Weekly Case Digests – September 20, 2021 – September 24, 2021

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Nadia Bohdanivna Chuchman v. Merrick B. Garland

Case No.: 20-3205

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

Focus: Immigration – Asylum

Nadiia Chuchman, a citizen of Ukraine, appeals the denial of her application for asylum based on political opinion. She maintains that the Ukrainian government persecuted her nearly a decade ago for her political activity in opposing the former president. She primarily argues that the Immigration Judge and the Board of Immigration Appeals erred in finding that she had not experienced past persecution after government actors beat her severely, detained her for a day, and pressured her university’s dean to expel her if she remained politically active. She also maintains that they ignored evidence of ongoing corruption in Ukraine when finding that her political party’s rise to power meant she was unlikely to be persecuted in the future. Because substantial evidence supports the Board’s conclusion that Chuchman’s experience in Ukraine did not rise to the level of persecution, and because she failed to present compelling evidence that the new Ukrainian government would persecute her if she returned, we deny the petition for review.

Petition denied

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Coscia

Case No.: 19-2010; 20-1032

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

Focus: Abuse of Discretion – Newly Discovered Evidence

A jury convicted Michael Coscia of six counts of commodities fraud, in violation of 18 U.S.C. § 1348, and six counts of spoofing, in violation of 7 U.S.C. §§ 6c(a)(5)(C) and 13(a)(2). On direct appeal, we affirmed his conviction. We now have before us the appeals of two proceedings that Mr. Coscia initiated after we resolved his direct appeal. The first is a motion for a new trial on the basis of new evidence in which he alleges (1) that data discovered after trial establishes that there were errors in the data presented to the jury and (2) that subsequent indictments against other traders for similar spoofing activities undercut the Government’s characterization of Mr. Coscia as “unique” or a trading “outlier.” The second proceeding is a motion to vacate his conviction pursuant to 28 U.S.C. § 2255, in which Mr. Coscia claims that his trial counsel, Sullivan & Cromwell LLP, provided ineffective assistance of counsel. Specifically, he alleges that Sullivan & Cromwell had an undisclosed conflict of interest with several of the Government’s witnesses and that this conflict adversely affected counsel’s performance. He also alleges that, even if there was no conflict of interest, his trial counsel nevertheless provided constitutionally deficient representation.

The district court denied both motions, and Mr. Coscia now appeals. He submits that the district court abused its discretion when it denied his new trial motion. In his view, the newly discovered evidence demonstrated that key evidence relied on by the Government to establish his intent to spoof was false and inaccurate. As for his habeas motion, he contends that the district court correctly found that counsel had a conflict of interest, but incorrectly concluded that there was no adverse effect on counsel’s performance. He further submits that the district court erred in rejecting his argument that, even in the absence of a conflict of interest, his defense counsel’s performance was constitutionally deficient. In the alternative, Mr. Coscia requests further discovery and an evidentiary hearing on his ineffective assistance of counsel claims.

We now affirm the district court’s judgments on both the new trial and § 2255 motions. We conclude that the district court did not abuse its discretion in denying Mr. Coscia’s motion for a new trial on newly discovered evidence grounds. We further conclude that the district court correctly determined that Mr. Coscia failed to demonstrate an adverse effect or prejudice in either of his ineffective assistance of counsel claims.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Damon Goodloe v. Christine Brannon

Case No.: 18-2908

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

Focus: Habeas Relief – 6^th Amendment Violation – Confrontation Clause

An Illinois jury convicted Damon Goodloe of first-degree murder in the death of Pierre Jones. After losing his direct appeal and all post-conviction proceedings available in state court, Goodloe petitioned for a writ of habeas corpus in federal court under 28 U.S.C. § 2254. After the district court denied relief on all of his claims, this court granted a certificate of appealability on his claim that evidence was admitted at his trial in violation of the Confrontation Clause. We later expanded that certificate to include his assertion that his trial counsel provided ineffective assistance. We now affirm the district court’s denial of habeas relief.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Oscar Calan-Montiel

Case No.: 20-2082

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

Focus: Immigration – Removal Order

Oscar Calan-Montiel, a citizen of Mexico, entered the United States without color of legal right to be here. He was caught in 2010 and ordered removed. Federal authorities returned him to Mexico in 2012. He came back, again evading inspection at the border, and was caught again in 2019. This time he was prosecuted under 8 U.S.C. §1326, a statute that applies to aliens who reenter the United States, without permission, after a removal order. He pleaded guilty and was sentenced to about 16 months in prison. The plea reserved the right to argue on appeal that his first removal was unlawful and that the criminal prosecution should have been dismissed.

