Weekly Case Digests – January 4, 2019 – January 11, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Michael T. Bostock

Case No.: 18-1897

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

Focus: Sentencing Guidelines

Michael Bostock pleaded guilty to distributing methamphetamine and has been sentenced to 125 months’ imprisonment, which he contends is unreasonably high. The statute that forbids sales of this drug distinguishes by its purity. For example, for the purpose of selling minimum and maximum sentences, “50 grams or more of methamphetamine” is treated the same as “500 grams or more of a mixture or substance containing a detectable amount of methamphetamine”. 21 U.S.C. §841(b)(1)(A)(viii). The Sentencing Guidelines reflect this classification. The drug quantity table, U.S.S.G. §2D1.1(c), distinguishes among “Methamphetamine”, “Methamphetamine (actual)”, and “Ice”. Note (A) to this table says that “methamphetamine” is the weight of any mixture or substance containing a detectable amount of the controlled substance; Note (B) defines the “actual” variant as the weight of the controlled substance disregarding any contaminants or cutting agents; Note (C) defines “ice” as the weight of “a mixture or substance containing d-methamphetamine hydrochloride of at least 80% purity.” The Guidelines treat the “actual” and “ice” variants as ten times the weight of the detectable-quality variant. So, for example, §2D1.1(c)(5) provides that 500 grams to 1.49 kilograms of methamphetamine, 50 to 149 grams of methamphetamine (actual), and 50 to 149 grams of ice all produce an offense level of 30. Bostock, who concedes distributing 63.8 grams of ice, falls into this category. Given his criminal history category, the Guidelines recommended a sentence in the range of 130 to 162 months’ imprisonment.

It is not necessary to go through Bostock’s objections to the judge’s other statements. The bottom line is that she stuck with the distinction between “methamphetamine” and “ice,” as she was entitled to do. She gave Bostock an individualized sentence that depended substantially on his criminal history category of VI—the judge found him undeterrable, with crimes increasing in gravity after each release from prison—and the need to protect the community from high quality methamphetamine made in industrial laboratories in other places, which had become a plague after police managed to shut down most of the local manufacturers. Bostock should count himself fortunate, given the judge’s observations, that his sentence is below rather than above the range recommended by the Sentencing Commission.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Thomas C. Balsiger

Case No.: 17-1708

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

Focus: Sufficiency of Evidence

For his role in designing and implementing a scheme to defraud manufacturers that issue coupons for consumer products, a grand jury charged El Paso businessman Thomas Balsiger with 25 counts of wire fraud and conspiracy both to commit wire fraud and obstruct justice. A decade of litigation followed, culminating in a bench trial at which Balsiger represented himself with the assistance of stand-by counsel. The district court convicted Balsiger on 12 counts and sentenced him to 120 months’ imprisonment.

On appeal Balsiger argues the district court deprived him of his Sixth Amendment right to retain the counsel of his choice by failing to grant an 18-month continuance and by refusing to order the government to remove a so-called lis pendens on his home—a notice to potential buyers that title to the property might be impaired by the outcome of his criminal prosecution. He also contends the district court erred when, following the death of his attorney, it concluded he waived his right to counsel and required him, over his objection, to proceed pro se. Finally, Balsiger challenges the sufficiency of the evidence, venue, and several of the district court’s sentencing determinations. With the limited exception of the district court’s calculation of forfeiture, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: H.P. v. Naperville Community Unit School District # 203

Case No.: 18-2272

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges.

Focus: ADA Violation

The plaintiff H.P., a minor, through her father W.P., claims that the defendant Naperville Community Unit School District #203 violated H.P.’s rights under the Americans with Disabilities Act and the Rehabilitation Act by disallowing H.P. from completing high school in District #203 after she moved to another school district. In the case below, the district court granted summary judgment to the District and denied it to H.P. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Khalid Hamdan

Case No.: 18-1327

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

Focus: Abuse of Discretion – Evidentiary Ruling

Khalid Hamdan appeals his 2014 conviction on three counts related to his activities involving XLR-11, a Schedule I synthetic cannabinoid used to make the street drug “spice.” On appeal, Hamdan argues the district court abused its discretion by granting the government’s motion to quash Hamdan’s subpoenas of two Wisconsin state troopers. The troopers previously arrested and questioned Hamdan after a 2012 traffic stop where Hamdan possessed a different synthetic cannabinoid. According to Hamdan, this evidence would have supported his defense that he honestly believed synthetic cannabinoids were legal substances and he therefore lacked the requisite mens rea to commit the alleged crimes. Hamdan similarly argues that the district court abused its discretion in failing to grant his motion for a new trial because the district court’s evidentiary rulings jeopardized his right to present his theory of defense. Because the district court did not abuse its discretion, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Justin Kohl

