Weekly Case Digests – October 7, 2019 – October 11, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Todd R. Chazen v. Matthew Marske

Case No.: 18-3268

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

Focus: Sentencing Guidelines

A federal jury in Minnesota convicted Todd Chazen of possessing a firearm following a prior felony conviction. The district court then sentenced Chazen pursuant to the Armed Career Criminal Act, which mandates a minimum 15-year sentence for a defendant who unlawfully possesses a firearm and has three prior convictions for a serious drug offense or violent felony. After an unsuccessful direct appeal and petition for post-conviction relief under 28 U.S.C. § 2255, Chazen turned to 28 U.S.C. § 2241 and sought a writ of habeas corpus, arguing that the application of a recent Supreme Court decision shows he no longer qualifies as an armed career criminal and is entitled to a lesser sentence. The district court agreed and granted habeas relief. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Stephen Linder v. United States of America

Case No.: 15-1501

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

Focus: 6^th Amendment Violation – Confrontation Clause

While tracking down a fugitive, Deputy Marshal Stephen Linder interrogated the fugitive’s father. Another deputy marshal later stated that he had seen Linder punch the father in the face. After an investigation by the Marshals Service and the Inspector General of the Department of Justice, Linder was indicted for federal felonies (witness tampering and using excessive force in violation of the father’s civil rights). The Service put Linder on leave, and Darryl McPherson, the U.S. Marshal for the Northern District of Illinois, instructed other deputies not to communicate with Linder or his lawyers without approval. Frustrated by this barrier to getting information from potential witnesses, Linder’s lawyers asked the district court to dismiss the indictment as a sanction. That was done, see 2013 U.S. Dist. LEXIS 29641 (N.D. Ill. Mar. 5, 2013), the United States did not appeal, and Linder returned to work. He remains employed as a deputy marshal.

Linder’s suit accuses the United States of two torts: malicious prosecution and intentional infliction of emotional distress. His principal argument is that the discretionary function exemption of §2680(a) does not apply to suits for malicious prosecution. Linder asserts, no one has discretion to violate the Constitution—and, when dismissing the indictment, the district court stated that the no-contact-without-approval order violated the Confrontation Clause of the Sixth Amendment. Congress might have chosen to provide financial relief to all persons who are charged with crime but never convicted. The Federal Tort Claims Act does not do this, however, and Linder has not claimed that he is entitled to relief under 28 U.S.C. §§ 2513 and 1495, which apply to persons able to prove their innocence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ernest A. Odei, et al. v. United States Department of Homeland Security, et al.

Case No.: 18-3105

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

Focus: Immigration – Removal Order – Jurisdiction

Ernest Odei traveled from his native Ghana to the United States in 2017 to meet with academic advisors and to perform missionary work. When he arrived in Chicago, border patrol agents barred his entry because he did not have the proper visa. After a short detention, immigration authorities gave Odei the option to withdraw his application for admission and return to Ghana. He chose to do so, but several months later he brought this lawsuit challenging the inadmissibility determination.

The district court dismissed the case for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(A), which bars judicial review of any “order of removal pursuant to” the expedited removal procedure in 8 U.S.C. § 1225(b)(1)(A)(i). Odei argues that the jurisdictional bar does not apply because it refers only to “order[s] of removal” and there was no order of removal here because he withdrew his application for admission. Under the relevant statutory definitions, however, an “order of removal” refers to both an order to remove as well as an order that an alien is removable. Odei is challenging the latter, so the jurisdictional bar applies.

Affirmed

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7^th Circuit Court of Appeals

Case Name: David R. Camm v. Stanley O. Faith, et al.

Case No.: 18-1440

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

Focus: 4^th Amendment Violation – Probable Cause

This case arises from a heinous triple murder that occurred almost 19 years ago in Georgetown, Indiana, a small town near the Kentucky border. The plaintiff is David Camm, a former state trooper who was twice convicted of the crimes but was acquitted after a third trial. He then filed this suit for damages for the years he spent in custody.

