Weekly Case Digests – June 22, 2020 – June 26, 2020

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Eugene Falls

Case No.: 19-3050

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

Focus: Sentencing – Supervised Release

Eugene Falls appeals the revocation of his supervised release. He argues that the district court erred during his revocation hearing by not conducting an explicit “interest of justice” analysis under Federal Rule of Criminal Procedure 32.1(b)(2)(C) before admitting an audio recording of an interview during which he confessed to the violation in question.

We held in United States v. Jordan that when a district court is deciding whether to admit hearsay at a revocation hearing, it must explicitly conduct an interest-of-justice analysis under Rule 32.1(b)(2)(C) by balancing the defendant’s interest in confrontation against the government’s stated reasons for not making the declarant available for cross-examination. 742 F.3d 276, 280 (7th Cir. 2014). Jordan does not apply here, however, because the probative statements in the audio recording were Falls’s own non-hearsay statements.

Falls suggests that we should nevertheless extend Jordan to require an explicit application of Rule 32.1(b)(2)(C)’s interest-of-justice balancing test given his interest in questioning his interviewing officer about the nature and circumstances of his interview. Falls has not shown, however, that his interviewing officer was an “adverse witness” that Rule 32.1(b)(2)(C) entitled him to question subject to an interest-of justice determination. Accordingly, we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Warren N. Barr, III

Case No.: 19-1238

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

Focus: Plea & Sentencing – Plea Withdrawal

In 2014, the federal government charged Warren Barr with federal crimes for his role in a fraudulent real-estate-selling scheme in Chicago. But when law-enforcement officers went to arrest Barr, they discovered he was living in Saudi Arabia. For months, FBI agents attempted to extradite Barr to the United States. Despite this effort, and before the agents could get to Barr, Saudi Arabian officials detained him for unrelated conduct.

Thereafter, Barr spent several months in a Saudi Arabian prison—and once he was released, federal agents brought him back to the United States to face the federal charges against him. Barr pled guilty to making false statements to a financial institution, and he then filed a variety of motions: he asked the district court to allow more time for newly retained counsel to obtain government clearance and review classified materials; to dismiss the indictment; and to withdraw his guilty plea. The district court denied these motions and entered an order finding Barr guilty.

At his sentencing hearing, Barr tried to argue that his time in Saudi Arabia should be a mitigating factor. The district court disagreed and prevented Barr from advancing this argument at the hearing. Frustrated with this result, Barr sought the judge’s recusal. The judge denied the recusal motion and sentenced Barr to 87 months’ imprisonment.

Now Barr challenges his sentence and the district court’s orders denying his motions for additional time, the dismissal of the indictment, the withdrawal of his guilty plea, and the judge’s recusal. Because we find no error in any of these rulings, we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Maurice A. Withers

Case No.: 17-3448

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

Focus: Jury Instructions

Maurice Withers made a living trafficking women and girls for sex. After months of abuse, numerous victims were identified by law enforcement. Withers was arrested and charged with nine counts of sex trafficking.

As the case proceeded to trial, the government proposed jury instructions on four of those counts that would have allowed Withers to be found guilty if he either knew or recklessly disregarded that force, threats of force, or coercion would be used to cause the women to engage in commercial sex acts. The “recklessly disregarded” mens rea element was absent, however, from the superseding indictment against Withers. The district court ruled, and the parties agreed, that the jury instructions would not include that phrase. Yet at trial the court’s instructions included this phrase, and neither the court nor the parties recognized the error. A jury found Withers guilty on all counts.

