Weekly Case Digests – September 30, 2019 – October 4, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Mohammad Waqas Khan

Case No.: 18-2612

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

Focus: Sufficiency of Evidence

Digital platforms unleash instant and limitless capabilities; at the tap of a finger, one can touch the world. That power and freedom enables many noble pursuits. But, as this case shows, underneath the promise of modern connectivity can lurk a dark side.

Over a seven‐week span, Mohammad Khan used Face‐ book and his job as an Uber driver to threaten and prepare for mass murder. He posted messages threatening to “kill,” “shoot,” “hunt,” “murder,” and “put bullets in” his “targets.” Khan’s “targets” included “college student[s],” “vulnerable individuals,” people “walking their dogs,” “high net worth individual[s],” and “witnesses” that “get [in] the way.” He aimed for “a real human tragedy” and “claim[ed] the loop area of Chicago to the Northern Lincoln Park area” as his “free kill zone.” Worse, Khan planned to “purchase a [G]o[P]ro camera, strap it to [his] chest or forehead, record the killings, and upload them onto Facebook for everyone around the world to see the grisly footage of death.”

Khan also drove for Uber. He posted messages about “dry run[s]” and carrying a loaded gun during shifts to prepare for “necessary murders”—in fact, several of his threatening posts occurred immediately before and after driving passengers. To add credence to his threats, Khan boasted his “mental fortitude to pull it off,” posted photos of himself holding the guns he would use, and “sw[ore] to Allah and everything I hold dear that I will resort to murder in the next 30 days.” That thirty‐day deadline corresponded with the date Khan was to fly to Pakistan.

Khan used Facebook to draw the public into his world; instead he drew the attention of the FBI. His words and actions resulted in an indictment for making interstate threats to in‐ jure others, a violation of 18 U.S.C. § 875(c). At trial, Khan claimed his statements were not “true threats.” A jury disagreed and convicted him.  Khan challenges his conviction, arguing that the government’s indictment and evidence against him were insufficient. He also challenges the jury instructions for the § 875(c) charge and the district court’s refusal to suppress all evidence leading to his arrest. Neither challenge is persuasive, so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Steven A. Adams

Case No.: 18-2932

Officials: James E. Shadid, Judge.

Focus: Order Correcting Opinion – Sentencing Guidelines

Upon consideration of the MOTION TO CORRECT OPINION, filed on August 20, 2019, by counsel for the plaintiff-appellee United States of America, IT IS ORDERED that the motion is GRANTED. On page sixteen, the first full paragraph is CORRECTED to read: “Following this surviving portion of Raupp, as applied to inchoate controlled substance offenses, we find no error in the district court’s use of a base offense level of 20 under § 2K2.1(a) of the Sentencing Guidelines.”

Motion granted

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7^th Circuit Court of Appeals

Case Name: McGarry & McGarry, LLC, v. Bankruptcy Management Solutions, Inc.,

Case No.: 18-2619

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

Focus: Bankruptcy – Antitrust Claim

McGarry & McGarry, LLC, a creditor in a closed Chapter 7 bankruptcy case, tried three times to bring a price-fixing claim against Bankruptcy Management Solutions, Inc. (“BMS”), the trustee’s software-services provider. In the first suit, McGarry alleged claims under the Sherman Act and the Illinois Antitrust Act. Because McGarry is not a direct purchaser of bankruptcy software services, the district court dismissed the Sherman Act claim, see Ill. Brick Co. v. Illinois, 431 U.S. 720 (1977), and relinquished jurisdiction over the state-law claim.

McGarry tried a different tack and moved to reopen the bankruptcy proceedings. The bankruptcy court denied that request because the case had been closed for more than three years. Undeterred, McGarry filed a new lawsuit in state court alleging a stand-alone claim under the Illinois Antitrust Act. The state statute has an “Illinois Brick repealer” provision that permits indirect purchasers to sue. BMS removed the case to federal court and moved to dismiss. The district judge granted the motion because McGarry is not even an indirect purchaser of bankruptcy software services; it does not purchase these services at all. McGarry appealed.