Case No.: 18-2548

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines

Justin Kohl was convicted of three federal controlled substance offenses. At sentencing, the district court assigned Kohl criminal history category IV. The district court included one criminal history point for a 2016 conviction in Wisconsin for operating a vehicle with a detectable amount of a restricted controlled substance in his blood. Kohl argues that the district court erred by including the 2016 conviction because a first violation of the Wisconsin statute at issue does not carry a criminal penalty and should not have been counted. We disagree with Kohl’s interpretation of the Sentencing Guidelines and affirm the district court’s sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rhonda Kemper v. Deutsche Bank AG

Case No.: 18-1031

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

Focus: Anti-Terrorism Act

On May 16, 2009, U.S. Army Specialist David Schaefer, Jr., was killed by a roadside bomb while serving a tour of duty in Iraq. This litigation represents his mother’s attempt to hold someone responsible for the senseless loss of her son. It is easy to understand why she wishes to do so. But not everything is redressable in a court. Terrorist attacks such as the one that took Spc. Schaefer’s life often elude the conventional judicial system. Those directly responsible may be beyond the reach of the court, because they are unidentifiable, or because they are beyond the reach of the court’s personal jurisdiction, or because they themselves have come to a violent end. Secondary actors, such as the organizations that fund the terrorists, are often amorphous and difficult to hale into court. Finally, despite Congress’s effort to make state sponsors of terrorism accountable in U.S. courts, see 28 U.S.C. § 1605A, any resulting judgment may be uncollectible. See, e.g., Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018).

Rhonda Kemper attempted to get around these formidable obstacles by alleging that the bomb that killed her son was a signature Iranian weapon that traveled from the Iranian Revolutionary Guard Corps (“the Guard”) to Hezbollah to Iraqi militias, who then placed it in the ground in Basra, Iraq, where it killed Spc. Schaefer. Kemper asserts that Deutsche Bank AG, a German entity with U.S. affiliates, is responsible for her son’s death under the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333. She ties Deutsche Bank to the fatal bomb through the Bank’s alleged membership in an Iranian conspiracy to commit acts of terror. It joined that conspiracy, she contends, when it instituted procedures to evade U.S. sanctions and facilitate Iranian banking transactions.

The district court found that Kemper failed to plead facts that plausibly indicated that Deutsche Bank’s actions caused her son’s death. It thus dismissed her complaint for failure to state a claim. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Andrea Hirst, et al. v. SkyWest, Inc., et al.

Case No.: 17-3643; 17-3660

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

Focus: Fair Labor Standards Act Violation – Dormant Commerce Clause

In this case, a number of current and former flight attendants challenge an airline’s compensation policy of paying for their work in the air but not on the ground. Plaintiffs-appellants (“the Flight Attendants”) all work or worked for defendant-appellee SkyWest Airlines, Inc., an airline owned by co-defendant-appellee SkyWest, Inc. (collectively “SkyWest”). The Flight Attendants filed suit alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and various state and local wage laws, seeking to certify a class of similarly situated SkyWest employees. The district court dismissed the complaint in its entirety, finding that the Flight Attendants had failed to allege a FLSA violation, and that the dormant Commerce Clause barred the state and local claims.

The Flight Attendants plausibly allege they were not paid for certain hours of work. We agree with other federal circuits, however, that under the FLSA the relevant unit for determining a pay violation is not wages per hour, but the average hourly wage across a workweek. Because the Flight Attendants failed to allege even a single workweek in which one of them received less than the federal minimum wage of $7.25 per hour, we affirm the dismissal of those claims.

We do not agree, though, with the application of the dormant Commerce Clause in this case. States possess authority to regulate the labor of their own citizens and companies, so we apply that doctrine sparingly to wage regulations. The dormant Commerce Clause does not preclude state regulation of flight attendant wages in this case, particularly when the FLSA itself reserves that authority to states and localities. Accordingly, we reverse the dismissal of the state and local wage claims and remand for further proceedings.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Shane Crutchfield v. Jeff Dennison

Case No.: 16-1476

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

Focus: Ineffective Assistance of Counsel

Shane Crutchfield was charged with several Illinois drug crimes and faced enhanced penalties based on his lengthy criminal record. The prosecutor offered a plea deal that would have capped his sentence at 25 years, explaining that Crutchfield would have to serve 85 percent of that term under state law. Crutchfield’s attorney advised him of the offer but did not correct the prosecutor’s mistake: under Illinois good-time law, Crutchfield would have been eligible for release after serving 50 percent of his sentence, not 85 percent. Crutchfield rejected the deal. A jury found him guilty, and the judge imposed a 40-year sentence.