On appeal Withers challenges the four convictions that included the inaccurate instructions, arguing the jury was improperly allowed to consider a lesser mental state. While we agree those instructions were plainly wrong, we conclude that the error did not affect Withers’ substantial rights or otherwise prejudice his trial, so we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Haiyan Chen v. William P. Barr

Case No.: 19-2375

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

Focus: Immigration – Removal Order

Haiyan Chen, a citizen of China, entered the United States without inspection (that is, by stealth) in 2004. She was detected in 2010, and immigration officials opened removal proceedings. The charging document is called a “Notice to Appear,” and a form with that caption was dated April 27, 2010. The form did not meet the statutory requirements for a Notice to Appear, however, because it omitted the time and place for a hearing. See 8 U.S.C. §1229(a)(1)(G)(i); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Immigration officials sent Chen a separate document, dated July 29, 2010, with that information. Chen appeared as ordered, and many other hearings followed. She asked for asylum, which an immigration judge denied on the ground that 8 U.S.C. §1158(a)(2)(B) gives aliens only one year after entering the United States to request that relief. The Board of Immigration Appeals dismissed her appeal on March 28, 2017, and we denied a petition for review. Chen v. Sessions, No. 17-1797 (7th Cir. Jan. 4, 2018) (nonprecedential).

In September 2018 Chen filed a motion asking the Board to reopen her case so that she could seek cancellation of removal, a remedy available to some aliens who have lived in the United States for a decade. She recognized that the motion was untimely—a statute allows only 90 days after the Board’s original decision, see 8 U.S.C. §1229a(c)(7)(C)(i)—but asked for the benefit of equitable tolling. She also recognized that she had not sought cancellation of removal during the original proceedings, even though they continued past the tenth anniversary of her arrival. She contended that, until the Supreme Court issued Pereira in June 2018, neither she nor her lawyers recognized that she might be eligible for that relief. Pereira opened their eyes, and Chen contended that she should receive its benefit.

Exhaustion of administrative remedies provides an example. Exhaustion is a condition of judicial review in immigration cases, 8 U.S.C. §1252(d)(1), but not a subject within the scope of Chenery. When an alien fails to raise an issue on time, in the right way, or at all, before the Immigration Judge and the Board of Immigration Appeals, the court denies the petition for review under §1252(d)(1) without sending the proceeding back to ask the Board what it thinks about the subject. A procedural forfeiture is an adequate reason to end the process of judicial review. That’s what has occurred here: Chen took far too long to contest the adequacy of the charging document, just as Ortiz-Santiago did. If Chen had advanced a plausible argument that she suffered prejudice, we would remand for the Board to consider that possibility. But, as we have mentioned, Chen amended every scheduled hearing and does not explain how the use of two documents rather than one prejudiced her. It is the agency that potentially suffers prejudice from Chen’s delay: the problem could have been fixed in 2010 or 2011 or 2012 or 2013, before Chen had been in the United States for a decade.

There is another way to read Ortiz-Santiago. Perhaps the court bypassed Chenery because any possible error was harmless. That is an established reason for deciding without remand. See Cronin v. Department of Agriculture, 919 F.2d 439, 442–43 (7th Cir. 1990) (futile remands are unnecessary); Borovsky v. Holder, 612 F.3d 917, 920–21 (7th Cir. 2010) (remand is unnecessary when it would lead to a finding of harmlessness). If an application of the harmless-error rule is the best way to understand Ortiz-Santiago, the doctrine is equally applicable to Chen’s situation. The Board rejected Chen’s argument under Mendoza-Hernandez, finding that the two documents added up to one valid Notice to Appear. Forfeiture would have been an alternative ground of decision, here as in Ortiz-Santiago. By ignoring the problem when it could have been fixed, Chen bypassed the benefit of the claim processing rule. A person who allows a procedural error to lurk in the record until the 10 years have passed, and brings it to light only then, has surrendered any opportunity for judicial relief. The petition for review is denied.

Petition denied

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District II

Case Name: State of Wisconsin v. David M. Hay

Case No.: 2018AP2240-CR

Officials: GUNDRUM, J.

