Weekly Case Digests – March 30, 2020 – April 3, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Shawn A. Lee

Case No.: 19-1300

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

Focus: Sentencing Guidelines – Supervised Release

Shawn Lee sold a staggering amount of ice methamphetamine in Central Illinois from early 2015 until his arrest in January 2018. He now appeals his sentence after pleading guilty to one count of possessing 50 grams or more of methamphetamine with intent to distribute and one count of possessing firearms in furtherance of a drug trafficking crime. Lee contends he should not have received two extra criminal history points under U.S.S.G. § 4A1.1(d) for dealing methamphetamine while on supervision for a drunk driving offense. He also challenges the district judge’s imposition of a fine and a term of supervised release that will prohibit him from interacting with known felons unless he receives the probation officer’s permission. Because this supervision term violates the rule against delegating Article III power, we vacate the condition and remand for reassessment. We affirm on all other grounds.

Vacated and remanded in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Marvin Cates

Case No.: 19-1042

Officials: WOOD, Chief Judge, and HAMILTON and SCUDDER, Circuit Judges.

Focus: Ineffective Assistance of Counsel

Marvin Cates pleaded guilty to possessing a firearm as a person with a prior felony conviction in violation of 18 U.S.C. § 922(g)(1). After the court accepted his guilty plea, Cates sought to withdraw it. The district judge denied the motion to withdraw the plea and sentenced Cates.

Cates has appealed, claiming ineffective assistance of counsel. He says that he made a timely request to withdraw his guilty plea and that his trial counsel was deficient in failing to move to withdraw it. We questioned whether Cates truly wishes us to decide his ineffective‐assistance claim on this record, including a directive to his appellate counsel to review the question with him after oral argument. He has insisted that he wants to have his claim decided on the existing record. Because the record contains insufficient evidence to support Cates’s ineffective‐assistance claim, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kenyatta Bridges v. Thomas J. Dart, et al.,

Case No.: 19-1791

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

Focus: Prisoner

Kenyatta Bridges was a pretrial detainee at the Cook County Department of Corrections (“Department”) when he fell out of the upper bunk to which he had been assigned and injured himself. He sued Thomas J. Dart, the Sheriff of Cook County, Illinois (“Sheriff”) in his official capacity, and Cook County, Illinois (“County”), asserting that the injuries he sustained were caused by the defendants’ practice of ignoring medically necessary lower bunk prescriptions. The district court granted summary judgment in favor of the defendants and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ali Gadelhak v. AT&T Services, Inc.,

Case No.: 19-1738

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

Focus: TCPA Violation

The wording of the provision that we interpret today is enough to make a grammarian throw down her pen. The Telephone Consumer Protection Act bars certain uses of an “automatic telephone dialing system,” which it defines as equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” as well as the capacity to dial those numbers. We must decide an issue that has split the circuits: what the phrase “using a random or sequential number generator” modifies.

We’ll save the intense grammatical parsing for the body of the opinion—here, we’ll just give the punchline. We hold that “using a random or sequential number generator” modifies both “store” and “produce.” The system at issue in this case, AT&T’s “Customer Rules Feedback Tool,” neither stores nor produces numbers using a random or sequential number generator; instead, it exclusively dials numbers stored in a customer database. Thus, it is not an “automatic telephone dialing system” as defined by the Act—which means that AT&T did not violate the Act when it sent unwanted automated text messages to Ali Gadelhak.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Salvatore Picardi

Case No.: 19-1043

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

Focus: Sentencing Guidelines

A jury found Salvatore Picardi guilty of one count of embezzlement by an officer or employee of the United States, in violation of 18 U.S.C. § 654. The district court sentenced Picardi to a term of eight months’ imprisonment and a fine of $100,000. On appeal, Picardi objects to the amount of the fine and to the adequacy of the district court’s explanation for imposing an above-Guidelines fine. Because Picardi waived any argument regarding the fine, we dismiss the appeal.

Dismissed

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7^th Circuit Court of Appeals

Case Name: Merle L. Royce v. Michael R. Needle P.C., et al.

