Weekly Case Digests – December 6, 2021 – December 10, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. David McClain

Case No.: 21-2089; 21-2090

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

Focus: Court Error – Sentence Modification – Criminal Procedure Rule 36

The district court modified David McClain’s two federal prison sentences under Rule 36 of the Federal Rules of Criminal Procedure, and McClain appeals. He contends that the changes—which added 18 months of prison time and required him to re-enter federal prison after he had been released—were not merely clerical. As a result, he argues, they could have been made only under Federal Rule of Criminal Procedure 35. But that avenue for modification was unavailable because the fourteen-day period for altering a sentence had long passed. The government argues that because of clerical errors, the written judgments did not reflect what was orally pronounced at a 2013 resentencing hearing and therefore required a mere clerical “correction” pursuant to Federal Rule of Criminal Procedure 36.

McClain is correct that the changes to his sentences were not merely clerical, and so the district court erred by “correcting” the sentences under Rule 36. We agree and vacate both amended judgments. We have already ordered McClain’s release and now explain our reasoning in greater detail.

Vacated and remanded with instructions

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7^th Circuit Court of Appeals

Case Name: Kenneth Heiting, et al., v. United States of America

Case No.: 20-1324

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

Focus: IRS – Claim of Right – Tax Computation

Plaintiffs Kenneth and Ardyce Heiting brought this action seeking an income tax refund of the taxes they had paid on an unauthorized sale of stock by a trust. The IRS denied the relief, and the Heitings filed their complaint seeking the refund. The district court granted the government’s motion to dismiss that complaint, and the Heitings appeal that decision.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jamar E. Plunkett v. Dan Sproul

Case No.: 20-2461

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

Focus: Plea & Sentencing – Collateral-attack Waivers

A grand jury indicted petitioner-appellant Jamar Plunkett on a charge of distributing crack cocaine. Plunkett pleaded guilty after the government established that his prior Illinois drug conviction subjected him to an enhanced statutory maximum sentence. Plunkett now appeals the district court’s decision to deny his § 2241 collateral attack on his sentence. Plunkett, however, waived his appellate rights, subject only to limited exceptions not presently applicable. Given this waiver, we now dismiss his appeal.

Dismissed

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7^th Circuit Court of Appeals

Case Name: Driftless Area Lan Conservancy, et al., v. Rebecca Valcq, et al.,

Case No.: 20-3325

Officials: SYKES, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

Focus: Sovereign Immunity

This appeal is another chapter in concurrent federal and state litigation challenging the construction of a $500 million, 100-mile power line in southwestern Wisconsin. In September 2019 the Public Service Commission of Wisconsin issued a permit authorizing two transmission companies and an electricity cooperative to build and operate the line. A few months later, two environmental groups filed lawsuits in both federal and state court seeking to invalidate the permit. As relevant here, the parallel suits allege that two of the three commissioners had disqualifying conflicts of interest and should have recused themselves. Both suits raise federal due-process claims; the state litigation also invokes state recusal law and contests the permit on other state-law grounds.

The case was last here at an early stage of the proceedings when the district judge rejected the permit holders’ motion to intervene. We reversed that decision and remanded with instructions to grant the intervention motion. Driftless Area Land Conservancy v. Huebsch (“Driftless I”), 969 F.3d 742 (7th Cir. 2020). Rulings on dismissal motions followed, and the judge significantly narrowed the scope of the case. But he denied the commissioners’ motion to dismiss based on sovereign immunity. The case returns to us on that issue.

The state and federal suits are clearly parallel for purposes of Colorado River. The environmental groups have raised materially identical due-process recusal claims in both state and federal court. Given the context—this case implicates serious state interests regarding the operation of Wisconsin administrative law and judicial review of state-agency proceedings—it’s appropriate to abstain from exercising federal jurisdiction to give the state courts an opportunity to decide the recusal issue. Litigating the same conflict-of-interest questions in both court systems is duplicative and wasteful; comity and the sound administration of judicial resources warrant abstention under Colorado River. We remand with instructions to stay the case pending resolution of the state proceedings.

Reversed and remanded with instructions

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7^th Circuit Court of Appeals

Case Name: United States of America v. Henry E. Wood

Case No.: 20-2974

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

Focus: Warrantless Search & Seizure – Suppression of Evidence

Henry Wood was arrested for violating his parole. Midway through the arrest, parole agents found methamphetamine hidden underneath the back cover of his cellphone. An investigator later extracted the data from his cellphone, revealing child pornography. Wood moved to suppress the data, arguing the Fourth Amendment requires a warrant before such a search. We disagree and affirm the district court’s denial of Wood’s motion to suppress.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Christian M. Lovies

Case No.: 20-2463

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

Focus: Sentencing Guidelines – Enhancements

Christian Lovies, wielding a gun, stole Emily Butler’s car as she was filling it with gasoline. Along with three other individuals, including a minor, Lovies kidnapped Butler and took her from Indianapolis to Cincinnati while threatening to kill her.

A federal grand jury indicted Lovies for kidnapping, carjacking, and brandishing a firearm during and in relation to a crime of violence. After a trial, a jury found Lovies guilty on all counts, and the district judge sentenced him to an imprisonment term within the applicable Sentencing Guidelines range. Lovies appeals his conviction, arguing the district court improperly denied a Batson challenge he raised during jury selection. He also contends the trial court erred in applying two sentencing enhancements: one for use of a minor to commit the offense, and one for his role in the offense.