Focus: Warrantless Search – Blood Test

The State appeals from an order granting David Hay’s motion to suppress the results of a warrantless blood draw performed after Hay was arrested for fifth offense operating a motor vehicle while intoxicated (OWI) and from an order denying the State’s motion for reconsideration. The State asserts the court erred in granting Hay’s suppression motion because exigent circumstances justified drawing Hay’s blood without a warrant. Because the State failed to meet its burden of demonstrating that the blood draw was lawfully conducted without a warrant, we conclude the court did not err.

Recommended for Publication

Full Text

WI Court of Appeals – District III

Case Name: Nancy Kucharski v. David Meloney, et al.,

Case No.: 2018AP2266

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

Focus: Easement

Nancy Kucharski appeals a judgment dismissing her action to terminate an easement over her property. The circuit court, relying on our decision in Gojmerac v. Mahn, 2002 WI App 22, ¶36, 250 Wis. 2d 1, 640 N.W.2d 178 (2001), concluded that when one of the lots holding an express easement over Kucharski’s property was subdivided in 1997, both owners of the newly created parcels were entitled to make use of the easement.

Kucharski argues that the recording of two certified survey maps (CSMs) in 1979—which together created a six-lot subdivision that included Kucharski’s property and the subsequently subdivided lot at issue in this case— created “a common plan or scheme” intended to prevent the six original lots from being further subdivided. Thus, she contends the circuit court erred by applying Gojmerac to the facts of this case. We disagree and affirm.

Full Text

WI Court of Appeals – District III

Case Name: Catherine Wilcox v. Jerome Wilcox

Case No.: 2019AP107

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

Focus: Abuse of Discretion – Judgment – Filing Fees

Catherine Wilcox appeals from a judgment of divorce, in which the circuit court ordered the partial reimbursement of filing fees, and from an order denying what her notice of appeal designates as a “Motion to Amend the Judgment.” We conclude the circuit court did not err by ordering the filing fee reimbursed because Catherine agreed to pay the fee at the final divorce hearing. Moreover, treating Catherine’s postdivorce motion as one for relief from the judgment, we conclude the court did not erroneously exercise its discretion when it denied that motion. We affirm

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Roberto Cornejo

Case No.: 2019AP464-CR

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

Focus: Ineffective Assistance of Counsel

Roberto Cornejo appeals the judgment convicting him of two counts of first-degree sexual assault of a child. See WIS. STAT. § 940.225(1)(d) (1985-86). He also appeals the order denying his postconviction motion. Cornejo’s first claim is that his trial counsel was ineffective for failing to investigate why he left Wisconsin and eventually settled in Michigan. Next, Cornejo argues that trial counsel was ineffective for failing to object to the introduction of the victim’s medical records showing that she was pregnant and had an abortion. We reject each argument Cornejo makes on appeal and, accordingly, affirm the judgment and order.

Full Text

WI Court of Appeals – District II

Case Name: Kemper Independence Insurance Company v. Ismet Islami

Case No.: 2019AP488

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

Focus: Insurance Claim – Coverage

Ismet Islami (Ismet) appeals a summary judgment order in favor of Kemper Insurance Company (Kemper) denying coverage for loss of her home stemming from a fire intentionally set by Ydbi Islami (Ydbi), from whom Ismet is legally separated. The trial court ruled that coverage to Ismet was barred under a “concealment or fraud” condition of her policy, which provides that “no” insured has coverage if “an” insured, whether before or after the loss, conceals or misrepresents any fact upon which the insurer relies or which contributes to the loss.