We affirm. McGarry is a one-time creditor in a closed Chapter 7 bankruptcy case. It does not participate in the market for bankruptcy software services in any way that would make it a proper plaintiff to bring an antitrust claim against a firm that provides those services to bankruptcy trustees.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mountain Crest SRL, LLC v. Anheuser-Busch Inbev

Case No.: 18-2327

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

Focus: Statute of Frauds – Unjust Enrichment – Supplemental Jurisdiction

Mountain Crest SRL, LLC (“Mountain Crest”), brought this action, alleging that Anheuser Busch InBev SA/NV (“Anheuser-Busch”) and Molson Coors Brewing Company (“Molson Coors”) had conspired to damage Mountain Crest’s beer exports to Ontario, Canada, in violation of the Sherman Antitrust Act, 15 U.S.C. §§ 1– 2. Mountain Crest also alleged that Anheuser-Busch and Molson Coors were enriched unjustly in violation of Wisconsin law.

Much, although not all, of this dispute centers around two agreements: an agreement in 2000 between two Canadian entities, Brewers Retail, Inc. (“BRI”), and the Liquor Control Board of Ontario (“LCBO”); and an agreement in 2015 between Anheuser-Busch, Molson Coors, BRI, the LCBO and the government of Ontario. Mountain Crest alleged that Anheuser-Busch and Molson Coors had conspired to restrain trade in the Ontario beer market and had engaged in monopolistic behavior through the two agreements. Among other things, Anheuser-Busch and Molson Coors carried on a group boycott to force the LCBO to enter the agreement in 2000 to ensure that BRI, an entity Anheuser-Busch and Molson Coors control, was the only retailer in Ontario selling beer in packages larger than six containers. Mountain Crest further claimed the conspiracy extended into 2014 and 2015 when Anheuser-Busch and Molson Coors used a variety of tactics to continue the retail arrangement between BRI and the LCBO, including a threat to bring expropriation litigation under the North American Free Trade Agreement (“NAFTA”). Mountain Crest contends that these agreements, as well as BRI’s policy of promoting sales of Anheuser-Busch’s and Molson Coors’ products in its stores to the detriment of American competition, inhibited its ability to compete in the Ontario beer market.

Anheuser-Busch and Molson Coors moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on multiple grounds. The district court ruled that the act of state doctrine required dismissal of the federal claims and granted the motion; it did not address Anheuser-Busch and Molson Coors’ other grounds for dismissal of the federal claims. The district court then relinquished supplemental jurisdiction over the state-law unjust enrichment claim and dismissed the case without prejudice to Mountain Crest’s bringing that claim in state court. Mountain Crest timely appealed. For the reasons set forth in this opinion, we affirm in part and vacate in part the judgment of the district court and remand the case for proceedings consistent with this opinion.

Affirmed in part. Vacated and remanded in part.

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Eric L. Vanremortel

Case No.: 2018AP417-CR

Officials: SEIDL, J.

Focus: Court Error – Abuse of Discretion

Eric Vanremortel appeals a judgment convicting him of disorderly conduct. Vanremortel argues the circuit court erroneously exercised its discretion in granting the State’s motion to admit evidence of three out of four other prior acts at his jury trial. We disagree and affirm the judgment.

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WI Court of Appeals – District III

Case Name: Lolie’s West Bay Condominium Association v. Wendy J. Waitzman, et al.

Case No.: 2018AP607

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

Focus: Attorney Fees

Wendy Waitzman and Joseph Waitzman, trustees of the Wendy J. Waitzman Living Trust (the Waitzmans) appeal from a judgment finding that the Waitzmans violated the Declaration of Condominium Ownership (the Declaration) by failing to obtain approval from Lolie’s West Bay Condominium Association (the Association) prior to remodeling their unit to a two-story building. The Waitzmans also challenge an award of attorney fees. We affirm.

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WI Court of Appeals – District III

Case Name: Mahmoud Adel Sharaf v. Amanda Kay Sharaf

Case No.: 2018AP735

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

Focus: Abuse of Discretion – Child Support – Placement

Mahmoud and Amanda Sharaf divorced in 2017. Mahmoud now appeals from the divorce judgment, as well as from a post-divorce order clarifying the judgment. Mahmoud argues that the circuit court erred, in several respects, in its interpretation of the parties’ prenuptial agreement (the Agreement). Mahmoud also argues that the court erroneously exercised its discretion in setting his child support obligation.