Case No.: 19-2241

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

Focus: Attorney Fees

After Michael R. Needle P.C. (“Needle P.C.”) went months without counsel in a fee dispute action and was on the verge of a default judgment, three partners from the law firm Cozen O’Connor stepped in to represent Needle P.C. Their representation successfully staved off the pending default motion but was otherwise short-lived. Less than three months after appearing as counsel, Cozen O’Connor understandably withdrew due to irreconcilable differences and a total breakdown of the attorney–client relationship. Cozen O’Connor sought to be compensated for its work, though, under a quantum meruit theory and perfected an attorney’s lien. The district court then granted Cozen O’Connor’s petition to adjudicate and enforce the lien. Because Cozen O’Connor is entitled to recover in quantum meruit and the district court properly concluded that the petitioned fees were reasonable, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Merle L. Royce v. Amari Company, Inc., et al.,

Case No.: 18-2850; 18-2851; 18-3725; 19-1054

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

Focus: Attorney Fees

This dispute over attorney’s fees has a long, tortured history. Not because it is unduly complex or involves novel legal issues, but because one of the attorneys— Michael R. Needle—protracted it every step of the way. He routinely and unapologetically tested the district court’s patience, disregarded court orders, and caused unnecessary delays. As a result, the district court sanctioned Needle multiple times for “obstructionist and vexatious” tactics.

The fee dispute arose only because Needle steadfastly took an objectively frivolous position that he and his co-counsel, Merle L. Royce, were entitled to the lion’s share—almost sixty percent—of their clients’ settlement in an underlying suit as attorney’s fees. Even Royce rejected Needle’s position because the plain language of the contingent fee agreement provided that attorney’s fees shall be one-third of the settlement. The district court found the same, and then decided a sub-dispute over the division of the aggregate attorney’s fee between Royce and Needle under a separate co-counsel agreement. The court awarded Needle sixty percent and Royce forty percent of the aggregate attorney’s fee.

Needle appeals both decisions relating to the attorney’s fee, the sanctions assessed against him, and a host of other perceived errors. We affirm the judgment in all respects because the district court’s rulings were correct, the sanctions were appropriate, and Needle’s other arguments are baseless.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mary Lou Stelter v. Wisconsin Physicians Service Insurance Corporation

Case No.: 18-3689

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

Focus: ADA Violation

This appeal is brought by Mary Lou Stelter against her former employer, Wisconsin Physicians Service Insurance Corporation (“WPS”), for discrimination and retaliation in violation of the Americans with Disabilities Act of 1990 (“ADA”). Alleging she was disabled under the ADA with back pain that was aggravated by an injury at work, Stelter contends WPS discriminated and retaliated against her, failed to accommodate her disability, and ultimately terminated her based on pretext. The record shows Stelter was terminated for a pattern of job absenteeism and deficiency. The district court granted summary judgment in favor of WPS. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. David G. Dudas

Case No.: 2016AP2443-CR

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

Focus: Jury Instructions

David Dudas appeals a judgment, entered upon a jury’s verdict, convicting him of fourteen counts of second-degree sexual assault by use of force, eleven counts of strangulation and suffocation, and one count each of first-degree sexual assault, second-degree reckless injury, substantial battery, misdemeanor intimidation of a witness, and misdemeanor battery. He also appeals an order denying his motion for postconviction relief.

On appeal, Dudas contends that: (1) the circuit court erred by refusing to read to the jury Dudas’ proposed instruction regarding the interplay of a victim’s consent relative to the statute criminalizing suffocation and strangulation, WIS. STAT. § 940.235 (2017-18); (2) the court improperly limited Dudas’ ability to cross-examine the victim (Dudas’ then-spouse, Jane); (3) his right to a unanimous jury was violated; (4) his right to fair notice that his conduct was prohibited by law was violated; (5) the evidence, as to twelve of the counts, was insufficient to support a conviction; and (6) the jury instruction defining the State’s burden of proof violated Dudas’ due process rights. Further, given these asserted errors, Dudas argues that we should order a new trial in the interest of justice. We conclude that each of Dudas’ arguments either lacks merit or is forfeited. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Casey T. Wittmann

Case No.: 2018AP1623-CR

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

Focus: Sentence Modification

Casey Wittmann appeals a judgment of conviction and an order denying his postconviction motion for sentence modification. Wittmann argues the circuit court deviated from the proper sentencing procedure and deprived him of his lawfully earned sentence credit. At the inception of the sentencing hearing, and again after analyzing the relevant sentencing factors but immediately before pronouncing a sentence, the court inquired about the amount of sentence credit Wittmann was owed, which was ultimately stipulated to be 245 days. The court ordered a ten-year sentence, consisting of three years, nine months’ initial confinement and six years, three months’ extended supervision. Under the circumstances present here, we conclude Wittmann has not met his burden of establishing that the court improperly lengthened his sentence in order to offset the sentence credit to which he was entitled. Consequently, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Bartosz Mika

Case No.: 2019AP1488

Officials: GUNDRUM, J.