The above policy provision is in play because Ydbi, in addition to setting the fire, lied about his misdeeds in sworn post-loss statements to Kemper. Ismet, who indisputably had nothing to do with the arson or Ydbi’s false denial, seeks to avoid what would otherwise be the coverage-defeating consequences of Ydbi’s lies, on three grounds. These are: (1) WIS. STAT. § 631.95 (2017-18) prevents denial of coverage to a domestic abuse victim based on acts of the abuser that cause, or instill fear of causing, physical harm to the victim; (2) because of their legal separation, Ydbi is not Ismet’s “spouse,” and therefore is not an “insured” to whom the “concealment or fraud” provision applies; (3) the policy is “several,” so under the principles articulated in Hedtcke v. Sentry Insurance Co., 109 Wis. 2d 461, 326 N.W.2d 727 (1982), Ydbi’s violation of the “concealment or fraud” condition cannot be imputed to an “innocent insured” such as Ismet. The trial court rejected these arguments and granted summary judgment in favor of Kemper. We affirm.

Recommended for Publication

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mario Emmanuel James

Case No.: 2019AP730

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

Focus: Ineffective Assistance of Counsel

Mario Emmanuel James, pro se, appeals the order denying his WIS. STAT. § 974.06 (2017-18) motion without a hearing. James argues that his postconviction counsel was ineffective for not raising stronger claims and that he has newly discovered evidence. We disagree and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tammy Genevieve Hardenburg

Case No.: 2019AP1399-CR

Officials: Blanchard, Dugan and Donald, JJ.

Focus: Ineffective Assistance of Counsel

Tammy Genevieve Hardenburg appeals a judgment of conviction, following a jury trial, of one count of operating a motor vehicle while under the influence of prescription drugs as a sixth offense. Hardenburg also appeals from the order denying her postconviction motion for relief. Hardenburg contends that confrontation clause violations warrant a new trial because of plain error, or, alternatively, that she received ineffective assistance of counsel such that we should remand for a Machner hearing. We do not address the plain error argument but only whether Hardenburg’s postconviction motion alleged facts sufficient to warrant a hearing on her ineffective assistance of counsel claim. We conclude that the alleged facts were sufficient and accordingly reverse the postconviction order and remand for a Machner hearing.

Full Text

WI Court of Appeals – District II

Case Name: County of Walworth v. John Neighbors

Case No.: 2019AP1491; 2019AP1492; 2019AP1493; 2019AP1494; 2019AP1495; 2019AP1496

Officials: DAVIS, J.

Focus: Prima Facie – Selective Prosecution

John Neighbors appeals from judgments finding him guilty of six county zoning ordinance violations, after the trial court denied his motion to dismiss on the grounds of selective prosecution. On consolidated appeal, Walworth County asserts that Neighbors, by pleading guilty, waived his right to appeal. We disagree and choose to hear Neighbors’ appeal pursuant to County of Ozaukee v. Quelle, 198 Wis. 2d 269, 275-76, 542 N.W.2d 196 (Ct. App. 1995), abrogated on other grounds by Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243. We further hold that the trial court was not clearly erroneous in determining that Neighbors did not establish a prima facie case of selective prosecution. See State v. Kramer, 2001 WI 132, ¶¶17-18, 248 Wis. 2d 1009, 637 N.W.2d 35. We therefore affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Jamie A. Coogan v. Steven R. Michek, et al.

Case No.: 2018AP2350

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

Focus: Mandamus Relief – Huber Release

Jamie Coogan was serving a jail sentence when Iowa County Sheriff Steven Michek determined, based on an inmate classification system created by the Sheriff, that Coogan would not be released under the Huber Law, even though the circuit court had expressly ordered Huber release for Coogan. See WIS. STAT. § 303.08 (2017-18) (“Huber Law” permits a sentencing court to order that a county sheriff allow a county jail inmate to pursue certain types of opportunities, such as employment or education, outside the jail facility “during necessary and reasonable hours”). Coogan brought this action for a writ of mandamus against the Sheriff that would direct the Sheriff to follow the court order in Coogan’s judgment of conviction that granted him Huber release. The circuit court dismissed the writ petition on the ground that the Sheriff has authority under the state constitution and statutes other than the Huber Law to disregard an order for Huber release contained in a judgment of conviction.

