Weekly Case Digests – July 22, 2019 – July 26, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Kent Morgan

Case No.: 18-2751

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

Focus: Double Jeopardy

The jury deciding Kent Morgan’s fate had no trouble concluding that he had possessed the 86.5 grams of methamphetamine that he conceded he tossed over the heads of inquisitive law enforcement officers in the Peoria airport on January 7, 2016. But the jury could not come to an agreement as to whether the government proved that he possessed that methamphetamine with the intent to deliver it. They declared themselves deadlocked on that issue—the one actually charged in the indictment—but found him guilty of the lesser included offense of possession of methamphetamine. Morgan now argues that his Fifth Amendment right to be free from double jeopardy was violated by the government’s second attempt to convict him of possession with intent to deliver. In the course of making that claim, he also asserts other improprieties in his trial. In the end we find only harmless errors and no violation of double jeopardy resulting after the deadlocked jury could not come to a conclusion on the indicted count. We therefore affirm the decision of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: George Kiebala v. Derek Boris

Case No.: 17-3233

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

Focus: Court Error – Statute of Limitations

Plaintiff‐appellant George Kiebala appeals from the dismissal of his complaint against defendant‐appellee Derek Boris. Kiebala contends the district court abused its discretion in failing to suggest how Kiebala, who represented himself in the district court, could amend his complaint to avoid dismissal. He also argues that the district court erred in holding that his libel claim is barred by the statute of limitations.

We affirm. District judges do not have an affirmative duty to coach or second‐guess the choices that parties, even pro se parties, make about how to litigate their cases. We also agree with the district court that the applicable Illinois statute of limitations bars Kiebala’s libel claim.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Emmis Communications Corporation v. Illinois National Insurance Company

Case No.: 18-3392

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

Focus: Insurance Claim – Coverage

Emmis Communications Corporation bought two insurance policies, each from a different provider. From Chubb Insurance Company, it purchased a directors‐and‐officers liability policy for the period of October 1, 2009, to October 1, 2010. Emmis later bought a second insurance policy, this time from Illinois National Insurance Company. This policy covered liability from October 1, 2011, to October 1, 2012. It had an exclusion for any losses in connection with “Event(s),” which included “[a]ll notices of claim of circumstances as reported under policy 8181‐0068 issued to Emmis Corporation by Chubb Insurance Companies.”

Both parties sought summary judgment—Emmis arguing that coverage was appropriate, and Illinois National arguing that the policy’s complex exclusion provisions prevented coverage. Among the disputes was the meaning of “as reported.” Illinois National argued that this provision excluded all notices that were reported to Chubb at any time—which of course would include the notice in dispute. Emmis, on the other hand, claimed that it excluded only those notices that had been reported at the time that the policy went into effect— two years before this notice was reported.

The district court entered summary judgment for Emmis on its claim for breach of contract. It rejected each of Illinois National’s theories under the language of the exclusion, including its interpretation of the “as reported” language. It concluded that, while both interpretations were reasonable, Emmis’s was better. The court thought that the past tense of “as reported” must “refer[] to events that had already occurred at the time of drafting.” It bolstered its holding by invoking the rule favoring coverage when multiple reasonable readings of an insurance policy might apply. See Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind. 2009).

On appeal, the parties briefed many legal issues arising from the Byzantine exclusion language. But we can resolve this case on a single issue: the meaning of “as reported.” We disagree with the district court’s opinion; Illinois National’s proposed interpretation is correct. The phrase has no discernable temporal limitations. Once Emmis or one of its agents reports a claim to Chubb, at any time, then that claim is “reported”—and so is excluded. The timing of the report is irrelevant. Emmis acknowledged in its brief that it did in fact re‐ port its claim to Chubb. That resolves our inquiry.

The exclusion applies, so summary judgment should have been entered in favor of Illinois National. The judgment of the district court is REVERSED and REMANDED for proceedings consistent with this opinion.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Richard A. Clark, et al. v. Sierra International Machinery, LLC