After direct appeal and two rounds of postconviction proceedings, Crutchfield filed for federal habeas review under 28 U.S.C. § 2254 claiming that his trial attorney’s flawed legal advice about the plea offer amounted to ineffective assistance in violation of his Sixth Amendment right to counsel under the rule of Strickland v. Washington, 466 U.S. 668, 687–88 (1984). He says he would have taken the deal if his attorney had correctly advised him about the good-time law. But he did not raise this claim on direct appeal or in his initial state postconviction proceeding. Instead, he belatedly presented it in a successive postconviction petition. Applying Illinois rules of procedural default, the state courts refused to hear the claim. The district judge denied § 2254 relief based on the unexcused procedural default.

Crutchfield concedes the default but asks us to hold that Illinois prisoners may use the Martinez–Trevino gateway to obtain review of defaulted claims of ineffective assistance of trial counsel. See Martinez v. Ryan, 566 U.S. 1 (2012); Trevino v. Thaler, 569 U.S. 413, 429 (2013). We decline to do so. Illinois does not impose the kind of restrictive procedural rules on Strickland claims to warrant application of the Martinez– Trevino exception. Because Crutchfield procedurally defaulted his Strickland claim and has not shown cause to excuse the default, we affirm the district court.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United States of America v. Raphael Campuzano-Benitez, et al.

Case No.: 18-1236; 18-1315

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

Focus: Sentencing Guidelines

Appellants Raphael Campuzano-Benitez and Uriel Soria-Ocampo pleaded guilty for their roles as middlemen in a cocaine deal. The formal charge was a conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846. Both men appeal their sentences. They argue that the district court erred on two sentencing guideline issues: the amount of cocaine the court attributed to them and their relative roles in the conspiracy. They also argue that the district court erred by allowing a witness to consult with his attorney during his testimony in the appellants’ joint evidentiary hearing for their sentencing. We affirm. The district court did not commit clear error in its findings on the amount of cocaine and roles in the offense, and the court did not abuse its discretion in allowing the witness to confer with his attorney.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Martinsville Corral, Inc., v. Society Insurance

Case No.: 18-1945

Officials: BAUER, ROVNER, and ST. EVE, Circuit Judges.

Focus: Insurance Claim- Coverage

Martinsville Corral, Inc. d/b/a Martinsville Texas Corral, Victor A. Spina, and William Spina (collectively, “MCI”), held a business owners insurance policy with an “Employment-Related Practices Liability Endorsement” (“Endorsement”) from Society Insurance (“Society”). When DirecTV sued MCI for publicly displaying its programming in MCI’s two restaurants without paying the commercial subscription rate, Society denied MCI’s claim. MCI sued Society for coverage, and the district court granted summary judgment for Society. MCI appeals the summary judgment order, limiting its appeal to the denial of coverage under the Endorsement only. For the following reasons, we affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Rick Ochoa, et al. v. State Farm Life Insurance Company, et al.

Case No.: 18-1336; 18-1338

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

Focus: Insurance Claim – Class Action – Dividend Provisions

Rick Ochoa and Irene Anderson hold participating life-insurance policies from State Farm Life Insurance Company and Country Life Insurance Company respectively. The policies guarantee policyholders annual dividends from their insurers’ surpluses, but the insurers decide the dividend amounts. Dissatisfied with their dividends, Ochoa and Anderson filed nearly identical class-action complaints claiming that the dividend provisions in their policies violate the Illinois Insurance Code. In a single decision, the district court dismissed the complaints. We consolidated the appeals and now affirm. Illinois requires only that life-insurance policies of this type contain a provision for policyholders to participate in their insurers’ surpluses. The policies at issue here contain such a provision.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Quawntay Adams v. United States of America

Case No.: 16-2177; 16-3578; 16-4207

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

Focus: Res Adjudicata – Lack of Jurisdiction

After losing his motion for postconviction relief under 28 U.S.C. §2255, Quawntay Adams filed a motion to reopen the proceedings in the district court under Federal Rule of Civil Procedure 60(b). Because we conclude that the motion under Rule 60(b) was merely an appeal of issues already addressed in the initial motion, it amounted to an unauthorized, second motion under 28 U.S.C. §2255 which the district court lacked jurisdiction to review. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Bruce Betzner, et al. v. The Boeing Company

Case No.: 18-2582

Officials: SYKES, BARRETT, and ST. EVE, Circuit Judges.