According to Calan-Montiel, the agency never furnished him with a date for his removal hearing. We know that he did not attend and was ordered removed in his absence. That might be because a notice was not sent, because Calan-Montiel had not kept his address up to date, because a correctly addressed notice miscarried in the mails, or because Calan-Montiel decided that he lacked a defense to removal and so did not think attendance worthwhile. We need not determine which of these possibilities occurred, for Calan-Montiel does not deny that he had actual knowledge of the removal order. He could have asked the agency to reopen the proceedings, see 8 U.S.C. §1229a(b)(5)(C)(ii), but did not. He could have made that request even after being returned to Mexico. He could have sought judicial review before or after his removal. But he did not do that either. Instead he returned by stealth. That strategy makes it impossible to satisfy §1326(d), even if the agency erred in failing to send a proper notice of the hearing’s date. See United States v. Hernandez-Perdomo, 948 F.3d 807 (7th Cir. 2020).

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Sally Gaetjens v. City of Loves Park, et al.,

Case No.: 20-1295

Officials: KANNE, SCUDDER, and KIRSCH, Circuit Judges.

Focus: 4^th Amendment Violation – Unlawful Seizure

Plaintiff Sally Gaetjens sued various local government officials for entering and condemning her home and confiscating her thirty‐seven cats, all without a warrant. She’s right that the Fourth Amendment would usually prohibit such conduct. But emergencies breed exceptions—and this case is littered with emergencies.

Namely, Gaetjens went missing in action, and Defendants had reason to believe that she was experiencing a medical emergency. Plus, when Defendants attempted to check her home, they deemed it so noxious that it posed a public‐safety risk. Given these exigencies, the Fourth Amendment did not require Defendants to wait for judicial approval before acting. We thus affirm the decision of the district court granting summary judgment to Defendants.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Mike Butler v. Kilolo Kijakazi

Case No.: 20-3187

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

Focus: ALJ Review – Disability Benefits

Mike Butler sought disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401–433, and that claim for benefits was denied by the Administrative Law Judge (ALJ) following a hearing. The Appeals Council declined to review the denial, and therefore the decision of the ALJ is the final decision for purposes of our review. Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2010); 20 C.F.R. §§ 404.955, 404.981. Butler now challenges the ALJ’s determination that he was capable of doing light work with some restrictions, and that a sufficient number of such jobs existed that he could perform. The relevant time period at issue is from the alleged date of disability, November 4, 2015, through the ALJ’s decision on April 19, 2018.

We review de novo the district court’s affirmance of the ALJ’s decision and review directly the decision of the ALJ. Id. The ALJ’s decision will be affirmed if it was supported by substantial evidence, which is “’such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id., quoting Yurt v. Colvin, 758 F.3d 850, 856 (7th Cir. 2014). “An ALJ need not specifically address every piece of evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.” Id., quoting O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010).

On appeal, Butler argues that the ALJ failed to properly apply the grids in denying benefits. He alleges that in determining that Butler could perform three occupations with 136,000 jobs, the ALJ failed to consider that Butler had the additional adverse vocational factor of being a person closely approaching advanced age, in that he was between the ages of 50–54. But that argument is belied by the record. The ALJ quite clearly recognized that Butler was in the category of persons closely approaching advanced age, and in eliciting the testimony from the VE as to jobs that Butler could perform, the ALJ incorporated Butler’s age as one of the characteristics to be considered in making that determination, asking the VE “whether jobs exist in the national economy for an individual with the claimant’s age, education, work experience, and residual functional capacity.” ALJ Decision at 11, App. 25.

Accordingly, we affirm the district court’s judgment and the ALJ’s decision.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Jyshawn Jackson

Case No.: 20-2408

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

Focus: Jury Instructions

Jyshawn Jackson, together with Marnetta Walker, sold drugs on six occasions to a confidential source (“CS”) during a two-month span in 2019. This appeal concerns only the last sale, for which Jackson was indicted on one count of distributing 28 grams or more of crack cocaine. That sale occurred in two steps, but that was not how the sale was originally structured—Jackson, through Walker, had agreed to sell 35 grams of crack cocaine to the CS for $1,800.

