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Weekly Case Digests – April 20, 2020 – April 24, 2020

By: WISCONSIN LAW JOURNAL STAFF//April 24, 2020//

Weekly Case Digests – April 20, 2020 – April 24, 2020

By: WISCONSIN LAW JOURNAL STAFF//April 24, 2020//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Monique S. Bowling

Case No.: 19-2110

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

Focus: Abuse of Discretion – Subject-matter Jurisdiction

Monique Bowling purchased over $1.3 million worth of computer equipment on the City of Gary, Indiana’s vendor accounts and then sold the devices for cash, leaving the city to foot the bill. This all occurred at a time when the City of Gary was already in dire financial condition. The grand jury returned an indictment against Bowling for theft from a local government that received federal funds, 18 U.S.C. § 666. A jury convicted Bowling of the charge and the district court sentenced her to 63 months in prison. On appeal, Bowling contends that the district court lacked subject-matter jurisdiction, abused its discretion in admitting certain testimony, and erred in enhancing her sentence for obstructing justice through her malingering. We affirm the conviction and sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Monica Hernandez

Case No.: 19-1505

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines – Restitution

A jury found Monica Hernandez guilty of mail fraud for her participation in a fraudulent mortgage trust company. Hernandez appeals her conviction, arguing that the government did not prove that she used the mails in furtherance of the scheme to defraud. Her sentence also includes sizable restitution, and she contends that the district court improperly delegated its authority to the Bureau of Prisons by not entering a specific payment schedule for her to follow while serving her prison sentence. But sufficient evidence supports the mail fraud convictions, and the district court permissibly deferred Hernandez’s restitution payments until after her release, so we affirm the judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Brickstructures, Inc., v. Coaster Dynamix, Inc.,

Case No.: 19-2187

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

Focus: Arbitration

Brickstructures, Inc. and Coaster Dynamix, Inc. joined forces to create a LEGO‐compatible roller coaster set. The venture later soured, and Brickstructures filed a lawsuit in federal court against its former partner. The two companies had signed an agreement that contained an arbitration provision. Coaster Dynamix invoked that provision in a second motion to dismiss. Brickstructures viewed the motion as untimely (indeed frivolous) and stated so in a letter that threatened sanctions if Coaster Dynamix did not withdraw its motion. The tactic worked, and Coaster Dynamix withdrew its arbitration demand. When Coaster Dynamix renewed the argument in a motion to compel arbitration, the district court denied the resurrected request on the ground that the earlier withdrawal amounted to a waiver of the right to arbitrate. We agree.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Terrill A. Rickmon, Sr.,

Case No.: 19-2054

Officials: WOOD, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

Focus: Unlawful-stop Claim – Reasonable Suspicion

One hundred police departments use a surveillance network of GPS-enabled acoustic sensors called ShotSpotter to identify gunfire, quickly triangulate its location, and then direct officers to it. As a matter of first impression, this case requires us to consider whether law enforcement may constitutionally stop a vehicle because, among other articulable facts, it was emerging from the source of a ShotSpotter alert. The district court held that the totality of the circumstances provided the officer responding to the scene with reasonable suspicion of criminal activity to justify the stop. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jose Vargas, et al. v. Cook County Sheriff’s Merit Board, et al.,

Case No.: 19-1686

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

Focus: Due Process Violation

This § 1983 case arises out of disciplinary decisions issued by the Cook County Sheriff’s Merit Board between 2013 and 2016. The plaintiffs are current and former sheriff’s deputies and correctional officers who were disciplined for violating various departmental policies and rules. Seven of the eight plaintiffs were fired; the remaining officer was suspended. They seek to represent a class of officers who were disciplined during the relevant time period.

The complaint alleges two claims for deprivation of due process. The first rests on a defect in the composition of the Merit Board: at the time of the challenged disciplinary decisions, certain Board members held their appointments in violation of Illinois law. The second alleges that Cook County Sheriff Thomas Dart and Nicholas Scouffas, his General Counsel, assumed control of the Board through political means and pressured its members to make decisions contrary to Illinois law. The plaintiffs also seek relief under multiple state-law theories.