This lawsuit under 42 U.S.C. § 1983 followed. The defendants are several investigators, two prosecutors, and Stites and his boss, who backed up his assistant’s opinions. Camm alleges that the defendants willfully or recklessly made false statements in three probable-cause affidavits that led to his arrest and continued custody while he awaited trial and retrial. Though the parties and the district judge referred to this as a claim for malicious prosecution, we’ve since explained that “malicious prosecution” is the wrong label. It’s a Fourth Amendment claim for wrongful arrest and detention. The suit also raises a claim of evidence suppression in violation of Brady v. Maryland, 373 U.S. 83 (1963).

This lawsuit under 42 U.S.C. § 1983 followed. The defendants are several investigators, two prosecutors, and Stites and his boss, who backed up his assistant’s opinions. Camm alleges that the defendants willfully or recklessly made false statements in three probable-cause affidavits that led to his arrest and continued custody while he awaited trial and retrial. Though the parties and the district judge referred to this as a claim for malicious prosecution, we’ve since explained that “malicious prosecution” is the wrong label. It’s a Fourth Amendment claim for wrongful arrest and detention. The suit also raises a claim of evidence suppression in violation of Brady v. Maryland, 373 U.S. 83 (1963).

This lawsuit under 42 U.S.C. § 1983 followed. The defendants are several investigators, two prosecutors, and Stites and his boss, who backed up his assistant’s opinions. Camm alleges that the defendants willfully or recklessly made false statements in three probable-cause affidavits that led to his arrest and continued custody while he awaited trial and retrial. Though the parties and the district judge referred to this as a claim for malicious prosecution, we’ve since explained that “malicious prosecution” is the wrong label. It’s a Fourth Amendment claim for wrongful arrest and detention. The suit also raises a claim of evidence suppression in violation of Brady v. Maryland, 373 U.S. 83 (1963).

Finally, Camm alleges that the defendants deprived him of a fair trial by inducing the real killer Charles Boney to give a false account implicating him in the murders. The judge entered summary judgment for the defendants.

We reverse in part. Camm presented enough evidence to proceed to trial on the Fourth Amendment claim, but only as it relates to the first probable-cause affidavit. A trial is also warranted on the following aspects of the Brady claim: whether some of the defendants suppressed evidence of Stites’s lack of qualifications and their failure to follow through on a promise to run a DNA profile through a law enforcement database to check for a match. In all other respects, we affirm the judgment.

Reversed in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: I80 Equipment, LLC, v. First Midwest Bank

Case No.: 18-3291

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

Focus: Statutory Interpretation – Bankruptcy – UCC

This interlocutory bankruptcy appeal presents a matter of first impression for our court: whether Illinois’s version of Article 9 of the Uniform Commercial Code requires a financing statement to contain within its four corners a specific description of secured collateral, or if incorporating a description by reference to an unattached security agreement sufficiently “indicates” the collateral. The bankruptcy court ruled that a financing statement fails to perfect a security interest unless it “contains” a separate and additional description of the collateral. Given the plain and ordinary meaning of the Illinois statute, and how courts typically treat financing statements, we disagree and reverse.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States America v. Dino Greco

Case No.: 18-3496

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

Focus: Jurisdiction – Supervised Release

Dino Greco spent more than a decade in prison for blowing up his ex-girlfriend’s car with a pipe bomb. In 2015 he began a term of supervised release, and one of the conditions was that he not break federal, state, or local law. He violated that condition three years later when he posted threatening Facebook messages about a second ex-girlfriend despite a court order not to contact her. A federal judge approved a warrant for Greco’s arrest, and seven months later a second judge revoked his supervised release and ordered a new term of imprisonment, to be followed by a new term of supervised release.

On appeal Greco argues that the court lacked jurisdiction to revoke his supervised release because the warrant wasn’t supported by probable cause. We disagree. The judge received a report explaining how Greco had broken the terms of his release by violating state law, and that was enough to establish probable cause.

Greco also challenges two of the conditions the court imposed for his second term of supervised release. We remand with respect to both so that the lower court can clarify several terms and further explain its reasoning.

Affirmed in part. Vacated and remanded in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Cathy Nicole Truitt

Case No.: 18-2324

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

Focus: Exclusion of Evidence – Expert Testimony

In late 2009 Cathy Truitt filed seven nearly identical tax returns, each falsely claiming that she was entitled to a $300,000 refund. The IRS identified six of the seven as fraudulent, but for unknown reasons it approved one and sent her a check for the full amount. Within weeks the IRS recognized the error and demanded that she return the funds. She did not respond. Instead, she spent the money on jewelry, a condominium, tickets to sporting events, and a business investment. The IRS launched an investigation, and eventually she was indicted for making false claims against the United States in violation of 18 U.S.C. § 287 and theft of government funds in violation of 18 U.S.C. § 641. A jury found her guilty as charged.

