Weekly Case Digests – April 15, 2019 – April 19, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Maurice Walker

Case No.: 18-2825

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

Focus: Sentencing Guidelines

A grand jury indicted Maurice Walker on one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). During his detention awaiting trial, the Government discovered that Mr. Walker, his associates, and a family member had bribed multiple witnesses to testify falsely on his behalf at his upcoming trial. The grand jury therefore returned a superseding indictment, which added one count charging Mr. Walker with conspiring to obstruct justice, in violation of 18 U.S.C. § 1512(k). He subsequently pleaded guilty to both counts of the superseding indictment. The district court imposed sentences of 80 months’ imprisonment for each count, to be served concurrently, and to be followed by a three-year term of supervised release. The district court recommended to the Bureau of Prisons (“BOP”) that Mr. Walker should not receive credit for time served prior to June 29, 2017, the date the superseding indictment was filed, because of his conduct leading to the addition of the obstruction of justice charge.

Mr. Walker now contends that the district court improperly left to the BOP the calculation of credit for his time served before trial. He also submits that he should receive credit for all the time he spent in custody between his arrest and the superseding indictment. For the reasons set forth in more detail in this opinion, we cannot accept these contentions; they are controlled by settled law. Congress has committed the responsibility for the calculation of credit for pretrial confinement to the BOP. The district court therefore lacked the authority to make such a determination. The court does have, however, the discretion to make a recommendation to the BOP as to whether pretrial credit is appropriate. The district court therefore acted well within its discretion when it made such a recommendation. We therefore affirm its judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Paul Regains v. City of Chicago

Case No.: 15-2444

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.

Focus: Time-barred

The Illinois Sex Offender Registration Act (SORA) requires sex offenders to register with the police. Because he did not have a permanent address (he was homeless), Paul Regains followed the instructions of officers who directed him to a local homeless shelter (which they listed on his registration as his permanent address), and to return for re‐registration in ninety days. When he appeared to report three months later, Chicago police officers arrested Regains on an “investigative alert,” because other officers had not been able to locate Regains at the address provided. Regains remained in custody seventeen months before the Illinois trial court found him not guilty of failing to a report a change of address.

Regains sued the City of Chicago under 42 U.S.C. § 1983, claiming that it violated his rights under the Due Process Clause of the Fourteenth Amendment. The district court dismissed the case under Federal Rule of Civil Procedure 12(b)(6), finding that either the claim was time‐barred under Illinois’ two‐year statute of limitations for personal injury claims, or that it was barred by this court’s decision in New‐ some v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001), abrogated by Manual v. City of Joliet, 137 S. Ct. 911 (2017) (“Manuel I”). The district court also found that the amended complaint lacked sufficient factual details to give the City fair notice, and that because Regains did not specifically identify a particular constitutional violation, the City could not be held liable under Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 692 (1978).  We reverse the district court’s decision that Regains’ claim was time‐barred, and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Trustees of Indiana University, et al. v. Terry Curry, et al.

Case No.: 18-1146; 18-1247; 18-1308

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

Focus: Statutory Interpretation

In Indiana “[a] person who intentionally acquires, receives, sells, or transfers fetal tissue commits unlawful transfer of fetal tissue, a Level 5 felony.” Ind. Code §35‐46‐5‐1.5(d). A federal district court held that several terms in this statute are unconstitutionally vague and that it must be treated as if it read: “A person who intentionally sells fetal tissue commits unlawful transfer of fetal tissue, a Level 5 felony.” 289 F. Supp. 3d 905, 934–35 (S.D. Ind. 2018). The district court also held that a definitional clause is invalid. As enacted, §35‐46‐5‐1.5(b) reads: “As used in this section, ‘fetal tissue’ includes tissue, organs, or any other part of an aborted fetus.” This must be treated as if it read: “As used in this section, ‘fetal tissue’ includes tissue or organs of an aborted fetus.” The district court thus held that the words “acquires”, “receives”, and “transfers”, and the phrase “any other part”, are too uncertain to have legal force. If that is right, then big chunks of the legal system are invalid, because those words are ubiquitous in statutes, regulations, and judicial opinions.