Focus: Sufficiency of Evidence

After Bruce and Barbara Betzner named Boeing as a defendant in their state court personal injury lawsuit, Boeing filed a notice of removal under the federal officer removal statute, 28 U.S.C. § 1442(a), alleging a government contractor defense. Three days later, the district court, sua sponte, remanded the lawsuit to state court for lack of subject-matter jurisdiction, and shortly thereafter, denied Boeing’s motion for reconsideration. On appeal, Boeing argues that the district court erred by requiring evidentiary submissions to support its notice of removal. Boeing further argues that it alleged sufficient facts to support federal officer removal under § 1442(a). We agree and reverse.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Stanley Hutchison v. Fitzgerald Equipment Company, Inc.

Case No.: 18-2203

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

Focus: Negligence Claim

A forklift backed over Stanley Hutchison’s foot while it was loading product onto his tractor‐trailer. Hutchison’s employer, who owned the forklift, had contracted with another company to provide maintenance on the forklift. Hutchison sued that third‐party servicing company, Fitzgerald Equipment Company, Inc. (“Fitzgerald”), alleging that Fitzgerald was negligent in failing to warn his employer to install a backup alarm on the forklift and was liable in concert with his employer for failing to install such an alarm. The district court granted Fitzgerald’s motion for summary judgment on the negligence claim and granted Fitzgerald’s motion to dismiss the in‐concert liability claim. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dylan Sinn v. Bruce Lemmon, Commissioner, et al.

Case No.: 18-1724

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

Focus: 8^th Amendment Violation

Plaintiff‐appellant Dylan Sinn was incarcerated within the Indiana Department of Corrections (“IDOC”) from June 2011 to February 2015. In 2014, while an inmate at Putnamville Correctional Facility (“Putnamville”), he suffered injuries from two separate assaults by other inmates. Sinn filed this lawsuit pursuant to 42 U.S.C. § 1983 against defendants‐appellees, various prison officials, alleging deliberate indifference in violation of the Eighth Amendment. Sinn appeals the district court’s decision to grant judgment on the pleadings as to Putnamville Sergeant Scott Rodgers and Putnamville Correctional Officer Paul Hoskins, as well as the district court’s decision to grant summary judgment as to John Brush, former Putnamville Unit Manager, Stanley Knight, former Putnamville Superintendent, and Bruce Lemmon, former IDOC Commissioner. We affirm the judgments of the district court in all respects except one: we reverse and remand the district court’s grant of summary judgment as to Brush.

Affirmed in part. Reversed and Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Gloria D. Terry v. Gary Community School Corporation

Case No.: 18-1270

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

Focus: Title VII Violation – Discrimination

For thirty-five years, plaintiff-appellant Gloria D. Terry worked as a teacher and an administrator for defendant-appellee Gary Community School Corporation (the “District”). At the end of the 2013–2014 school year, the District closed the elementary school where Terry served as the Principal because of declining enrollment. In turn, the District reassigned her to serve as the Assistant Principal at another elementary school. From Terry’s perspective, this reassignment was a demotion. Additionally, the District also picked a male employee over Terry for a separate promotion, even though Terry had earned the highest ranking of all the applicants from the interviewers.

These events motivated Terry to bring this lawsuit, alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Fourteenth Amendment via 42 U.S.C. § 1983; retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a); unequal pay in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1); and a violation of the Indiana Open Door Law, Ind. Code § 5-14-1.5- 1 et seq. Only Terry’s federal claims are at issue on appeal. The parties consented to referral to a magistrate judge who granted summary judgment in favor of the District on Terry’s federal claims. Terry appeals that decision, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Gregory J. Kuczora

Case No.: 17-2725

Officials: SYKES, BARRETT, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines

Gregory Kuczora falsely represented to unwary investors that he could help them secure millions of dollars in financing. In return they paid him large sums of money to cover fees, which Kuczora pocketed for personal use before disappearing. For this conduct he pleaded guilty to one count of wire fraud, and the district judge imposed an above-Guidelines prison sentence of 70 months. Kuczora argues that the judge did not adequately explain the upward variance and failed to give him advance notice of the grounds that supported it. He also argues that the sentence is substantively unreasonable.

We affirm. The district judge thoroughly explained his reasoning, and we have never held that a judge must give advance warning of an upward variance. To the contrary, every defendant is on notice that the court has the discretion to impose a sentence above, below, or within the Guidelines range based on the factors listed in 18 U.S.C. § 3553. Finally, the 70-month sentence is not substantively unreasonable. Although the Guidelines can be a rough approximation of what § 3553(a) warrants, the judge did not exceed his broad discretion in concluding that a heavier penalty was justified here.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kirk Horshaw v. Mark Casper, et al.