Case No.: 18-3034; 18-3141

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

Focus: Exclusion of Evidence – Expert Testimony

Accidents unfortunately happen on business premises with some regularity. The workers’ compensation system normally governs payments from employers to injured workers, but those workers are free to sue other parties, such as suppliers or lessors of machinery that is used on the site. That is what happened here: Richard A. Clark was badly injured as he was getting off a car crushing machine known as a mobile RB6000 Logger/Baler (“the Crusher”), which was used by his employer, Thornton Auto Crushing, LLC. He sued both the manufacturer of the Crusher, Sierra International Machinery, LLC, and the company that had leased it to Thornton, River Metals Recycling, LLC, asserting that they were liable to him under Illinois tort law because it was defectively designed. The district court granted summary judgment in both defendants’ favor after it decided to strike the testimony from Clark’s expert. Even taking the facts in the light most favorable to Clark, as we must, we conclude that the district court was correct to take this action. We therefore affirm its judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Valerie Flores

Case No.: 18-3249

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

Focus: Sentencing – Supervised Release

In this appeal, Valerie Flores challenges one condition of her supervised release as unconstitutionally vague. She admits that she did not raise the challenge in the district court, but she asks that we review it for plain error. The first step in plain‐error review, as the Supreme Court has repeatedly said, is to ask whether the defendant intentionally relinquished the challenge she now presents. See Rosales‐Mireles v. United States, 138 S. Ct. 1897, 1904–05 (2018); Molina‐Martinez v. United States, 136 S. Ct. 1338, 1343 (2016); United States v. Olano, 507 U.S. 725, 733 (1993). This is where Flores’s challenge fails. She had notice and opportunity to make the challenge in the district court, she submitted other sentencing challenges, and she affirmatively waived reading of the conditions and their justifications at sentencing. Her failure amounts to waiver, precluding appellate review.

We recognize, and will address, that in some cases we have overlooked waiver concerns when reviewing supervised release conditions for plain error. Those cases either presented compelling reasons for forgiving waiver, which this case does not present, or simply did not address waiver, usually because the government did not press it. We emphasize, as the Supreme Court has, that waiver is a threshold, context‐specific inquiry in plain‐error review. Due to Flores’s waiver, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Izabela Gawron

Case No.: 18-2608

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

Focus: Sentencing – Supervised Release

Izabela Gawron is a citizen of Poland, but she has lived in the United States for the last 17 years. She became mixed up in a complex scheme that landed her in federal court facing charges of wire fraud. Once there, she pleaded guilty to one count and was sentenced to 12 months and one day in prison, and two years of supervised release. Her appeal focuses on the latter part of the sentence: she contends that the district court erred by imposing any term of supervised release, because she is likely to be deported after her imprisonment. She also argues that the supervised‐release condition confining her to the district where she is being supervised is flawed because the condition contains no scienter requirement. Finally, she asserts that the court’s written judgment conflicts with its oral pronouncement of this condition.

While we find that Gawron’s first two arguments lack merit, her argument about scienter would have warranted relief if she had properly preserved it. As for the third, we agree with both parties that the written judgment must be amended to conform to the court’s oral pronouncement.

Gawron’s final point is uncontroversial: she asks that the condition in the written judgment be corrected to include the definition of “jurisdiction” as “federal judicial district,” thus conforming to the court’s oral pronouncement from the bench. The government agrees that the condition as stated orally is proper and so it must be given effect.

We therefore modify the judgment to conform to the court’s oral pronouncement defining the term “jurisdiction” as “judicial district,” see United States v. Smith, 906 F.3d 645, 651 (7th Cir. 2018), and AFFIRM it as modified.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Francisco Lopez Gamero v. William P. Barr

Case No.: 17-3198; 18-1104

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

Focus: Abuse of Discretion – Sufficiency of Evidence

Francisco Lopez Gamero, a Mexican citizen and lawful permanent resident of the United States, faces removal because of two state drug convictions. An immigration judge found him removable as an alien convicted of the aggravated felony of “illicit trafficking in a controlled substance.” 8 U.S.C. § 1101(a)(43)(B). He sought deferral of removal under the Convention Against Torture, but the judge denied that relief because the evidence he presented about the risk of torture from Mexican drug cartels was largely speculative. The Board of Immigration Appeals affirmed.

Lopez Gamero later moved to reopen the removal proceedings based on new evidence—most notably, evidence that his brother-in-law and nephew had been kidnapped and held for ransom in Lopez Gamero’s hometown. The Board denied the motion, ruling that the new evidence was unlikely to change the outcome.

Lopez Gamero seeks review of both decisions. He raises three arguments: (1) his drug convictions do not qualify as “illicit trafficking” under § 1101(a)(43)(B) because the crimes in question do not require proof of remuneration; (2) the agency’s decision to deny his application under the Convention Against Torture is not supported by substantial evidence; and (3) the agency applied the wrong legal standard and abused its discretion when it denied his motion to reopen. We deny the petitions for review.