The district judge dismissed the due-process claims and relinquished jurisdiction over the state-law claims. We affirm that judgment. A violation of state law is not a federal due-process violation, so the defect in the Board’s membership is not a basis for a federal constitutional claim. And the allegations of biased decisionmaking suggest only that the plaintiffs may have suffered a random and unauthorized deprivation of their property interest in public employment. An injury of that type is not a violation of due process as long as the state offers adequate postdeprivation remedies. We have long held that Illinois provides constitutionally adequate postdeprivation remedies for aggrieved public employees. The judge properly dismissed this suit.

Affirmed

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7th Circuit Court of Appeals

Case Name: Florence Mussat, M.D., S.C., v. IQVIA, Inc., et al.,

Case No.: 19-1204

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

Focus: Class Action – Personal Jurisdiction

Florence Mussat, an Illinois physician doing business through a professional services corporation, received two unsolicited faxes from IQVIA, a Delaware corporation with its headquarters in Pennsylvania. These faxes failed to include the opt-out notice required by federal statute. Mussat’s corporation (to which we refer simply as Mussat) brought a putative class action in the Northern District of Illinois under the Telephone Consumer Protection Act, 47 U.S.C. § 227, on behalf of itself and all persons in the country who had received similar junk faxes from IQVIA in the four previous years. IQVIA moved to strike the class definition, arguing that the district court did not have personal jurisdiction over the non-Illinois members of the proposed nationwide class.

The district court granted the motion to strike, reasoning that under the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), not just the named plaintiff, but also the unnamed members of the class, each had to show minimum contacts between the defendant and the forum state. Because IQVIA is not subject to general jurisdiction in Illinois, the district court turned to specific jurisdiction. Applying those rules, see Walden v. Fiore, 571 U.S. 277, 283–86 (2014), it found that it had no jurisdiction over the claims of parties who, unlike Mussat, were harmed outside of Illinois. We granted Mussat’s petition to appeal from that order under Federal Rule of Civil Procedure 23(f). We now reaffirm the Rule 23(f) order, and we hold that the principles announced in Bristol-Myers do not apply to the case of a nationwide class action filed in federal court under a federal statute. We reverse the order of the district court and remand for further proceedings.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Sheila Geary

Case No.: 19-2299

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

Focus: Sentencing Guidelines – Enhancement

This case is the culmination of a grotesque history of sexual abuse in the Geary household. Over a number of years, David Geary—Sheila Geary’s husband—raped, sexually abused, and took pornographic photos of the Gearys’ youngest daughter when she was between the ages of 5 and 8. During a period in which the couple hoped to “spice up their marriage,” Sheila viewed the pornographic photos that David took of their daughter— identified as “MF-2”—and also found other images of child pornography to share with David. In addition, Sheila kept the illicit photos of MF-2 on a thumb drive hidden behind a mirror in their home. She kept them, she said, in case “[s]hit hit the fan and [she] needed some proof.”

Ultimately, David and Sheila were indicted as codefendants, and Sheila pleaded guilty to one count of possession of child pornography. She was sentenced to 57 months’ imprisonment and 5 years’ supervised release, and she was ordered to pay $55,600 in restitution jointly and severally with David. On appeal, she argues both that the district court incorrectly applied a Sentencing Guidelines provision that enhanced her recommended sentencing range and that the district court failed to adequately explain her restitution liability. We disagree with both arguments.

Affirmed

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7th Circuit Court of Appeals

Case Name: Benjamin N. Omorhienrhien v. William P. Barr

Case No.: 19-2175

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

Focus: Immigration – Removal Proceedings

Benjamin Omorhienrhien is a Nigerian citizen who received conditional permanent resident status based on his marriage to a United States citizen. The two later divorced, and Omorhienrhien sought to remain in the country by submitting a petition to remove the conditions on his residency. An obstacle loomed—the petition must ordinarily be jointly filed by the non-citizen and his spouse, but Omorhienrhien’s former spouse was no longer in the picture. To sidestep the roadblock, Omorhienrhien requested a discretionary waiver of the joint-filing requirement, which is available to non-citizens who entered their failed marriages in good faith. After hearing all the evidence, an immigration judge was not persuaded that Omorhienrhien married his wife in good faith and denied him the waiver. The Board of Immigration Appeals agreed and dismissed the appeal. Omorhienrhien now asks us to step in. Because our review is limited to legal errors and we find none, we decline to do so.