Case No.: 16-3789

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

Focus: 8^th Amendment Violation – Imminent Danger

On October 5, 2012, Kirk Horshaw was brutally beaten by other inmates at Menard Correctional Center, acting on the instructions of a gang leader who felt himself disrespected. The injuries were grave; Horshaw was lucky to survive and still suffers pain and the effects of brain trauma. Horshaw had been warned that an attack was in prospect; a few days (maybe weeks) before the attack he received an anonymous letter stating that he would be “eradicated” for disrespecting the gang’s leader. In this suit under 42 U.S.C. §1983 Horshaw contends that he gave Mark Casper, a guard, a letter describing this threat. Horshaw asserts that Casper promised to investigate yet did nothing. Horshaw also contends that he sent a note to Michael Atchison, then the prison’s warden, describing the threat and asking for protection.

The defendants concede that the attack occurred and that Horshaw’s injuries are serious. But both Casper and Atchison deny receiving these documents from Horshaw or having any other reason to think that he was in danger. Unless they knew that he was at serious risk, they cannot be liable. See Farmer v. Brennan, 511 U.S. 825 (1994).

Farmer holds that liability for failure to prevent one prisoner’s attack on another depends on proof that there was an objectively serious threat of which the defendant was subjectively aware (or to which the defendant was deliberately indifferent). 511 U.S. at 845–47. On the district court’s understanding, liability will be almost impossible, for prisoners do not threaten each other with the level of detail the judge demanded.

The district court’s judgment is vacated with respect to Casper and Atchison and affirmed with respect to the remaining defendants. The case is remanded for trial.

Affirmed in part. Vacated in part. Reversed and Remanded in part.

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Howard D. Davis

Case No.: 2017AP942-CR

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

Focus: Ineffective Assistance of Counsel

Howard D. Davis appeals from the judgment of conviction, following a jury trial, finding him guilty as a party to the crimes of first-degree reckless homicide and first-degree recklessly endangering safety, with both crimes having use of a dangerous weapon and repeat offender penalty enhancers. He also appeals the order denying his postconviction motion.

On appeal, Howard Davis argues that the trial court erred when it failed to conduct an evidentiary hearing on his claims of ineffective assistance of trial counsel and juror misconduct. More specifically, Howard Davis claims that trial counsel was ineffective because trial counsel (1) did not present purported alibi evidence, (2) did not obtain the testimony of a person who was present during the shooting, (3) did not adequately question a witness regarding the details of her prior convictions, (4) did not request the other acts jury instruction regarding rap lyrics, (5) did not request the other acts jury instruction regarding testimony that he failed to notify the police that a victim had shot him, (6) did not request the jury instruction addressing consideration received by a witness in exchange for testifying, and (7) did not request a jury instruction addressing the missing recording of that witness’s statement. He also asserts that the trial court (1) erred by applying an incorrect legal standard when it overruled trial counsel’s objection to the testimony of the witness whose recorded statement was missing, and (2) erred by denying his juror misconduct claim without an evidentiary hearing.

We are not persuaded. We conclude that Howard Davis did not allege sufficient facts regarding his ineffective assistance of trial counsel and juror misconduct claims that would entitle him to relief and, therefore, the trial court properly denied his motion without a hearing. We also conclude that Howard Davis did not preserve his claim that the trial court applied the wrong legal standard in overruling trial counsel’s objection to the testimony of the witness whose recorded statement was missing. Consequently, we affirm.

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WI Court of Appeals – District I

Case Name: M. Samir Siddique v. Board of Regents University of Wisconsin System, et al.

Case No.: 2017AP1443

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

Focus: Statutory Interpretation – WEAJA – Fee Award

814. Samir Siddique appeals an order denying his motion for costs and attorney fees under the Wisconsin Equal Access to Justice Act (WEAJA), WIS. STAT. § 814.245 (2015-16).

This case arises from Siddique’s conduct in the wake of a University of Wisconsin-Milwaukee (UWM) student government election in 2013 and sanctions that were imposed upon him for that conduct. Siddique appealed the imposition of the sanctions and when his appeals were denied, he commenced this action against the Board of Regents University Wisconsin System (the Board) and individuals associated with UWM in the Milwaukee County Circuit Court alleging three causes of action: (1) judicial review of the administrative decision imposing the sanctions; (2) civil rights violations; and (3) public records violations. While the action was pending, UWM voluntarily voided the sanctions and the action was dismissed as moot. Siddique challenges the trial court’s determinations that pursuant to the WEAJA he was not a prevailing party and that the Board was substantially justified in taking its position.

We conclude that because Siddique was not a prevailing party under the WEAJA he was not entitled to an award of fees under that statute. Therefore, we affirm.