Denied

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7^th Circuit Court of Appeals

Case Name: John Doe v. Kevin K. McAleenan, et al.

Case No.: 17-2040

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

Focus: Due Process Violation

John Doe, a native and citizen of Iran, obtained an immigrant visa through an employment based visa program for investors, and, in due course, he successfully applied to adjust his status to that of a conditional permanent resident. At the conclusion of his two-year, conditional term, Mr. Doe petitioned to remove the conditions on his residency. The United States Citizenship and Immigration Services (“USCIS”) denied his petition. Mr. Doe challenged the denial in the district court, claiming that the decision was arbitrary and capricious, exceeded the relevant statutory and regulatory authority, and deprived him of his due process rights under the Fifth Amendment. The district court granted summary judgment to the defendants. For the reasons below, we affirm the judgment of the district court.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Anthony Gagliano & Co., Inc. v. Openfirst, LLC., et al.

Case No.: 2018AP432

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

Focus: Sufficiency of Evidence

Anthony Gagliano & Co., Inc. (“Gagliano Co.”) appeals an order of the trial court denying its postverdict motions and entering judgment in favor of Robert Kraft and New Electronic Printing Systems, LLC (“New EPS”). That order was the culmination of lengthy litigation stemming from the alleged breach of a lease for commercial property located on North Jefferson Street in the City of Milwaukee. That lease, dated May 2000, was originally between Gagliano Co. as the landlord and Electronic Printing Systems, Inc. (“EPS”) as the tenant, with Kraft personally guaranteeing the lease on behalf of EPS. Subsequently, EPS’s assets were sold to several entities, including New EPS;  the lease was assigned to New EPS, with Kraft extending his personal guaranty of the lease on behalf of New EPS.

The order underlying this appeal was the result of a jury verdict from the second trial in this matter, held in October 2017. The jury found that Gagliano Co. had breached its duty to disclose the landlord extension option, that New EPS had not breached the lease by ceasing to make rent payments in October 2008, and that Kraft had not guaranteed New EPS’s performance of the lease. Therefore, the jury concluded that no damages for unpaid rent were owed to Gagliano Co. Gagliano Co.’s postverdict motions argued that the verdict was not supported by credible evidence, and requested that the trial court grant judgment in its favor notwithstanding the verdict. Gagliano Co. contended that the evidence showed that Kraft and New EPS knew of the landlord extension option when EPS’s lease rights were sold to New EPS and guaranteed by Kraft, and therefore that provision was expressly agreed to by New EPS and affirmed by Kraft. Furthermore, Gagliano Co. noted that subsequent actions by Kraft and New EPS after their discovery of the provision—including the execution of the amendment that added more space to the leased premises—also affirmed the lease. Therefore, Gagliano Co. argued, Kraft and New EPS were bound by all of the lease’s provisions, including the landlord extension option; as a result, the jury’s finding that New EPS and Kraft did not breach the terms of the lease was not supported by the evidence.

We agree that the evidence indicates that New EPS and Kraft affirmed the lease with knowledge of the landlord extension option and, therefore, the jury verdict is not supported by the evidence. As a result, we reverse and remand to the trial court to enter a judgment in favor of Gagliano Co. notwithstanding the verdict, and for further proceedings to determine the amount of Gagliano Co.’s damages.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Eric J. Woller

Case No.: 2018AP502-CR

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

Focus: Abuse of Discretion – Plea Withdrawal

Eric Woller appeals from a judgment of conviction for two counts of third-degree sexual assault, and an order denying postconviction relief. Woller argues the circuit court erroneously exercised its discretion by denying a motion to withdraw his no-contest pleas based upon newly discovered evidence. We reject his argument and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Christopher Dean Buten

Case No.: 2018AP1227-CR

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

Focus: Ineffective Assistance of Counsel

Christopher Bunten appeals a judgment convicting him of second-degree sexual assault of an intoxicated person incapable of giving consent. He also appeals an order denying his motion for postconviction relief. Bunten argues his trial attorney was ineffective in various ways. He also argues the circuit court erred by denying his motion for a new trial based upon newly discovered evidence. In the alternative, he asks this court to grant him a new trial in the interest of justice. Finally, he argues the circuit court exhibited judicial bias during the postconviction hearing, and we should therefore reverse the order denying postconviction relief and remand for a new postconviction hearing before a different judge. We reject each of Bunten’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Asmar M. Young

Case No.: 2018AP1591-CR

Officials: Kessler, Brennan and Kloppenburg, JJ.