Petition for review denied

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7th Circuit Court of Appeals

Case Name: Levi A. Lord v. Joseph Beahm, et al.

Case No.: 19-1346

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

Focus: Prisoner – Deliberate Indifference

Levi Lord, an inmate in the Waupun Correctional Institution in Wisconsin, exposed himself to a female guard. After the guard told him that she would write him up and walked away, Lord began yelling that he had a razor blade and intended to kill himself. A short while later, a male guard went to Lord’s cell, ordered him out, and saw he had minor scratches treatable with a gauze bandage. Lord nonetheless invoked 42 U.S.C. § 1983 and sued four guards for money damages, alleging that they acted with deliberate indifference to a material risk to his life by not responding faster to his suicide threat. The district court rejected the claim and entered summary judgment for the defendants.

Prison suicide is very real and very serious, but any fair reading of this record, even in the light most favorable to Lord, shows that he leveled an insincere threat of suicide to get attention and demonstrated no recoverable injury. Other fact patterns may yield different outcomes, but here the resolution is clear. We affirm, as Lord (thankfully) did not hurt himself and that reality leaves nothing for a jury to decide.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jessica Arong O’Brien

Case No.: 19-1004

Officials: WOOD, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

Focus: Sufficiency of Evidence

A jury found Jessica A. O’Brien guilty of both bank fraud and mail fraud affecting a financial institution based on her participation in a 2004-to-2007 mortgage fraud scheme. She appeals her convictions, arguing that the charges against her were duplicitous and that under a properly pled indictment the statute of limitations would have barred three of the four alleged offenses. She also argues that the district court should not have admitted evidence offered to prove those time-barred offenses and that there was insufficient evidence to support the jury’s guilty verdict.

We affirm. The government appropriately acted within its discretion to allege an overarching scheme to commit both bank fraud and mail fraud affecting a financial institution. Each count included an execution of the fraudulent scheme within the applicable ten-year statute of limitations, and the jury’s guilty verdict rested upon properly admitted and sufficient evidence of the charged offenses.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Hamza Dridi a/k/a Alex

Case No.: 18-3334

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

Focus: Sentencing Guidelines

From 2012 to 2015, employees of Elite Imports, a car dealership, engaged in a variety of fraudulent activities. For his involvement in these illegal schemes, one employee, Hamza Dridi, was charged with conspiring to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d), and interstate transportation of stolen property, 18 U.S.C. § 2314. A jury found him guilty of both crimes. The district court sentenced him to 72 months in prison and ordered $1,811,679.25 in restitution.

Dridi now challenges his sentence and the restitution order, arguing that the district court—before sentencing Dridi and ordering restitution—should have made specific factual findings about Dridi’s participation in the conspiracy.

We agree with Dridi that the district court erred both by not making specific factual findings prior to sentencing Dridi and by not adequately demarcating the scheme before imposing $1,811,679.25 in restitution. But because only the second error affected Dridi’s substantial rights, we affirm Dridi’s prison sentence, vacate the restitution order, and remand the issue of restitution for further 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 I

Case Name: Willie P. Watkins v. Pension Board of the Employees Retirement System of the County of Milwaukee

Case No.: 2018AP2063

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

Focus: ERISA – Pensions

Willie P. Watkins appeals the trial court’s order affirming the decision of the Pension Board of the Employees’ Retirement System of the County of Milwaukee (Board) that upheld the denial of Watkins’ application to retire under the Rule of 75. Under the Milwaukee County Employee Retirement System (ERS), the County affords certain county employees the option of early retirement with what is called the Rule of 75 enabling them to receive a full pension when the age of the member plus the member’s years of county service equal seventy-five. See § 4.1(2).

Watkins argues that (1) the trial court failed to articulate and apply a proper standard of review; (2) the Board’s interpretation of § 11.4(c)3 of the county’s pension ordinance was unreasonable; and (3) the Board improperly reviewed and relied upon a confidential March 2017 fiscal analysis in denying his retirement application. We disagree and, for the following reasons, affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin ex rel. Patrick H. Schober v. Brian Hayes

Case No.: 2018AP2064

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

Focus: ALJ Error – Extended Supervision

Patrick Schober’s extended supervision was revoked following a hearing before an administrative law judge (ALJ), and he was ordered reconfined. On appeal from the ALJ’s revocation and reconfinement determinations, the administrator of the Wisconsin Department of Administration Division of Hearings and Appeals (DHA) concluded revocation was supported by the record and then ordered the amount of reconfinement time increased to the maximum allowed.