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WI Court of Appeals – District III

Case Name: Michael Bukovic v. Labor and Industry Review Commission, CPF, Inc., et al,

Case No.: 2017AP1612

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

Focus: ALJ Error – Worker’s Compensation

Michael Bukovic appeals a circuit court judgment affirming a Wisconsin Labor and Industry Review Commission (LIRC) decision that affirmed an administrative law judge’s (ALJ) dismissal of Bukovic’s worker’s compensation application. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Damon L. Kell

Case No.: 2017AP1840-CR

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

Focus: OWI – Motion to Suppress Evidence Denied

Damon Kell appeals a judgment, entered upon his no-contest plea, convicting him of operating a motor vehicle while intoxicated (OWI), as a fourth offense within five years. Kell argues the circuit court erred by denying his suppression motion because law enforcement unlawfully stopped his vehicle. We reject Kell’s argument and affirm the judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Alexander M. Schultz

Case No.: 2017AP1977-CR

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

Focus: 5^th Amendment Violation – Double Jeopardy

He also appeals an order denying postconviction relief. The issue on appeal is whether the State’s prosecution of Schultz for sexually assaulting a child “on or about October 19, 2012” violated Schultz’s constitutional right to be free from double jeopardy because he was previously prosecuted for, and acquitted of, the repeated sexual assault of the same child “in the late summer to early fall of 2012.”

To resolve this issue, we must determine the proper test to ascertain the scope of jeopardy when it is unclear whether successive prosecutions are the same in fact. Schultz argues that we should look to a reasonable person’s understanding of the scope of jeopardy at the time jeopardy attached in the first prosecution, and disregard all proceedings after that time. The State responds that we should look to how a reasonable person would understand the scope of jeopardy in light of the entire record in the first prosecution, including the trial.

We agree with the State and conclude that the proper test to ascertain the scope of jeopardy is to look at the entire record in the first prosecution. We further conclude that a reasonable person familiar with the facts and circumstances of the entire record in the first prosecution against Schultz would understand “early fall of 2012” to mean no later than September 30, 2012. Accordingly, Schultz’s subsequent prosecution for a sexual assault on October 19, 2012, did not violate his constitutional right to be free from double jeopardy. We therefore affirm.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: Joan A. Kelly, et al. v. Amanda E. Berg, et al.

Case No.: 2017AP2033

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

Focus: Insurance Claim – Compensatory Damages

This case is before us for a second time. On June 16, 2011, Joan Kelly and her dog were attacked and seriously injured by a pit bull owned by Amanda Berg and Adam Finkler. Kelly sued Finkler, Berg, and Berg’s homeowner’s insurer, Manitowoc Mutual Insurance Company, and a jury awarded Kelly compensatory damages for her personal injuries. Berg and Manitowoc (collectively, Berg) appealed, arguing the circuit court erroneously exercised its discretion by instructing the jury on the common-law emergency doctrine and that the jury’s award of damages was excessive. We agreed that the emergency doctrine did not apply to the facts of the case and that the special verdict form was confusing with respect to Kelly’s damages for past pain, suffering, and disability. We therefore reversed the judgment against Berg. See Kelly v. Berg, 2015 WI App 69, ¶2, 365 Wis. 2d 83, 870 N.W.2d 481 (Kelly I).

On remand, the matter proceeded to a second trial, and a jury again awarded Kelly compensatory damages for her personal injuries. The jury also affirmatively answered two special verdict questions that rendered Berg liable for two times the full amount of damages awarded by the jury, pursuant to WIS. STAT. § 174.02(1)(b) (2013-14).  However, based on public policy concerns, the circuit court granted Berg’s motion after the verdict, and it changed the jury’s answers to these two questions from “yes” to “no.” Thus, the court effectively vacated the jury’s award of double damages to Kelly.

Kelly now appeals, arguing the circuit court erred by determining that public policy concerns justified overturning the jury’s answers to the two special verdict questions. Berg cross-appeals, arguing the court erred by allowing the two special verdict questions concerning double damages to go to the jury at all, because Kelly abandoned any claim for double damages by not seeking them at her first trial.