Truitt’s appeal is limited to a single issue. She challenges the exclusion of her expert witness, psychologist Dr. Michael Fogel, who proposed to testify that Truitt was a member of a “charismatic group”—a cult-like organization that indoctrinates its members. Truitt intended to offer this testimony to bolster an argument that she lacked the requisite mens rea for the crimes. The district judge excluded the testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Rules 702 and 704(b) of the Federal Rules of Evidence.

That ruling was sound. The judge reasonably concluded that Dr. Fogel lacked the relevant expertise and his methods were not reliable. We affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lexington Insurance Company v. Hotai Insurance Company, LTD., et al.

Case No.: 18-1141

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

Focus: Insurance Claim – Product Liability

Zurich Insurance (Taiwan), Ltd., and Taian Insurance Company, Ltd., are insurance companies based in Taiwan. Each provided worldwide products-liability insurance coverage to two Taiwanese companies that supplied parts and inventory to Trek Bicycle Corporation, which is based in Wisconsin. As part of their agreements with the Taiwanese companies, Zurich and Taian both recognized Trek as an additional insured covered by their policies.

On the basis of that additional-insured status, Trek’s primary insurer, Lexington Insurance Company, which is based in Massachusetts, sued Zurich and Taian in Wisconsin seeking indemnification for a products-liability settlement paid on Trek’s behalf involving an accident that took place in Texas. The district court correctly concluded that it lacked personal jurisdiction over Zurich and Taian, so we affirm its dismissal of the case.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Randall A. Hungerford

Case No.: 2017AP1791-CR; 2017AP1792-CR; 2017AP1793-CR

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

Focus: Plea Withdrawal

In these consolidated appeals, Randall Hungerford claims his attorney’s deficient performance prevented him from moving to withdraw his pleas prior to sentencing. He seeks to return this case to a presentence status so that he may file a motion for plea withdrawal under the “fair and just reason” standard. In the alternative, he argues plea withdrawal is necessary to correct a manifest injustice. We conclude Hungerford’s postplea expressions of confusion regarding the charges to which he had pled do not, under the circumstances here, support either a claim for ineffective assistance of counsel or a claim for postsentence plea withdrawal under a manifest injustice standard. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. William T. Peterson

Case No.: 2017AP1871

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

Focus: Plea Withdrawal and Sentence Modification

William Peterson, pro se, appeals an order denying his WIS. STAT. § 974.06 (2017-18) postconviction motion for plea withdrawal and sentence modification. Peterson argues that his plea was unknowing, thus entitling him to plea withdrawal, because the circuit court did not inform him at the plea hearing that read-in offenses could be used to increase his sentence up to the maximum or that it could order him to have no contact with his biological daughter. Peterson also contends he is entitled to sentence modification because the court erroneously weighed sentencing factors. We reject these arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: Daniel R. Freund v. Nasonville Dairy, Inc.,

Case No.: 2018AP1215

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

Focus: Statutory Interpretation – Judgment – Preference

Nasonville Dairy, Inc. (“Nasonville”) appeals a judgment awarding $290,000 to Daniel Freund, as receiver for Liberty Milk Marketing Cooperative (“Liberty”). Following a bench trial, the circuit court concluded that Nasonville’s receipt of a $290,000 payment from Liberty, which occurred less than one month prior to when Liberty entered receivership, constituted a preferential transfer that disadvantaged Liberty’s other similarly situated creditors. The court concluded the preference was voidable and ordered that Freund recover the $290,000 payment from Nasonville.

The first issue on appeal concerns a question of statutory interpretation regarding what elements must be proved to render a preference voidable under WIS. STAT. § 128.07(2) (2017-18). We conclude a preference is voidable under that subsection if (provided the other statutory requirements have been satisfied) an ordinarily prudent business person would, under the circumstances, have reasonable cause to believe both that the transferor is insolvent and that the effect of the transfer would be to enable the recipient to obtain a greater percentage of debt than any other creditor of the same class.