We conclude that the district court should have entered judgment in defendants’ favor. The injunction is reversed, and the case is remanded for that purpose.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: City of Chicago v. Shelly C. Moore, et al.

Case No.: 17-3630; 17-3663; 17-3664

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

Focus: Estate – Bankruptcy

An application for relief under Chapter 13 of the Bankruptcy Code transfers most of a debtor’s assets to the newly formed bankruptcy estate. 11 U.S.C. §§ 541, 1306. Property stays in the estate until the bankruptcy court confirms a plan of payment. Then, “[e]xcept as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor.” 11 U.S.C. §1327(b). This means that the debtor becomes personally responsible for the expenses of maintaining that property.

A case-specific order, supported by good case-specific reasons, would be consistent with §1327(b), but none was entered in any of these cases. Chicago therefore is entitled to the principal relief it seeks: an order restoring the estates’ assets to the debtors’ personal ownership. Chicago tells us that, if it receives that relief, we need not decide whether parking and moving-violation fines should be treated as administrative expenses. On this understanding, we bypass that subject.

Reversed

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7^th Circuit Court of Appeals

Case Name: Kreg Therapeutics, Inc. v. VitalGo, Inc.

Case No.: 17-3005; 17-3227

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

Focus: Breach of Contract

Kreg Therapeutics, Inc., a medical‐ supply company, contracted with VitalGo, Inc., maker of the Total Lift Bed® (or the “bed”), for exclusive distribution rights in several markets. A year and a half later, the arrangement soured. VitalGo told Kreg that it had not made the minimum‐purchase commitments required by the contract for Kreg to keep its exclusivity. Kreg thought VitalGo was wrong on the facts and the contract’s requirements. This lawsuit ensued.

In the district court, VitalGo did not make a strong showing in defending its case. The district court ruled during the summary‐judgment stage that VitalGo breached the agreement, and the court treated that ruling as established for the case. That left only Kreg’s damages. The case went to a bench trial, despite an eleventh‐hour request from VitalGo to have it dismissed on pleading grounds. After the bench trial, the district court ordered VitalGo to pay Kreg a little over $1,000,000 in lost‐asset damages and prejudgment interest.

VitalGo appeals, arguing that the district court made a host of reversible errors. We see none and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rickey I. Kanter v. William P. Barr, et al.

Case No.: 18-1478

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

Focus: 2^nd Amendment Violation

Rickey I. Kanter pleaded guilty to one count of mail fraud under 18 U.S.C. § 1341. Due to his felony conviction, he is prohibited from possessing a firearm under both federal and Wisconsin law. At issue in this case is whether the felon dispossession statutes—18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m)—violate the Second Amendment as applied to Kanter. Even if Kanter could bring an as applied challenge, the government has met its burden of establishing that the felon dispossession statutes are substantially related to an important government interest. We therefore affirm the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Annie Laurie Gaylor, et al. v.  Steven T. Mnuchin, et al.

Case No.: 18-1277; 18-1280

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

Focus: Statutory Interpretation – Establishment Clause

Since the Founders crafted the Religion Clauses of the First Amendment, courts have grappled with the “play in the joints” between them. Walz v. Tax Comm. of City of N.Y., 397 U.S. 664, 669 (1970). This case calls us to do so once more. Freedom From Religion Foundation (“FFRF”) claims that a longstanding tax code exemption for religious housing, 26 U.S.C. § 107(2) of the Internal Revenue Code, violates the Establishment Clause. The district court agreed. The U.S. Treasury Department and several intervening religious organizations ask us to reinstate the exemption, asserting that the survival of many congregations hangs in the balance. We must decide whether excluding housing allowances from ministers’ taxable income is a law “respecting an establishment of religion” in violation of the First Amendment.