We conclude public policy concerns justify the denial of double damages to Kelly. We therefore affirm the judgment and order of the circuit court. Because we affirm the judgment and order of the court in Berg’s favor, Berg’s cross-appeal is moot.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jose A. Reas-Mendez

Case No.: 2017AP2452-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Postconviction Motion Denied

Jose A. Reas-Mendez appeals an order denying his 2017 postconviction motion for DNA testing of a jacket, a kitchen knife, and latent fingerprint cards containing fingerprints lifted from the outside window of the victim’s apartment. In 2008, Reas-Mendez was convicted by a jury of armed robbery with the threat of force, armed burglary with a dangerous weapon, and second-degree sexual assault with the use of force. The convictions were in connection with events that occurred in the early morning hours of May 20, 2008, when an intruder sexually assaulted and robbed a 21-year-old college student at knifepoint in her bed and then fled the apartment.  Reas-Mendez appealed the conviction, asserting that his trial counsel had been ineffective for failing to challenge the out-of-court identification procedures as impermissibly suggestive. State v. Reas-Mendez, No. 2010AP1485-CR, unpublished slip op. ¶12 (WI App Aug. 23, 2011). This court concluded that the “pretrial identification was proper” and affirmed. Id., ¶20.

The issue presented in this appeal is what the “reasonably probable” requirement of WIS. STAT. § 974.07(7)(a)2. means. Our supreme court interpreted the “reasonably probable” condition of the postconviction DNA testing statute in State v. Denny, 2017 WI 17, 373 Wis. 2d 390, 891 N.W.2d 144. Jeffrey Denny had sought postconviction DNA testing of twelve items found at the crime scene, and the question presented was whether “[i]t is reasonably probable that [Denny] would not have been prosecuted [or] convicted” of first-degree intentional homicide “if exculpatory [DNA] testing results had been available before the prosecution [or] conviction.” Id., ¶76. The court stated that it was to “assume for purposes of this analysis that if DNA testing were to occur, the results would be ‘exculpatory.’” Id.

Denny had argued that “[t]hree types of DNA test results would create a reasonable probability of a different result: DNA that matches a convicted offender; DNA that excludes Denny and [a co-defendant] on all items; or DNA on multiple items matching the same unknown third party.” Id. Our supreme court concluded that in light of the other evidence presented at trial, exculpatory results “may only reveal the identity of others who may have been involved” but that “[f]inding DNA from persons other than Denny—even convicted offenders—would not prove Denny’s innocence.” Id., ¶78. It concluded that “the absence of DNA belonging to Denny and [the co-defendant] would not be particularly compelling, either.” Id. “The idea that the DNA results Denny seeks would tip the scales and cause police or a jury to reject the substantial evidence against Denny is simply conjecture.” Id., ¶80. It therefore affirmed the order denying his motion.

This case presents the same question, and we apply the analytical framework set out by Denny. We start by assuming that the results of the testing of the jacket, knife, and latent prints would be “exculpatory” but we interpret what that assumption means in the context of the evidence in this case. We consider the evidence supporting Reas-Mendez’s conviction, including that he was found hiding in an attic of a building a hundred yards away from the victim’s apartment about eight hours after the crime, and, most significantly, that the victim positively identified him with certainty in a procedure that we previously ruled was not impermissibly suggestive. We conclude that in light of the strength of the evidence, even if DNA test results excluded him from all three items, it is not “reasonably probable” that Reas-Mendez would not have been prosecuted or convicted. See id., ¶53. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. William J. Smith

Case No.: 2018AP320-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Motion to Suppress Evidence Denied

William J. Smith appeals his judgment of conviction entered pursuant to his guilty pleas for possession of a firearm by a felon and possession of THC as a second and subsequent offense. Smith had moved the trial court to suppress the evidence against him on the grounds that he was illegally seized by officers when they initially made contact with him. The trial court denied the motion. We affirm.

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WI Court of Appeals – District III

Case Name: Troy Paulson v. Wisconsin Department of Natural Resources

Case No.: 2018AP696

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

Focus: Time-barred

Troy Paulson, pro se, appeals an order dismissing his lawsuit against the Wisconsin Department of Natural Resources (DNR). We conclude Paulson’s lawsuit was properly dismissed because he did not timely seek judicial review of the DNR’s decision denying him a permit to discharge fill material onto a wetland under WIS. STAT. ch. 227 (2015-16). As a result, the circuit court lacked competency to proceed to judgment on Paulson’s complaint. We therefore affirm the order dismissing Paulson’s lawsuit, albeit on different grounds than those relied upon by the circuit court.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Shawn A. Hodgkins

Case No.: 2017AP1799-CR

Officials: NEUBAUER, C.J.

Focus: Postconviction Motion Denied

Shawn A. Hodgkins appeals from a judgment of conviction and an order denying his postconviction motion, arguing that the judgment should be amended to stay the collection of court costs until his probation begins and that his prison sentence should be reduced in light of the victim’s postsentencing letter requesting a reduced sentence to allow Hodgkins to help parent their child. We affirm, concluding that Hodgkins failed to exhaust his administrative remedies regarding his cost claim and that the victim’s postsentencing request is not a new factor to support a reduced sentence.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jason D. Barnhill

Case No.: 2017AP2230-CR

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

Focus: Sentence Modification

Jason D. Barnhill appeals from a judgment of conviction and an order denying his motion for sentence modification. He contends that the circuit court should have suppressed his statement to police. He further contends that his postsentencing testimony at the trial of his accomplice constituted a new factor. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Winnebago County v. A.A.

