waiver motion fails because the apparent discrepancy between the default judgment and his appearance at trial was already addressed by this court in his first appeal, and our supreme court denied review; therefore, he cannot relitigate that issue in this appeal. See Univest Corp., 148 Wis. 2d at 38. His argument as to any future effect of the default judgment fails because it is speculative and undeveloped; therefore, I do not consider it further. See Associates Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App 300, ¶4 n.3, 258 Wis. 2d 915, 656 N.W.2d 56 (the court may decline to consider conclusory and undeveloped arguments). For the reasons discussed, I affirm the judgment.
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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Natalie N. Murphy

Case No.: 2017AP1559-CR

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Abuse of Discretion – Expert Testimony

Natalie Murphy was convicted at a jury trial of first-degree reckless homicide and second-degree recklessly endangering safety in the Juneau County Circuit Court. Murphy appeals her conviction, arguing that the circuit court erroneously exercised its discretion in making two evidentiary rulings. First, she contends that the circuit court erroneously exercised its discretion in excluding the testimony of her firearms expert. Second, Murphy argues that the circuit court erroneously exercised its discretion in not excluding the expert testimony of one of the State’s rebuttal witnesses.

We conclude that the circuit court properly exercised its discretion in excluding the testimony of Murphy’s proffered firearms expert. We also conclude that the circuit court properly exercised its discretion in overruling Murphy’s objection to the first question posed to the State’s expert on rebuttal, and that Murphy forfeited her opportunity to challenge on appeal the answer to the second question posed to the expert on rebuttal because she did not object to that particular question at the time it was posed. Accordingly, we affirm the rulings of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Ronnie Cecil Peebles

Case No.: 2017AP2536-CR

Officials: FITZPATRICK, J.

Focus: Abuse of Discretion – Motion for Continuance Denied

Ronnie Cecil Peebles was convicted of battery in the Waushara County Circuit Court. Peebles argues that the circuit court erroneously exercised its discretion in denying his request for a continuance of the jury trial. Peebles’ argument is rejected because the circuit court properly exercised its discretion in denying the request for the continuance, and Peebles has not shown that he was prejudiced in any way by the circuit court’s denial of his request. Accordingly, I affirm the decision of the circuit court.

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