We agree with Coogan. The legislature, through specific directions in the Huber Law, has defined the circumstance in which a Wisconsin sheriff may temporarily suspend an order for Huber release. In addition, a Wisconsin sheriff may ask a circuit court to withdraw an order for Huber release. But neither of these circumstances were present here. Therefore the Sheriff had a “positive and plain” duty to grant Huber release to Coogan. Accordingly, we reverse the circuit court’s decision to deny mandamus relief and remand with directions that the circuit court enter an order granting mandamus relief.

Recommended for Publication

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Paul S. Jones

Case No.: 2019AP380-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Warrantless Search – Suppression of Evidence

Paul Jones, by counsel, appeals his judgment of conviction and the order denying his motion to suppress evidence obtained in a warrantless police search of a vehicle. The sole issue on appeal is whether the circuit court erred in denying Jones’s suppression motion. We affirm the judgment of the circuit court.

Full Text

WI Court of Appeals – District IV

Case Name: Eleanor Curtiss, et al., v. Bruce Ellery, et al.,  

Case No.: 2019AP1088

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

Focus: Summary Judgment – Issue of Material Fact

Eleanor Curtiss appeals a circuit court order that granted summary judgment to Bruce Ellery and dismissed Curtiss’s negligence action for injuries Curtiss suffered on a bus driven by Ellery, and an order denying reconsideration. Curtiss contends that there are disputed issues of material fact as to whether Ellery was causally negligent, precluding summary judgment. We agree that there are disputed issues of material fact as to causation and that summary judgment was improperly granted. Accordingly, we reverse and remand for further proceedings.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Diane R. Caspari

Case No.: 2020 WI 49

Focus: Attorney Disciplinary Hearing

We review a stipulation pursuant to Supreme Court Rule (SCR) 22.12 between the Office of Lawyer Regulation (OLR) and Attorney Diane R. Caspari. The stipulation states that Attorney Caspari committed three counts of misconduct arising out of her failure to make payments to Clinical Psychology Associates, which conducted evaluations into criminal cases which had been assigned to Attorney Caspari by the Office of the State Public Defender (SPD). The stipulation requests that this court impose a 90-day suspension of Attorney Caspari’s license to practice law in Wisconsin and that she be ordered to pay restitution.

Upon careful review of the matter, we accept the stipulation, impose the requested discipline and order restitution. Because the matter has been resolved by means of a stipulation, without the need for the appointment of a referee, we impose no costs on Attorney Caspari.

License Suspended

Concur:

Dissent:

Full Text

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Robert C. Menard

Case No.: 2020 WI 50

Focus: Attorney Disciplinary Hearing

Attorney Robert C. Menard has appealed a referee’s recommendation that his license to practice law in Wisconsin be revoked; that he be ordered to make restitution to a number of clients; and that he be ordered to pay the full costs of this proceeding, which are $18,191.42 as of October 25, 2019. Attorney Menard stipulated to 30 counts of misconduct and the only disputed issue left for the referee to decide was the appropriate sanction. Similarly, the only issue raised on appeal is what is reasonable and appropriate discipline for the misconduct in this case. We agree with the referee that revocation is the appropriate sanction.

License revoked

Concur:

Dissent:

Full Text

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Peter J. Kovac

Case No.: 2020 WI 47

Focus: Attorney Disciplinary Hearing

Attorney Peter J. Kovac has appealed Referee Richard M. Esenberg’s recommendation that his license to practice law in Wisconsin be suspended for five months for seven counts of professional misconduct. The referee also recommended that Attorney Kovac pay the full costs of this proceeding, which are $7,401.87 as of December 11, 2019.

Upon careful review of the matter, we agree with the referee that Attorney Kovac’s professional misconduct warrants a five-month suspension of his license to practice law in Wisconsin. We also agree that Attorney Kovac should bear the full costs of this proceeding. The OLR did not request restitution, and no restitution is ordered.

License suspended

Concur:

Dissent:

Full Text