Reversed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jaquel Elijah Simmons

Case No.: 2017AP1781-CR; 2017AP1782-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Sentencing Guidelines

Jaquel Elijah Simmons appeals judgments convicting him of possession of a firearm contrary to a court order, four counts of burglary as a party to a crime, and misdemeanor endangering safety by use of a dangerous weapon as an incident of domestic abuse. He also appeals orders denying his postconviction motions. Simmons argues: (1) the circuit court did not sufficiently explain why twenty years of initial incarceration was the minimum amount of confinement necessary to achieve its sentencing objectives; (2) his sentence is harsh and excessive; and (3) the circuit court’s condition of supervision that he have only third-party contact with his two young sons is unreasonable. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Steven Torrell Luckett

Case No.: 2017AP2111-CR

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

Focus: Due Process Violation

Steven Luckett appeals a judgment of conviction for attempted first-degree intentional homicide by use of a dangerous weapon and for second-degree recklessly endangering safety by use of a dangerous weapon, as well as an order denying his motions for postconviction relief and postconviction discovery. Luckett argues on appeal that: (1) he was denied due process because police failed to preserve a bed comforter as evidence; (2) he is entitled to an order for postconviction discovery permitting him access to the trial evidence and to conduct trace evidence testing of a bullet fragment recovered from his body; (3) anticipated testimony from an expert criminologist constitutes newly discovered evidence; and (4) his trial counsel was ineffective for not procuring the testimony of a firearms expert. We conclude Luckett is not entitled to relief, and, consequently, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Pablo Ruiz-Velez

Case No.: 2017AP2537

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

Focus: Ineffective Assistance of Counsel

Pablo Ruiz-Velez appeals an order denying his WIS. STAT. § 974.06 (2017-18) postconviction motion without a hearing. Ruiz-Velez claims his trial counsel performed deficiently by: (1) failing to present expert Richard A.P. evidence; and (2) failing to call an expert witness to rebut certain testimony provided by one of the State’s expert witnesses. He also claims his appellate counsel provided ineffective assistance by failing to raise these issues on direct appeal. We reject his arguments and affirm.

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WI Court of Appeals – District III

Case Name: Mary Elaine Heimer Paulson v. Erik P. Paulson

Case No.: 2018AP401

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

Focus: Divorce – Child Placement

Mary Paulson, pro se, appeals from an order that denied her second motion to remove her children from Wisconsin, transferred primary physical placement of the children to their father, Erik Paulson, and denied Mary’s motion for reconsideration of a prior order finding her in contempt. Mary also appeals from an order that denied her subsequent motion for reconsideration on these issues. Mary contends: (1) the circuit court failed to hold a timely hearing on her removal motion; (2) the court improperly limited her time and ability to present witnesses on the contempt matter; and (3) the court improperly modified the physical placement of the children without addressing all of the statutory factors. We reject each of Mary’s contentions and affirm the court’s orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jerry Simone Wilson

Case No.: 2018AP534

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

Focus: Abuse of Discretion – Newly Discovered Evidence

Jerry Simone Wilson appeals the order denying his motion for postconviction relief based on newly discovered evidence. Wilson was convicted of first-degree reckless homicide with use of a dangerous weapon and two counts of recklessly endangering safety with use of a dangerous weapon, following a jury trial.

Wilson argues that the postconviction court erroneously exercised its discretion when it denied his motion for a new trial based upon newly discovered evidence that could be provided by a witness who did not testify at trial. We conclude that the postconviction court properly determined that Wilson did not meet his burden of proving that he was not negligent in seeking that evidence. Therefore, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Praveen Kharb

Case No.: 2018AP584-CR

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

Focus: Plea Withdrawal

Praveen Kharb appeals a judgment convicting him of one count of first-degree sexual assault of a child under age thirteen and seven counts of possession of child pornography. He also appeals an order denying his motion for postconviction relief. Kharb argues he is entitled to withdraw his no contest pleas because a provision of his plea agreement concerning the waiver of his right to appeal was ambiguous; because the circuit court did not conduct an adequate colloquy regarding the appellate waiver provision; and because his trial attorneys were ineffective by failing to adequately explain the appellate waiver provision. In the alternative, Kharb argues either sentence modification or resentencing is warranted based on errors in the presentence investigation report (PSI). We reject Kharb’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Willie Dorice Ford, Jr.