Case No.: 2018AP1505-FT

Officials: NEUBAUER, C.J.

Focus: Prisoner Involuntary Commitment – Extension

A.A. appeals from an order extending his involuntary commitment, asserting his original commitment had already expired by the time of the extension, thus depriving the circuit court of competency to make the extension. We conclude A.A.’s original commitment had not expired, having been extended by his demand for a jury trial, and the court therefore retained competency. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Mariano Cabrera

Case No.: 2017AP2234-CR

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

Mariano Cabrera appeals his judgments of conviction and an order denying his postconviction motion for resentencing in these consolidated appeals. On appeal, Cabrera argues that he received ineffective assistance of counsel and should be granted a new sentencing hearing. We reject Cabrera’s argument and affirm the judgments and order of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kristy L. Malnory

Case No.: 2018AP216-CR

Officials: SHERMAN, J.

Focus: Ineffective Assistance of Counsel

Kristy Malnory appeals a judgment of conviction following a jury trial for operating a motor vehicle with a prohibited alcohol concentration (PAC), second offense, contrary to WIS. STAT. § 346.63(1)(b), and an order denying her postconviction motion for a new trial on the ground of ineffective assistance of counsel. Malnory contends that her trial counsel was ineffective in failing to challenge the admissibility of a Blood/Urine Analysis report and the testimony of the individual who performed the analysis of her blood samples. For the reasons discussed below, I affirm.

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WI Court of Appeals – District IV

Case Name: Ray A. Peterson v. Stanley Beatty, et al.

Case No.: 2018AP1417

Officials: KLOPPENBURG, J.

Focus: Frivolous Appeal

Ray Peterson filed this small-claims action in which he (1) alleged that Stanley Beatty, doing business as Abner Boiler and Heating Company, was responsible for the failure of a boiler approximately one year after Beatty installed the boiler, and (2) sought reimbursement of the cost to replace that boiler. After a trial to the circuit court, the court found that Peterson “[had] not met [his] burden of proof” and dismissed the case. Peterson challenges the court’s finding on appeal. Beatty moves for costs and fees as allowed for a frivolous appeal under WIS. STAT. RULE 809.25(3). For the reasons stated below, I affirm the circuit court’s decision. I also grant Beatty’s motion and I remand to the circuit court for an assessment of costs and fees.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Daniel Parks

Case No.: 2018 WI 110

Focus: Attorney Disciplinary Hearing

Attorney Daniel Parks has appealed a report filed by Referee William Eich concluding that Attorney Parks committed eight of 14 alleged counts of professional misconduct and recommending that Attorney Parks’ license to practice law in Wisconsin be suspended for 14 months, rather than the two-year suspension sought by the Office of Lawyer Regulation (OLR). The referee considered Attorney Parks’ objection to costs and recommends we impose the full costs of this proceeding on Attorney Parks. The OLR did not seek restitution and the referee did not recommend a restitution award.

In his appeal, Attorney Parks argues that the evidence was insufficient to support many of the referee’s factual findings and all of the referee’s conclusions determining misconduct. Attorney Parks argues further that even if the referee’s conclusions are upheld, the violations only support a license suspension of, at most, less than six months.

Upon careful review of this matter, we uphold all of the referee’s findings of fact and conclusions of law and conclude that a 14-month suspension of Attorney Parks’ license to practice law is an appropriate sanction for his misconduct. We also deny Attorney Parks’ objection to costs. We see no reason to deviate from our usual custom, which is to require an attorney who has committed misconduct to pay the full costs of the proceeding, which are $42,226.26 as of July 6, 2018. The OLR did not seek restitution and no restitution is ordered.

Ordered

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: United States v. Stitt

Case No.: 17-765

Focus: Statutory Interpretation – Armed Career Criminal Act

The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term. The judge is to impose that special sentence if the offender also has three prior convictions for certain violent or drug-related crimes. 18 U. S. C. §924(e). Those prior convictions include convictions for “burglary.” §924(e)(2)(B)(ii). And the question here is whether the statutory term “burglary” includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. We hold that it does.

We reverse the judgment of the Sixth Circuit Court of Appeals. We vacate the judgment of the Eighth Circuit Court of Appeals and remand the case for further proceedings consistent with this opinion.

Vacated in part. Reversed and Remanded in part.

Dissenting:

Concurring:

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