But when the CS arrived with Walker to the location for the buy, Jackson handed over only 24.92 grams of crack cocaine. After some handwringing about the shorted amount, the CS paid Jackson $1,500, and Jackson said that he would retrieve and provide the CS the full amount discussed previously. Jackson then traveled to a nearby town to get more crack cocaine before again meeting the CS and Walker at a location one mile from the original meet-up. Once there, Jackson exchanged 6.28 grams of crack cocaine for the remaining $300. At trial, a jury found Jackson guilty of distributing more than 28 grams of crack cocaine.

Jackson argues that the district court erred when it denied his motion for acquittal under Federal Rule of Criminal Procedure 29 because the government’s evidence showed that the sale involved two transactions, not one, each amounting to less than 28 grams of crack cocaine. He also asserts that the district court should have given a lesser-included-offense instruction to allow the jury to find Jackson distributed less than 28 grams of crack cocaine. We disagree and affirm Jackson’s conviction.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Travis Tuggle

Case No.: 20-2352

Officials: FLAUM, HAMILTON, and BRENNAN, Circuit Judges.

Focus: Statutory Interpretation – 4^th Amendment – Search and Seizure

Tuggle’s case presents an issue of first impression for this Court: whether the warrantless use of pole cameras to observe a home on either a short- or long-term basis amounts to a “search” under the Fourth Amendment. The answer—and even how to reach it—is the subject of disagreement among our sister circuits and counterparts in state courts. Their divergent answers reflect the complexity and uncertainty of the prolonged use of this technology and others like it. Nevertheless, most federal courts of appeals that have weighed in on the issue have concluded that pole camera surveillance does not constitute a Fourth Amendment search.

Ultimately, bound by Supreme Court precedent and without other statutory or jurisprudential means to cabin the government’s surveillance techniques presented here, we hold that the extensive pole camera surveillance in this case did not constitute a search under the current understanding of the Fourth Amendment. In short, the government’s use of a technology in public use, while occupying a place it was lawfully entitled to be, to observe plainly visible happenings, did not run afoul of the Fourth Amendment. Therefore, we affirm the district court’s denial of Tuggle’s motion to suppress.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Chris Logan v. City of Chicago, et al.,

Case No.: 20-1669

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

Focus: Title VII Violation – Retaliation Claim

After plaintiff Chris Logan was denied a promotion, he sued his employer the City of Chicago (the “City”) and several of the City’s employees. He alleged that the City engaged in unlawful discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e. He further alleged that all defendants violated the Illinois Whistleblower Act (the “Act”), 740 Ill. Comp. Stat. § 174/1. On appeal, Logan challenges the district court’s grant of summary judgment for the defendants on all claims. We affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: David Bishop, et al., v. Air Line Pilots Association International,

Case No.: 21-1034

Officials: SYKES, Chief Judge, and RIPPLE and HAMILTON, Circuit Judges.

Focus: Railway Labor Act Violation – Duty of Fair Representation

The plaintiffs, pilot instructors for United Airlines, brought this class action against the Air Line Pilots Association, International (“ALPA”), their recognized agent for the purpose of collective bargaining. In their complaint, they alleged that ALPA had violated its duty of fair representation under the Railway Labor Act, 45 U.S.C. § 151 et seq., by adopting a retroactive pay provision that discriminated against pilot instructors. The district court initially dismissed the complaint; however, on appeal, we reversed the district court’s judgment and allowed the action to go forward. See Bishop v. Air Line Pilots Ass’n, Int’l, 900 F.3d 388 (7th Cir. 2018).

Following discovery, ALPA moved for summary judgment. It maintained that the plaintiffs had not come forward with evidence that its sole motive in adopting the retroactive pay provision was to discriminate against the pilot instructors. The district court agreed and granted ALPA’s motion.