Case No.: 2018AP797-CR

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

Focus: Newly Discovered Evidence

Willie Dorice Ford, Jr., pro se, appeals his judgment of conviction entered on a jury’s verdict finding him guilty of delivery of heroin weighing more than fifty grams, as a party to a crime. He also appeals an order of the circuit court denying his postconviction motion. Ford argues that he is entitled to a new trial based on newly discovered evidence; namely, affidavits from his mother and sister indicating that Ford had not been renting a room at his mother’s residence at the time it was searched, and that the heroin found there belonged to someone else, who is now deceased. Ford also argues that the circuit court erred in denying his pre-trial motion to suppress evidence discovered during a strip search of Ford; Ford asserts that it was an illegal body cavity search as opposed to a strip search.

Ford further argues that the circuit court demonstrated bias against him at sentencing in its comments regarding Ford’s role in a homicide for which he was acquitted. Finally, Ford contends that his trial counsel was ineffective for failing to call his mother and sister to testify at trial, failing to pursue an interlocutory appeal after his motion to suppress was denied, and failing to object to the circuit court’s comments about the homicide during his sentencing. The circuit court denied Ford’s postconviction motion without a hearing. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Rondale Darmon Tenner

Case No.: 2018AP1115-CR

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

Focus: Ineffective Assistance of Counsel

Rondale Darmon Tenner appeals his judgment of conviction entered on a jury verdict finding him guilty of first-degree reckless homicide while using a dangerous weapon, armed robbery, and possession of a firearm by a felon. He also appeals an order of the circuit court denying his postconviction motion.

Tenner argues that he received ineffective assistance from his trial counsel because counsel failed to impeach one of the State’s witnesses—Tenner’s former girlfriend—with her prior criminal convictions. Tenner further argues that he is entitled to a new trial based on newly-discovered evidence: an affidavit by an inmate stating that one of the witnesses to the shooting had allegedly confessed to committing the homicide himself.

After an evidentiary hearing on Tenner’s postconviction motion, the circuit court rejected Tenner’s claim of ineffective assistance of counsel, finding that trial counsel had made a reasonable strategic decision in not impeaching Tenner’s former girlfriend. The court also concluded that the inmate who said he heard the witness’s confession was not credible. The court therefore denied Tenner’s motion. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Antonio D. Shannon

Case No.: 2016AP2055

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

Focus: Ineffective Assistance of Counsel

Antonio D. Shannon appeals from orders denying his WIS. STAT. § 974.06 (2017-18) original and supplemental postconviction motions. He argues that he is entitled to a new trial (1) because his postconviction counsel provided ineffective assistance by failing to challenge the effectiveness of trial counsel’s performance, (2) based on newly discovered evidence, and (3) in the interest of justice. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Aaron B. Reigle

Case No.: 2018AP153-CR

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

Focus: Probable Cause

Aaron B. Reigle appeals a judgment, entered on his guilty plea, convicting him of possession of child pornography. He challenges the sufficiency of the search warrant leading to his arrest. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kwesi B. Amonoo

Case No.: 2017AP2142

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Abuse of Discretion – Newly Discovered Evidence

Kwesi B. Amonoo, pro se, appeals a circuit court order denying his fourth postconviction motion for a new trial under WIS. STAT. § 974.06 (2009-10). Amonoo argued in the motion that he was entitled to a new trial based on newly discovered evidence. On appeal, he argues that the circuit court erroneously exercised its discretion when it denied the motion without an evidentiary hearing. For the reasons discussed below, we affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: David Gerbasch, et al. v. City of Madison

Case No.: 2018AP512

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

Focus: Summary Judgment – Issue of Material Fact

The City of Madison appeals an order granting summary judgment dismissing its claims against five stagehands employed by the City. The City’s claims seek recovery from the employees of contributions to the Wisconsin Retirement System (the retirement system) that the City made on behalf of the employees. The City made these contributions after the state Department of Employee Trust Funds (ETF) determined in 2013 that the stagehands had been employees eligible to participate in the retirement system, one of them as long ago as 1980. We will refer to these contributions as the “employee back contributions.” The City argues that the stagehands are not entitled to summary judgment dismissing the City’s claims for recovery of the employee back contributions. The City also argues that it is entitled to summary judgment in its favor on those claims. The stagehands argue that they are entitled to summary judgment and that the City is not.