Amanda cross-appeals from the judgment and order. She argues that the circuit court erroneously exercised its discretion in determining the placement schedule for the parties’ minor children. We affirm the circuit court in all respects, save one. Namely, we conclude that the circuit court’s determination that the Agreement did not preclude an award of attorney’s fees was in error. Accordingly, we reverse the attorney’s fees portion of the judgment, and we remand for further proceedings on that limited issue.

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WI Court of Appeals – District III

Case Name: Richard A. Birnschein dba Progressive Carpentry

Case No.: 2018AP1211

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

Focus: Breach of Contract – Judgment  

David and Patricia Sandlund (the Sandlunds) appeal from a money judgment in favor of general contractor Richard Birnschein d/b/a Progressive Carpentry regarding a construction project at the Sandlunds’ Door County home. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. T.L.G.

Case No.: 2018AP1291

Officials: KESSLER, J.

Focus: Termination of Parental Rights

T.L.G. appeals an order of the circuit court terminating her parental rights to her son, M.I.G. T.L.G. argues that her no contest plea was not knowing, voluntary, or intelligent because her cognitive limitations prevented her from understanding the consequences of her plea. She also argues that her counsel did not accurately advise her about the applicable law. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Keana S.J. Cousin

Case No.: 2018AP1705-CR

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

Focus: Plea Withdrawal

Keana S.J. Cousin appeals from a judgment convicting her of conspiracy to commit the manufacture or delivery of more than fifty grams of heroin and from an order denying her postconviction motion to withdraw her guilty plea. We reject her arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Thomas G. Zeal, et al. v. Ron Hill Estates Architectural Control Committee, et al.

Case No.: 2018AP2117

Officials: Fitzpatrick, P.J., Blanchard, Kloppenburg, JJ.

Focus: Summary Judgment – Restrictive Covenant

Thomas and Christine Zeal, lot owners in a residential subdivision, appeal an order denying their summary judgment motion and granting summary judgment in favor of the other subdivision lot owners and the subdivision’s Architectural Control Committee (collectively, “the neighbors”). Under restrictive covenants that govern lots in the subdivision, the Committee must approve proposed alterations to existing structures on any lot. The Committee denied the Zeals’ request to build a second attached garage based on a covenant that governs garages.

The Zeals sought declaratory relief in circuit court, namely, a declaration that the garage covenant does not prohibit the Zeals from adding a second attached garage, and also sought an order that the Committee must grant the Zeals’ request. The circuit court rejected this relief. The court instead agreed with the neighbors that the garage covenant unambiguously restricts each lot to a single attached garage and granted summary judgment to the neighbors.

Case law requires that, in order to be enforceable, restrictive covenants must be “‘expressed in clear, unambiguous, and peremptory terms.’” Diamondback Funding, LLC v. Chili’s of Wis., Inc., 2004 WI App 161, ¶13, 276 Wis. 2d 81, 687 N.W.2d 89 (quoting Crowley v. Knapp, 94 Wis. 2d 421, 435, 288 N.W.2d 815 (1980)). We conclude that the garage covenant does not contain a clear, unambiguous, and peremptory prohibition on the Zeals’ lot having more than one attached garage. Accordingly, we reverse the order granting summary judgment in the neighbors’ favor. Further, because the neighbors concede that summary judgment in favor of the Zeals is appropriate if the garage covenant does not contain such a prohibition, we remand with directions that the circuit court enter summary judgment in the Zeals’ favor.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Israel E. Nunez

Case No.: 2018AP2211-CR; 2018AP2212-CR

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

Focus: Court Error – Initial Joinder

In these consolidated cases, Israel Nunez appeals circuit court judgments convicting him of three counts of child sexual assault. Nunez also appeals the court’s order denying his motion for postconviction relief. On appeal, Nunez states that he has chosen not to pursue possible issues as to “prejudicial joinder or retroactive misjoinder.” Rather, he challenges only the circuit court’s “initial” joinder decision that the court made based on the allegations in the criminal complaints. Thus, we decide only this initial joinder issue. The parties agree that this issue is governed by WIS. STAT. § 971.12(1) and (4). They further agree that our review is de novo. See State v. Salinas, 2016 WI 44, ¶30, 369 Wis. 2d 9, 879 N.W.2d 609 (“The initial decision on joinder is a question of law that we review de novo.”). Nunez argues that the circuit court erred when it joined two sets of charges for trial.  We disagree and affirm.

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