The circuit court did not explicitly resolve the parties’ disagreement regarding how WIS. STAT. § 128.07(2) should be interpreted, but it did make findings of fact and ultimately determined that Nasonville had reasonable cause to believe its receipt of the $290,000 would effect a preference. We conclude the evidence was sufficient to support the court’s conclusion that the payment at issue constituted a voidable preference. Specifically, there was sufficient evidence upon which the court could reasonably determine that Nasonville had reasonable cause to believe at the time of the payment both that Liberty was insolvent and that receipt of the payment would allow Nasonville to obtain a greater percentage of its debt than other general unsecured creditors. We therefore affirm.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: Bufkin Academy, LLC dba Texas Bufkin Christian Academy v. Carolyn Stanford Taylor, et al.

Case No.: 2018AP1384

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

Focus: Breach of Agreement – Breach of Duty of Good Faith

Bufkin Academy, LLC appeals an order of the trial court granting summary judgment in favor of the Wisconsin Department of Public Instruction (DPI). The Academy was a participant in the Milwaukee Parental Choice Program, and DPI had previously notified the Academy that due to ongoing concerns regarding its financial status, DPI was barring it from continuing to participate in the Program. The Academy appealed that decision, and subsequently entered into a Settlement Agreement with DPI which outlined specific conditions that the Academy had to meet, by the deadlines set in the Agreement, in order to remain in the Program. The Academy failed to meet several of those deadlines, and therefore DPI notified the Academy that it was barred from the Program.

The Academy then filed the action underlying this appeal, alleging that DPI had breached the terms of the Settlement Agreement and its duty of good faith under the Agreement. The Academy also sought a declaratory judgment of its rights under the Agreement and an injunction to keep DPI from barring it from the Choice Program. The State argued that DPI did not breach the terms of the Agreement because the Academy had in fact failed to meet deadlines set forth in the Agreement. The State further asserted that, in any event, the Academy’s claims fail under the doctrine of sovereign immunity.

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WI Court of Appeals – District I

Case Name: Wisconsin & Milwaukee Hotel, LLC v. City of Milwaukee

Case No.: 2018AP1744

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

Focus: Property Assessment

Wisconsin & Milwaukee Hotel, LLC (WMH) appeals an order of the circuit court, following a court trial, upholding the City of Milwaukee’s 2014 and 2015 property tax assessments of the Milwaukee Marriott Hotel Downtown (the Hotel) located in downtown Milwaukee. WMH contends that the City Assessor’s method of determining the Hotel’s fair market value violated both the Wisconsin Property Assessment Manual and the Uniformity Clause of the Wisconsin Constitution. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Amy Joan Zahurones

Case No.: 2018AP1845-CR

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

Focus: Sentence Credit

Amy Zahurones pled no contest to four counts arising from a single course of conduct. On three of the counts to which Zahurones pled, the circuit court withheld sentence and imposed two years’ probation. The court deferred entry of judgment on the remaining count—Count 2—pending the successful completion of Zahurones’ probation. However, following multiple probation holds, both Zahurones’ probation and the deferred entry of judgment agreement were revoked, and Zahurones received concurrent sentences on all four counts.

Zahurones now appeals, arguing the circuit court erred by granting her insufficient sentence credit against her sentence on Count 2. Specifically, Zahurones argues she is entitled to credit on Count 2 for time she spent in custody on probation holds on the other counts. We agree with Zahurones that the time she spent in custody on the probation holds was “in connection with” the course of conduct for which sentence was imposed on Count 2. Under WIS. STAT. § 973.155(1)(a) (2017-18), Zahurones was therefore entitled to sentence credit for those time periods against her sentence on Count 2. Accordingly, we reverse that portion of the judgment of conviction granting Zahurones only four days of sentence credit on Count 2 and that portion of the postconviction order denying Zahurones’ request for additional sentence credit on that count. We remand for the circuit court to modify the judgment of conviction to grant Zahurones a total of 276 days of sentence credit against her sentence on Count 2.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Eddie Ben Sanders

Case No.: 2018AP2017-CR; 2018AP2018-CR; 2018AP2019-CR

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

Focus: Ineffective Assistance of Counsel

Eddie Ben Sanders appeals from judgments convicting him of attempted third-degree sexual assault, felony intimidation of a witness, and violating the sex offender registry. See WIS. STAT. §§ 940.225(3), 939.32, 940.43(4), & 301.45(6) (2015-16). Sanders filed a postconviction motion and argued that he did not knowingly, intelligently, and voluntarily enter his guilty pleas; trial counsel was ineffective for not bringing a motion to sever the co-defendants; and the circuit court erred in granting the State’s motion to admit other-acts evidence. The circuit court denied the motion without a hearing. We affirm.