We now affirm. To establish a violation of the duty of fair representation under the circumstances presented here, the plaintiffs were required to come forward with evidence from which a jury could conclude that ALPA’s sole motive in adopting the retroactive pay provision was an illicit one. The plaintiffs did not meet that burden; consequently, the district court correctly entered summary judgment on behalf of ALPA.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Unensaikhan Chuluunbat, et al., v. Experian Information Solutions, Inc., et al.,

Case No.: 20-2373; 20-2392; 20-2775; 20-2776; 20-3000; 20-3351; 20-3368

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

Focus: FCRA – Failure to State Claim

In these consolidated cases, plaintiffs owe consumer debts they claim are not owned by the creditors listed on their credit reports. They approached the consumer reporting agencies—defendants here—and requested an investigation of their claims. The consumer reporting agencies contacted the purported creditors for verification that they owned the debts, which the creditors confirmed. Although informed of these confirmations, plaintiffs did not believe that the consumer reporting agencies investigated the claims as thoroughly as 15 U.S.C. § 1681i of the Fair Credit Reporting Act (FCRA) requires, so they sued. But in each case the district court either dismissed their claims or granted judgment on the pleadings to the creditors.

We are tasked in this FCRA context with discerning the sometimes-murky boundary between “law” and “fact.” We hold that plaintiffs’ allegations that the creditors did not own their debts are not factual inaccuracies that the consumer reporting agencies are statutorily required to guard against and reinvestigate, but primarily legal issues outside their competency. So we affirm the district court’s decision in each case.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Alexander Bebris

Case No.: 20-3291

Officials: SYKES, Chief Judge, and SCUDDER and KIRSCH, Circuit Judges.

Focus: Abuse of Discretion – Suppression of Evidence

Alexander Bebris sent child pornography over Facebook’s private user-to-user messaging system, Facebook Messenger, in 2018. Bebris’s conduct was initially discovered and reported by Facebook, which licenses a “hashing” or (in overly simplified layman’s terms) image-recognition technology developed by Microsoft called PhotoDNA. PhotoDNA provides the capability to scan images uploaded onto a company’s platform and compares the “hash” (or essence) of a photo with a database of known images of child pornography. Thus, through that technology, three of Bebris’s messages were flagged by PhotoDNA. Facebook employees reviewed the flagged images and reported them to the CyberTipline of the National Center for Missing and Exploited Children (“NCMEC”), as required by 18 U.S.C. § 2258A(a). NCMEC then reported the images to Wisconsin law enforcement officials, who eventually obtained a warrant and searched Bebris’s residence, where they found a computer containing numerous child pornography files. Bebris was charged federally with possessing and distributing child pornography.

Bebris argued before the district court that the evidence against him should be suppressed, specifically contending that Facebook took on the role of a government agent (subject to Fourth Amendment requirements) by monitoring its platform for child pornography and reporting that content. On appeal, Bebris reprises this argument but primarily contends that he was deprived of the opportunity to prove that Facebook acted as a government agent because the district court denied his Federal Rule of Criminal Procedure 17(a) subpoena seeking pre-trial testimony from a Facebook employee with knowledge of Facebook’s use of PhotoDNA. The district court, however, properly exercised its discretion in quashing that subpoena, as it sought cumulative testimony to material already in the record. The record included a written declaration from Microsoft and Facebook and live testimony from an executive at NCMEC, which administers the federal reporting system. On the merits, the district court did not err in its conclusion that Facebook did not act as a government agent in this case. Thus, we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Ross Thacker

Case No.: 20-2943

Officials: SYKES, Chief Judge, and SCUDDER and KIRSCH, Circuit Judges.

Focus: First Step Act – Compassionate Release

Ross Thacker is serving a 33-year federal sentence for a series of armed robberies he committed in 2002. The sentence included so-called stacked penalties— imposed to run consecutively to one another—for two convictions under 18 U.S.C. § 924(c) for using and carrying a firearm during two of the robberies. The first § 924(c) conviction resulted in a mandatory minimum sentence of 7 years, and the second added a mandatory consecutive sentence of at least 25 years. In September 2020 Thacker invoked 18 U.S.C. § 3582(c)(1)(A) and sought to reduce his sentence based not only on the health risks of exposure to COVID-19 within prison, but also on the amendment Congress enacted in the First Step Act of 2018 to limit the circumstances in which multiple sentences for violations of § 924(c) can be stacked. The district court denied Thacker’s motion, concluding in part that the discretion in § 3582(c)(1)(A) to reduce a sentence upon finding “extraordinary and compelling reasons” does not include the authority to reduce § 924(c) sentences lawfully imposed before the effective date of the First Step Act’s anti-stacking amendment.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Jimmy L. Powell v. Larry Fuchs