Focus: Unlawful-stop Claim – Reasonable Suspicion

Bartosz Mika appeals from an order revoking his driver’s license pursuant to WIS. STAT. § 343.305(10) for refusing to provide a requested breath sample following his arrest for operating a motor vehicle while intoxicated (OWI). Mika argues that the court entered the order in error because the traffic stop lacked the requisite reasonable suspicion and, thus, there was no lawful basis for it. Mika complains that, following the close of the State’s case, the court agreed with him that the State failed to establish reasonable suspicion for the stop but then erred in sua sponte reopening the evidence portion of the hearing, adjourning the matter and, at the continued hearing, allowing the State to put in additional evidence on reasonable suspicion. Mika also insists that even with that additional evidence, the State still failed to establish reasonable suspicion for the stop. For the following reasons, we affirm the circuit court

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Ryan C. Diehl

Case No.: 2019AP1176-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: OWI – Ineffective Assistance of Counsel

Ryan Diehl appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC) and an order denying his motion for postconviction relief. Because Diehl had been previously convicted of three or more OWI offenses, the PAC that applied to him was only .02, not .08 as it is for most drivers. Diehl stipulated to his prior OWI convictions for purposes of establishing that he was subject to a .02 PAC. Therefore, consistent with State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), evidence of his prior convictions was inadmissible at trial. The prosecutor nevertheless asked multiple questions that invited the jury to infer that Diehl was a repeat offender with multiple OWI convictions.

Diehl argues that the prosecutor’s questions were irrelevant and unfairly prejudicial under the circumstances and that his trial counsel was constitutionally ineffective for failing to object to them. We agree, and accordingly we vacate the conviction and remand for a new trial.

Recommended for Publication

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Tracey A. B.,

Case No.: 2020 WI 18

Focus: Attorney Disciplinary Hearing

This matter involves a Wisconsin attorney, Tracey A. Berry, who is also licensed to practice law in Tennessee. On July 29, 2019, the Supreme Court of Tennessee issued an order transferring Attorney Berry to disability inactive status for an indefinite period of time. Accordingly, the Office of Lawyer Regulation (OLR) has informed the court, and Attorney Berry does not dispute, that Attorney Berry is subject to a reciprocal suspension for medical incapacity in Wisconsin. Supreme Court Rule (SCR) 22.22. The OLR and Attorney Berry filed a stipulation pursuant to SCR 22.12, agreeing that Attorney Berry’s license to practice law in Wisconsin should be suspended indefinitely for her medical incapacity. After reviewing the matter, we approve the stipulation. We impose no costs in this matter.

License indefinitely suspended

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Michael M. Krill

Case No.: 2020 WI 20

Focus: Attorney Disciplinary Hearing

This case is before us pursuant to Supreme Court Rule (SCR) 22.14(2) and SCR 22.17(2) on a stipulation between the parties, Attorney Michael M. Krill and the Office of Lawyer Regulation (OLR). In the stipulation, Attorney Krill pled no contest to 24 counts of misconduct as alleged in the OLR’s third amended complaint. The referee issued a report recommending, consistent with the stipulation, that the court suspend Attorney Krill’s license to practice law for three years, retroactive to August 23, 2017, order Attorney Krill to pay restitution to two clients, make satisfaction of a judgment as a condition of any future reinstatement, and order Attorney Krill to pay the full costs of this proceeding, which total $21,247.90 as of October 23, 2019.

We approve the referee’s recommendations with respect to the stipulated findings of fact and conclusions of law and we adopt those findings and conclusions. We determine that a three-year suspension is insufficient given the extremely serious nature of the misconduct. We suspend Attorney Krill’s license to practice law for four and one-half years, retroactive to August 23, 2017. We agree with the other recommended sanctions.

License suspended

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Richard E. Reilly

Case No.: 2020 WI 19

Focus: Attorney Disciplinary Hearing

Attorney Richard E. Reilly has appealed a report and recommendation filed by Referee John B. Murphy, finding that Attorney Reilly committed five counts of professional misconduct and recommending that his license to practice law in Wisconsin be suspended for 60 days. Attorney Reilly has stipulated to the misconduct. He has appealed the referee’s recommendation for a 60-day suspension and argues that a public reprimand is an appropriate sanction.

Upon careful review of this matter, we uphold the referee’s findings of fact and conclusions of law. We agree with the referee that a 60-day suspension of Attorney Reilly’s Wisconsin law license is an appropriate sanction for his misconduct. We also agree that Attorney Reilly should be required to satisfy any financial obligations that may be imposed by the circuit court in the E.M. case. In addition, we find it appropriate to follow our normal custom of imposing the full costs of this proceeding, which are $15,830.87 as of September 5, 2019, on Attorney Reilly.

License suspended

Concur:

Dissent: ZIEGLER J., dissents, joined by REBECCA GRASSL BRADLEY, J.
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