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WI Court of Appeals – District II

Case Name: Scott Carrington Matthew v. Elite Team Auto Brokers, LLC, et al.

Case No.: 2018AP414

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

Focus: Jurisdiction

Scott Carrington Matthew appeals an order (1) vacating a default judgment entered in Matthew’s favor against Elite Team Auto Brokers, LLC, its owners, and a manager (collectively, Elite) and (2) dismissing Matthew’s action without prejudice for lack of personal jurisdiction under WIS. STAT. § 801.05 (2017-18). For the reasons that follow, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Terrance L. Curtis

Case No.: 2018AP882-CR

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

Focus: Ineffective Assistance of Counsel

A jury found Terrance Curtis guilty of first-degree reckless homicide for causing the death of his five-month-old son, R.C. Curtis raises four issues on appeal: (1) whether he received ineffective assistance of counsel when his trial counsel failed to timely produce his expert witness’s report, resulting in a sanction limiting the expert’s testimony at trial; (2) whether the circuit court erred by declining to exclude from the courtroom during trial R.C.’s maternal grandmother, D.O., when Curtis’s theory of defense was that D.O. was the third-party perpetrator of the crime; (3) whether the court erred by admitting testimony by a law enforcement officer regarding nonverbal behavior by Curtis during an interview, which Curtis asserts amounted to impermissible opinion testimony as to Curtis’s truthfulness; and (4) whether Curtis is entitled to a new trial in the interest of justice and whether he received a constitutionally fair trial as a result of these errors.

As to the first issue, we conclude that Curtis’s ineffective assistance of counsel claim fails because Curtis has not shown that he was prejudiced by trial counsel’s failure to timely produce the expert report. As to the second issue, we conclude that Curtis has not shown that the circuit court erroneously exercised its discretion by permitting D.O. to remain in the courtroom during the trial. We do not address the third issue, based on Curtis’s concession that he has forfeited it. Finally, we conclude that, because Curtis’s arguments regarding the first three issues fail, he has not shown either that his trial was constitutionally defective or that he is entitled to a new trial in the interest of justice. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Summit Credit Union v. David L. Mancl

Case No.: 2018AP2346

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

Focus: Failure to Pay– Disposal of Counterclaims

Summit Credit Union initiated this action in the Dane County Circuit Court seeking a money judgment against David L. Mancl after Mancl failed to pay amounts due on his credit card account with Summit. Mancl counterclaimed alleging that Summit violated provisions of the Wisconsin Consumer Act (WIS. STAT. chs. 421-427). The circuit court granted summary judgment in favor of Summit on its claim for a money judgment against Mancl and on some of Mancl’s counterclaims. The case proceeded to a jury trial on the remaining counterclaims. At the close of Mancl’s evidence, the circuit court granted Summit’s motion to dismiss the remaining counterclaims. Mancl appeals the circuit court’s rulings disposing of his counterclaims. We affirm.

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WI Court of Appeals – District IV

Case Name: Steven K. Stack v. Donald Lecheler

Case No.: 2019AP473

Officials: GRAHAM, J.

Focus: Judgment – Damages 

Donald Lecheler, pro se, appeals a $2,000 small claims judgment in favor of his former tenant, Steven K. Stack. I affirm in part, reverse in part, and remand with instructions to enter a modified judgment in favor of Stack in the amount of $1,000.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Elizabeth Farrell

Case No.: 2019 WI 88

Focus: Attorney Disciplinary Proceedings

The Office of Lawyer Regulation (OLR) and Attorney Elizabeth Farrell have filed a stipulation pursuant to Supreme Court Rule (SCR) 22.12 that Attorney Farrell be publicly reprimanded, as discipline reciprocal to that imposed by the Supreme Court of the State of Oregon. Because this matter was resolved without the need to appoint a referee, we do not impose any costs upon Attorney Farrell.

Publicly Reprimanded.

Concur:

Dissent:

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