Case No.: 19-1818

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

Focus: Jury Instructions

Jimmy Powell dealt cocaine. After a drug deal went bad and his customer ended up with life‐ threatening injuries, he was charged in Wisconsin state court with various crimes, including first‐degree reckless injury. A jury found Powell guilty of that crime but acquitted him of two more serious charges. He appealed, contending that a supplemental jury instruction about the reckless injury charge misstated the law and that his counsel was ineffective for agreeing to it. The state appellate court rejected his arguments, as did the district court when Powell raised them in a petition for a writ of habeas corpus under 28 U.S.C. § 2254.

In this appeal, Powell maintains his claim that his trial counsel was ineffective for approving the supplemental jury instruction, and he argues that the state appellate court unreasonably applied federal law in concluding otherwise. But he offers no clear and convincing evidence to rebut the state appellate court’s conclusion that the instruction was an accurate response to a question from the jury. The record also shows that Powell’s trial counsel had reasonable and strategic reasons for not objecting, so we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Peggy Jo Smith, et al., v. Professional Transportation, Inc., et al.,

Case No.: 20-2046

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

Focus: Fair Labor Standards Act – Individual Claims – Time-barred

Between November 2011 and August 2013, Peggy Jo Smith worked for Professional Transportation Inc. (PTI), a company that transports railroad crews to and from their places of work. Believing that her position was misclassified for purposes of the Fair Labor Standards Act (“the Act”) and that she was not receiving proper overtime wages, she filed this action “individually and on behalf of similarly situated individuals” on December 26, 2013. The Act permits both individual actions and collective proceedings. See 29 U.S.C. § 216(b). Unlike the better-known class action under Federal Rule of Civil Procedure 23(b)(3), however, which includes everyone in the class who does not opt out, the FLSA collective action requires group members affirmatively to opt into the collective action in order to participate.

At first, it seemed that Smith’s effort to serve as a named representative of a collective action under the Act was proceeding well. Her initial filing was well within the two years that the Act provides for the commencement of litigation. See 29 U.S.C. § 255(a). (Indeed, the Act has a three-year limitation period for allegations of willful conduct. Id.) The parties filed a joint case management plan on March 25, 2014, three months after the case was filed, and the district court promptly approved it. Docs. 15, 16. Part IV of that plan addressed “class certification matters.” And the district court’s docket sheet shows numerous putative group members consenting to opt into the litigation.

The case went off the rails, however, when PTI pointed out that Smith herself had not filed anything in addition to her complaint indicating that she herself wished to participate in the group action. Relying on our decision in Harkins v. Riverboat Services, Inc., 385 F.3d 1099 (7th Cir. 2004), the district court deemed this a fatal flaw for the collective action. It held that Smith’s group action could not “commence” until such a consent was filed. 29 U.S.C. § 256. Moreover, by the time the court reached this conclusion, both the two-year and the three-year statutes of limitations had run. The court then concluded that Smith’s complaint also failed to allege timely individual claims, and on that basis it dismissed the case in its entirety.

Aside from some stray references to the underlying putative collective action, Smith’s appeal contests only the district court’s refusal to allow her individual action to move ahead. We thus do not have before us the difficult question whether every member of a collective action, including the named plaintiff(s), must file a separate document entitled a Consent, or if it is enough for the named plaintiff(s) to indicate in the complaint that they affirmatively wish to proceed in that capacity. We conclude, however, that the court erred by refusing to allow Smith to proceed on her individual claims, and so we vacate that part of its judgment and remand for further proceedings.

Vacated in part. Remanded in part.

Full Text

7^th Circuit Court of Appeals

Case Name: Alonso Corral v. Brian Foster

Case No.: 20-1665

Officials: RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.