We conclude on de novo review that neither the City nor the stagehands are entitled to summary judgment. In particular, one of our major conclusions is that there are genuine factual disputes about whether the stagehands reasonably relied on the City’s decision to treat them as independent contractors before ETF determined that they were employees. For at least this reason, neither side establishes, based on the summary judgment evidence, that the City is or is not equitably estopped as a matter of law from pursuing its claims to recover the employee back contributions from the stagehands. Based on all of our conclusions, we reverse the court’s grant of summary judgment to the stagehands, affirm its denial of summary judgment to the City, and remand for further proceedings.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Zachary S. Friedlander

Case No.: 2019 WI 22

Focus: Statutory Interpretation – Sentence Credit

This is a review of an unpublished, per curiam decision of the court of appeals, State v. Zachary S. Friedlander, No. 2017AP1337-CR, unpublished slip op. (Wis. Ct. App. Apr. 12, 2018) (per curiam), reversing the Jefferson County circuit court’s order. The circuit court order denied Zachary S. Friedlander (“Friedlander”) sentence credit for time that he spent at liberty after being mistakenly released from prison without being transferred, pursuant to a detainer, to serve remaining conditional jail time. The court of appeals remanded this case to the circuit court with directions to amend Friedlander’s judgment of conviction to reflect the sentence credit that Friedlander requested. We reverse the court of appeals.

This court is presented with two issues. First, we must determine the meaning of “in custody” under Wis. Stat. § 973.155 (2015–16). In doing so, we consider whether the court of appeals’ decisions in State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), and State v. Dentici, 2002 WI App 77, 251 Wis. 2d 436, 643 N.W.2d 180, are in harmony with this court’s decision in State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536. We conclude that for the purpose of receiving sentence credit under § 973.155, a defendant is “in custody” whenever the defendant is subject to an escape charge under Wis. Stat. § 946.42, or another statute which expressly provides for an escape charge, as this court held in Magnuson. In doing so, we overrule the court of appeals’ decisions in Riske and Dentici.

Second, we must determine whether Friedlander is entitled to sentence credit for time he spent at liberty after being mistakenly released from prison without being transferred to serve his remaining conditional jail time. We conclude that Friedlander is not entitled to sentence credit because Friedlander, who was at liberty, could not have been subject to conviction for escape under Wis. Stat. § 946.42. Thus, we reverse the court of appeals.

Reversed and remanded

Concur:

Dissent: ABRAHAMSON, J. dissents (opinion filed). A.W. BRADLEY, J. dissents (opinion filed).

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WI Supreme Court

Case Name: State of Wisconsin ex rel. The Peter Ogden Family Trust of 2008, et al. v. Board of Review for the Town of Delafield

Case No.: 2019 WI 23

Focus: Statutory Interpretation – Property Tax Classification

In 2016, the Board of Review for the Town of Delafield reclassified two lots of land owned by The Peter Ogden Family Trust of 2008 and The Therese A. Mahoney-Ogden Family Trust of 2008 from “agricultural land” to “residential.” This reclassification resulted in a significant increase in property tax owed for the two lots. The Board believed that to qualify for the “agricultural land” classification, the land must be farmed for a business purpose. The Ogdens sought certiorari review, and the Circuit Court for Waukesha County, Kathryn W. Foster, Judge, sustained the Board’s reclassification of the land as “residential.”

The court of appeals reversed the circuit court, holding that a business purpose was not necessary for land to be classified as “agricultural land” for property tax purposes. “Because the assessor’s determination of the appropriate classification was driven by his erroneous understanding of the law[,]” the court of appeals ordered the circuit court to remand the cause to the Board to “assess the Trust property anew in a manner that is not inconsistent with” the court of appeals’ decision.

We affirm the decision of the court of appeals. We agree with the court of appeals that a business purpose is not required in order for land to be classified as “agricultural land” for property tax purposes.

Affirmed and remanded

Concur: DALLET, J. concurs, joined by A.W. BRADLEY, J. (opinion filed).

Dissent:

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