Schober filed a petition for a writ of certiorari in the circuit court. The court dismissed his petition on the merits without issuing the writ or otherwise ordering a return of the record, and it also denied Schober’s motion for reconsideration. The administrator acknowledges the circuit court’s dismissal of the petition on the merits without issuing the writ or ordering a return of the record was an apparent violation of State ex rel. Kaufman v. Karlen, 2005 WI App 14, 278 Wis. 2d 332, 691 N.W.2d 879 (2004). The administrator nonetheless argues that the orders should be affirmed because Schober’s petition failed to state a claim upon which relief could be granted.

We conclude Schober’s petition stated two claims that, if proven, would entitle Schober to certiorari relief. First, Schober alleged that the DHA administrator improperly discounted the availability and feasibility of his proposed alternative to revocation by failing to consider his posttraumatic stress disorder (PTSD) diagnosis. Second, he alleged the administrator unlawfully retaliated against him for appealing the ALJ’s determination. We reverse the dismissal of his petition in part and remand with directions for the circuit court to issue the writ of certiorari and set a briefing schedule and deadlines for the production of the record on the two viable issues. The orders are affirmed in all other respects.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Corey Stauner

Case No.: 2019AP81-CR

Officials: SEIDL, J.

Focus: Sufficiency of Evidence

Corey Stauner appeals a judgment, entered upon a jury’s verdict, convicting him of two counts of misdemeanor bail jumping. He also appeals an order denying him postconviction relief. Stauner argues that there was insufficient evidence to convict him on one of the bail jumping counts, which was based upon the State’s allegation that he violated the terms of a misdemeanor bond by committing the new crime of resisting an officer while subject to the bond. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. D.L.

Case No.: 2019AP2331

Officials: BRASH, P.J.

Focus: Termination of Parental Rights

D.L. appeals an order of the trial court terminating his parental rights of Y.P.-T. D.L. asserts that the court erroneously exercised its discretion in excluding evidence relating to a prior trial regarding D.L.’s parental rights of Y.P.-T., in which the State was unsuccessful in proving that D.L. had failed to assume parental responsibility of Y.P.-T. We affirm.

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WI Court of Appeals – District I/II

Case Name: State of Wisconsin v. Demarco Lee As-Saffat

Case No.: 2017AP2084-CR

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

Focus: Ineffective Assistance of Counsel

Demarco Lee As-Saffat appeals pro se from a judgment of conviction and an order denying his postconviction motion.  He contends that (1) he was improperly charged; (2) he was denied the right to self-representation; (3) he received ineffective assistance of counsel; and (4) he is entitled to a new trial in the interest of justice. We disagree and affirm

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kelly C. Richardson

Case No.: 2019AP1650-CR

Officials: GUNDRUM, J.

Focus: OWI – Reasonable Suspicion

Kelly C. Richardson appeals from a judgment of conviction for operating a motor vehicle while intoxicated, third offense. Richardson asserts the circuit court erred in denying her motion to suppress evidence, which it denied based upon its determination that the arresting law enforcement officer had reasonable suspicion to temporarily detain her for investigative purposes. Because we conclude the court did not err, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeffery L. Summers

Case No.: 2019AP53-CR

Officials: Blanchard, Kloppenburg, and Nashold, JJ.

Focus: Search Warrant – Probable Cause

Jeffery L. Summers appeals the circuit court’s denial of his motion to suppress evidence, and his subsequent judgment of conviction for two counts of delivery of tetrahydrocannabinols (THC). Summers challenges the validity of a search warrant that authorized the search and seizure of evidence at his residence based on a supporting affidavit that referenced, in chronological order, statements by a confidential informant, an unconstitutional video-recorded search of Summers’ residence, and three controlled buys of marijuana by the informant from Summers. Specifically, Summers argues that the affidavit did not suffice to establish probable cause because it was tainted by an unconstitutional search. Following the analysis set forth in State v. Carroll, 2010 WI 8, ¶28, 322 Wis. 2d 299, 778 N.W.2d 1, we reject Summers’ arguments and affirm.

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