Focus: Habeas Relief – Ineffective Assistance of Counsel

A jury convicted Alonso Corral of attempted homicide after two men who knew him swore that he shot at them. At trial, Corral presented a mistaken-identity defense, urging that the real shooter was a 15-year-old named “Kenny.” Because Corral’s trial counsel believed that Corral and Kenny did not look alike, he did not present evidence of Kenny’s appearance. Corral argues that this decision was constitutionally deficient. After failing to persuade state courts of this view, Corral petitioned for federal habeas relief under 28 U.S.C. § 2254, which the district court denied. Because the last state court to adjudicate the merits of Corral’s ineffectiveness claim considered his claim in light of the relevant circumstances and reasonably concluded that his counsel made a sound strategic decision not to present the appearance evidence, we affirm under the doubly deferential standard that governs our review.

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Kimberly Winter v. James Winter

Case No.: 2019AP1374; 2020AP702

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

Focus: Estate – Special Administration

In these consolidated appeals, Kimberly Winter appeals an order dismissing her civil case against James Winter, and she also appeals an order denying her petitions for formal and special administration of the Estate of Augustus Pocius Winter (“the Estate”). In both cases, Kimberly sought to contest the validity of a quitclaim deed that purportedly transferred real property in Oneida County from Kimberly’s father, Augustus Pocius Winter, to Kimberly’s brother, James Winter. In Kimberly’s civil case, the circuit court concluded that it lacked subject matter jurisdiction over Kimberly’s claims because a Wisconsin probate court would have exclusive jurisdiction over those claims. Kimberly then filed petitions for formal and special administration of the Estate, and the court denied her petitions, concluding that previous litigation in California barred Kimberly’s claims under the doctrine of issue preclusion.

On appeal, Kimberly argues, among other things, that the circuit court erred when it failed to grant her petition for special administration of the Estate and that the court prematurely considered the matter of issue preclusion before appointing a special administrator. We agree and reverse the court’s decision to deny Kimberly’s petition for special administration, and remand for the court to appoint a special administrator. Because the appointment of a special administrator will invariably allow Kimberly to contest the validity of the quitclaim deed, Kimberly’s appeal in her civil case is moot, and we dismiss that appeal.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jasmine J. Lanier

Case No.: 2019AP2344-CR

Officials: Dugan, Graham and White, JJ.

Focus: Sufficiency of Evidence

Jasmine J. Lanier appeals her judgment of conviction for felony intimidation of a witness by force or violence, substantial battery, and battery or threat to a witness, all as a party to a crime, and the trial court’s order denying her postconviction motion without a hearing. On appeal, Lanier argues that the evidence was insufficient to convict her of felony intimidation of a witness and battery or threat to a witness. She also argues that the prosecutor failed to disclose an informant agreement that the Milwaukee Police Department (MPD) had with the victim, that the trial court erred in granting the State’s motion to join her trial with the trials of her father and her cousin and erred by denying her motion for severance, and that her trial counsel was ineffective.

We conclude that there is sufficient evidence to support Lanier’s convictions for felony intimidation of a witness and battery or threat to a witness. Additionally, we conclude that, even assuming without deciding that the jury instructions for felony intimidation of a witness were erroneous, any error was harmless, and that the jury instruction for battery or threat to a witness did not result in a conviction for an uncharged offense or improperly modify the amended information. We further conclude that Lanier is not entitled to disclosure of any informant agreement and that she conceded her arguments that the trial court erred in granting the State’s motion for joinder and denying Lanier’s motion for severance, and her argument that trial counsel provided ineffective assistance of counsel because she failed to refute the State’s arguments regarding these issues in her reply brief. Accordingly, we affirm.

Full Text

WI Court of Appeals – District III

Case Name: Outagamie County Department v. M.D.H.,

Case No.: 2020AP86

Officials: HRUZ, J.

Focus: Involuntary Commitment – Sufficiency of Evidence

Matthew appeals from an order of commitment and an order for involuntary medication and treatment entered pursuant to WIS. STAT. § 51.20. Matthew challenges the sufficiency of the evidence establishing that he was dangerous to himself or others under § 51.20(1)(a)2. We affirm

Full Text

WI Court of Appeals – District III

Case Name: Johnathon Will v. Christopher Schlosser, et al.,

Case No.: 2020AP407

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

Focus: Summary Judgment – Issue of Material Fact

Johnathon Will appeals a summary judgment granted in favor of Christopher Schlosser and his automobile liability insurer, Progressive Universal Insurance Company (hereinafter “Progressive”), which dismissed Will’s personal injury claim. Will cashed a $950 settlement check from Progressive sent with an attached document denominated “ADVICE FOR PAYMENT,” which read, “Full and Final Settlement of all Bodily Injury Claims with Open Meds.” The circuit court concluded that Will’s cashing of the check constituted an accord and satisfaction between the parties, thereby limiting the defendants’ further liability and warranting summary judgment in their favor.