Focus: Ineffective Assistance of Counsel

Asmar M. Young entered pleas to four crimes committed over five days. Young filed a postconviction motion to withdraw his pleas, arguing that: (1) his pleas were not knowingly and intelligently entered because the circuit court failed to establish a factual basis for one of the convictions; (2) his pleas were not knowingly, voluntarily, and intelligently entered because (a) he was not advised of and did not understand the elements of the crimes and the maximum penalties, and (b) his original trial counsel provided ineffective assistance by advising Young to enter the pleas, and by not adequately explaining the elements of the crimes and the maximum penalties; and (3) his replacement counsel provided ineffective assistance by failing to raise these issues in his presentencing plea withdrawal motion. The court denied Young’s postconviction motion without a hearing. Young makes the same arguments on appeal. As we explain, we reject Young’s arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. David Gutierrez

Case No.: 2017AP2364-CR

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

Focus: Court Error – Other Acts Evidence

David Gutierrez appeals from his conviction for three counts of first-degree sexual assault of a child under the age of thirteen, three counts of incest with a child by a stepparent, and three counts of child enticement. Gutierrez argues that the circuit court erroneously admitted other acts evidence, erroneously denied the admission of DNA evidence, denied him an impartial jury, and that trial counsel was ineffective for failing to call a witness at trial. We conclude that the circuit court erred in denying the admission of the DNA evidence and that the error was not harmless. We reverse and remand for a new trial.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Karen Rosneck v. Labor & Industry Review Commission

Case No.: 2018AP1179

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

Focus: LIRC Review – Sufficiency of Evidence

Karen Rosneck appeals a circuit court order affirming a decision by the Labor and Industry Review Commission (LIRC) which dismissed Rosneck’s employment discrimination complaint in favor of her employer, the University of Wisconsin-Madison General Library System (UW). Because substantial evidence supports LIRC’s findings, we affirm.

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WI Court of Appeals – District II

Case Name: Hanning Regency LLC v. Town of Brookfield Board of Review

Case No.: 2018AP1584

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

Focus: Property Valuation

Hanning Regency LLC asserts that the Town of Brookfield Board of Review improperly disregarded the statutory standard for real property valuations when it sustained an assessor’s valuations that were nearly twice the amount of a recent arm’s-length purchase of two properties. We agree and reverse the circuit court’s decision to deny Hanning’s certiorari challenge and remand for further proceedings.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Jessica M. Randall

Case No.: 2019 WI 80

Focus: Unreasonable Seizure – Blood Test

A police officer arrested Jessica M. Randall for operating a motor vehicle while under the influence of an intoxicant. Ms. Randall gave the officer permission to take a sample of her blood for the purpose of determining its alcohol concentration. But before the Wisconsin State Laboratory of Hygiene could test it, she sent a letter revoking the consent she had previously given. The letter also demanded the immediate return or destruction of her blood sample. This, she says, made the subsequent test of her blood sample a violation of her constitutional right to be free of unreasonable searches and seizures. We do not agree, and so we reverse the decision of the court of appeals.

Reversed and remanded

Concur: ROGGENSACK, C.J. concurs, joined by ZIEGLER, J. and DALLET, J. (opinion filed).

Dissent: A.W. BRADLEY, J. dissents (opinion filed).
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Kathleen Anna Wagner

Case No.: 2019 WI 81

Focus: Attorney Disciplinary Hearing

Attorney Kathleen Anna Wagner has appealed a report filed by Referee James C. Boll, concluding that Attorney Wagner committed two counts of professional misconduct and recommending that she be privately reprimanded. The Office of Lawyer Regulation (OLR) has now that asked one of those counts be dismissed. Thus, what is before the court is Attorney Wagner’s challenge to the referee’s conclusion that she violated Supreme Court Rule (SCR) 20:1.5(b)(3). Attorney Wagner has also challenged the referee’s recommendation that she be assessed the full costs of this proceeding.

Upon careful review of this matter, we conclude that although Attorney Wagner did violate SCR 20:1.5(b)(3), the violation does not warrant the imposition of any discipline. In addition, we find it appropriate, under the unique facts of this case, to depart from our normal custom of imposing full costs, which are $40,639.72 as of March 4, 2019. Instead, we deem it appropriate to require Attorney Wagner to pay $4,500 in costs.

Professional misconduct found; no discipline imposed.

Concur:

Dissent:
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