On appeal, Will argues the circuit court erred in granting summary judgment because there were genuine issues of material fact as to whether Will had reasonable notice that the check he cashed was offered in full and final satisfaction of his claim.We agree and conclude that there are material issues of fact as to whether Will received such reasonable notice, thereby precluding summary judgment. We therefore reverse the judgment and remand this matter for further proceedings.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Nicholas John Hanson

Case No.: 2020AP583-CR

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

Focus: Due Process Violation – Suppression of Evidence

Nicholas John Hanson appeals the judgment of conviction, following a jury trial, of one count of armed robbery with the threat of force. Hanson contends that the trial court erred in denying his motion to suppress eyewitness identification evidence. Hanson argues that Gronwall’s presentation of the single photograph violated both the Wisconsin Department of Justice’s “Model Policy and Procedure for Eyewitness Identification,” as well as his due process rights because: (1) it suggested to S.L. that Hanson was indeed the perpetrator; (2) the photograph was a mugshot of Hanson, suggesting that he was a criminal and likely to have committed the crime; and (3) it may have swayed S.L. into identifying Hanson following S.L.’s conversation with D.C. Upon review, we affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Malcolm A. Butler

Case No.: 2019AP637

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

Focus: Evidentiary Hearing

Malcolm Butler appeals pro se from circuit court orders denying his WIS. STAT. § 974.06 (2019-20)1 motion. Because the record conclusively demonstrates that Butler was not entitled to relief, we affirm the circuit court’s orders denying the motion without an evidentiary hearing.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Cristian M. Loga-Negru

Case No.: 2019AP1023-CR

Officials: Neubauer, C.J., Gundrum and Davis, JJ.

Focus: Brady Violation

Cristian M. Loga-Negru appeals pro se from a judgment of conviction and orders denying his postconviction motions. He raises claims relating to competency, the right to counsel, an alleged Brady violation, plea withdrawal, his trial counsel’s performance, and alleged prosecutorial misconduct.  We affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Cesar Rivera

Case No.: 2019AP1880-CR

Officials: Neubauer, C.J., Gundrum and Davis, JJ.

Focus: Postconviction Relief – Plea Withdrawal

Cesar Rivera appeals from a judgment convicting him of a sex offender registry violation and from an order denying his postconviction motion seeking plea withdrawal and alleging ineffective assistance of trial counsel. We reject Rivera’s challenges to his no contest plea and affirm.

Full Text

WI Court of Appeals – District II

Case Name: Scott R. Schmidt v. Sheila Reiff, et al.,

Case No.: 2019AP1919; 2019AP2215

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

Focus: Failure to State Claim

In these consolidated appeals, Scott Schmidt appeals pro se from orders dismissing his complaint for failure to state a claim. We agree that Schmidt’s complaint does not state a claim, and we affirm.

Full Text

WI Court of Appeals – District II

Case Name: Louis Pagoudis , et al., v. Marcus Keidl, et al.,

Case No.: 2020AP225

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

Focus: Standing to Sue

This case involves a run-of-the-mill fact pattern—buyer purchases house, discovers defects, and sues seller—complicated by a thorny standing issue stemming from the buyer’s having purchased and owned the property as three related but separate legal entities. The question now is which, if any, party has standing to sue the original seller, where one party contracted to purchase the property and the second initially took title before conveying title to the third.

The circuit court determined that none of these parties had standing—meaning that these transactions effectively destroyed whatever claims might otherwise exist against the seller. We conclude otherwise. Although the issue is clouded by inartful pleadings and a confusing series of procedural machinations, we conclude that at least one of these parties has standing to pursue these claims. The question of which party can pursue which claims will depend, in part, on facts further developed under the legal frameworks set forth herein. Accordingly, we reverse and remand for further proceedings.

Recommended for Publication

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Lamardus Dewayne Ford

Case No.: 2020AP829-CR

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Sufficiency of Evidence

Lamardus D. Ford appeals a judgment of conviction and an order denying Ford’s postconviction motion. Ford contends that: (1) there was insufficient evidence to support his conviction for first-degree recklessly endangering safety; and (2) his constitutional right to confrontation was violated when the circuit court allowed the State to introduce out-of-court statements at trial under the forfeiture by wrongdoing doctrine. For the reasons set forth in this opinion, we disagree. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jimmy D. McDaniel

Case No.: 2020AP950-CR

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

Focus: Ineffective Assistance of Counsel

Jimmy McDaniel was convicted, after a jury trial in the Crawford County Circuit Court, of first-degree reckless homicide and strangulation of Linda Kline. McDaniel appeals the circuit court’s rulings concerning: an evidentiary objection at trial; the circuit court’s denial of his request for postconviction discovery; and the circuit court’s denial of his postconviction motion for a new trial based on the purported ineffective assistance of his trial counsel. We affirm the rulings of the circuit court.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Aaron Matthew Oleston

Case No.: 2020AP952-CR

Officials: GRAHAM, J.

Focus: 1^st Amendment Violation

Aaron Matthew Oleston appeals a judgment of conviction for five counts of disorderly conduct. He argues that the conduct for which he was convicted is protected by the First Amendment of the United States Constitution. I conclude that the conduct at issue in counts one, two, and three cannot be criminally prosecuted because it is constitutionally protected speech. However, I conclude that the First Amendment does not protect the conduct at issue in counts four and five. Accordingly, I affirm in part and reverse in part.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Percy L. Oliver

Case No.: 2020AP1004-CR

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Warrantless Search – Suppression of Evidence

Percy L. Oliver appeals a judgment of conviction for second-degree reckless homicide. Shortly after his arrest, police asked Oliver to provide a sample of his DNA and Oliver agreed to do so. On appeal, he argues that the circuit court should have suppressed the evidence obtained in this warrantless search because his consent was not voluntary. Based on the totality of the circumstances as well as the circuit court’s findings of fact and reasonable inferences, we conclude that Oliver voluntarily consented to the search. Therefore, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Alexandrea C.E. Throndson

Case No.: 2020AP1081-CR

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

Focus: Sentencing Guidelines – Resentencing

Alexandrea C.E. Throndson appeals a judgment of conviction for maintaining a drug trafficking place and bail jumping. Throndson argues that she is entitled to resentencing because the circuit court relied on inaccurate information and exhibited objective bias during sentencing. We reject both arguments and affirm.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: Wisconsin Judicial Commission v. The Honorable Scott C. Woldt

Case No.: 2021 WI 73

Focus: Attorney Disciplinary Proceedings

We review, pursuant to Wis. Stat. § 757.91 (2019-20), a Judicial Conduct Panel’s (the Panel) findings of fact, conclusions of law, and recommendation for discipline for the Honorable Scott C. Woldt, a judge for the Winnebago County circuit court. In a Joint Stipulation as to Findings of Fact and Conclusions of Law (the Joint Stipulation), Judge Woldt admitted to all of the facts in the Wisconsin Judicial Commission’s (the Commission) complaint and agreed that, based on those facts, he had violated the Code of Judicial Conduct (the Code). Based on the Joint Stipulation, the Panel found that the facts alleged in the complaint were established as true and determined that those facts supported the legal conclusion that Judge Woldt had willfully violated several rules of the Code, which constituted judicial misconduct under Wis. Stat. § 757.81(4)(a). After receiving memoranda from the parties regarding the appropriate level of discipline, the Panel recommended that this court suspend Judge Woldt without pay for a period of not less than seven nor more than 21 days.

After carefully reviewing this matter, we adopt the Panel’s findings of fact, and we agree that those facts demonstrate that Judge Woldt committed judicial misconduct. We conclude that as discipline for that misconduct, Judge Woldt should be suspended without pay for a period of seven days, commencing August 2, 2021.

Suspended from office

Concur: REBECCA GRASSL BRADLEY, J., concurs in part and dissents in part, in which ROGGENSACK, J., joined.

Dissent: REBECCA GRASSL BRADLEY, J., concurs in part and dissents in part, in which ROGGENSACK, J., joined.

Full Text