In rejecting Lovies’s Batson challenge, the district court found the prosecutors credible and their explanation for exercising the challenged peremptory strike to be plausible. We owe great deference to the district court’s credibility determinations, and we cannot say its factual findings were clearly erroneous, so we affirm the denial of Lovies’s Batson challenge and his conviction. The district court’s factual findings were also adequate to support the application of the two sentencing enhancements, and any error with respect to the calculation of Lovies’s Guidelines range would be harmless. We therefore affirm Lovies’s sentence as well.

Affirmed

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7^th Circuit Court of Appeals

Case Name: William A. White v. United States of Department of Justice, et al.,

Case No.: 21-1229

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

Focus: Summary Judgment – Jurisdiction

William White sued several federal agencies under the Freedom of Information Act, 5 U.S.C. § 552, challenging the pace at which the agencies released responsive records and their alleged failure to reveal other records. The district court granted summary judgment for the agencies. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Devon Kamar Green

Case No.: 2020AP1529-CR

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

Focus: Evidentiary Hearing

Devon Kamar Green appeals a judgment of conviction and an order denying his postconviction motion. On appeal, Green argues that: (1) the trial court erred when it denied without an evidentiary hearing his motion to dismiss based on the State’s failure to preserve a surveillance video and (2) the postconviction court erred when it denied without an evidentiary hearing his ineffective assistance of counsel claim for failure to investigate two alibi witnesses. We reject Green’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: Lindsey Dostal v. Curtis Strand, et al.,

Case No.: 2020AP1943

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

Focus: Insurance Claim – Coverage

Lindsey Dostal (hereinafter, “Dostal”) appeals a circuit court’s grant of summary and declaratory judgment to State Farm Fire and Casualty Company (hereinafter, “State Farm”). The court concluded that State Farm did not provide coverage under Curtis Strand’s homeowner’s insurance policy (hereinafter, “the Policy”) for Dostal’s claims against Strand resulting from the death of Dostal and Strand’s infant daughter, Haeven Dostal (hereinafter, “Haeven”) while she was in Strand’s care. The court determined Haeven’s death was not the result of an occurrence, which is defined in the Policy as “an accident, including exposure to conditions” that results in bodily injury or property damage during the policy period. In particular, the court concluded that Strand’s criminal conviction of second-degree reckless homicide for causing Haeven’s death precluded Dostal’s claim that Strand’s actions were accidental because criminal recklessness requires more than accidental conduct. It reached this conclusion because, to find Strand guilty of that crime, the jury had to find that Strand created an unreasonable and substantial risk of great bodily harm to Haeven and that he acted with awareness of that risk.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. S.C.,

Case No.: 2021AP914-NM

Officials: Brash, C.J.

Focus: Termination of Parental Rights

S.C. appeals from circuit court orders terminating his parental rights to his two children, C.C. and A.M.C.2 S.C.’s appointed attorney, Brian C. Findley, has filed a no-merit report pursuant to WIS. STAT. RULES 809.107(5m) and 809.32. S.C. was served with a copy of the report and has filed a response. Appellate counsel then filed a supplemental no-merit report. This court has considered appellate counsel’s report, S.C.’s response, and the supplemental report, and has independently reviewed the record as required by Anders v. California, 386 U.S. 738 (1967). This court agrees with appellate counsel’s conclusion that further proceedings would lack arguable merit. Therefore, the orders terminating S.C.’s parental rights are summarily affirmed. See WIS. STAT. RULE 809.21.

WI Court of Appeals – District IV

Case Name: Allsop Venture Partners III, et al., v. Murphy Desmond SC, et al.,

Case No.: 2020AP806

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

Focus: Sufficiency of Evidence

Acting in consultation with tax advisors and attorneys, the large shareholders of a closely held corporation executed what amounted to a sale of the corporation. In an attempt to avoid taxes on that transaction, they used a so-called “midco transaction,” in which an intermediary or “middle company” facilitated the sale of the corporation’s stock and the (purportedly separate) transfer of a substantial portion of its assets to a third-party purchaser. But the Internal Revenue Service took the position, later upheld by the federal courts, that this was in substance not a stock sale separate from an asset sale but, instead, a single transaction: the direct sale of the corporate assets involving a sale of stock. See Shockley v. Commissioner, 872 F.3d 1235, 1245- 46, 1250-51, 1256 (11th Cir. 2017) (affirming IRS decision to disregard the midco transaction and assess taxes to transferees accordingly). As a result, large shareholders in the corporation, including corporation founders Terry Shockley and Sandy Shockley, were assessed significant tax liabilities as transferees under federal and state law. See id. at 1256.

In the wake of the imposition of these significant tax liabilities, investors in the corporation brought this action in Dane County Circuit Court. At issue in this action is the allocation of responsibility for causing the tax liabilities among the Shockleys, accountants, lawyers, and others. The Shockleys joined the action as intervening plaintiffs. Various parties settled out of the case, pursuant to a Pierringer release. By the time of trial, the remaining plaintiffs were the Shockleys and the remaining defendants were the law firm Murphy Desmond, an attorney of that firm, and the firm’s malpractice insurer. The jury returned verdicts resolving a range of issues regarding alleged negligence and intentional misrepresentations by various individuals and entities. This included jury findings that Terry Shockley and Murphy Desmond were negligent, but also that the defendants who had entered into pretrial settlements with the plaintiffs had committed intentional torts. The circuit court considered post-trial arguments and entered a decision and order granting Murphy Desmond’s motion for judgment on the verdict. This was based in part on the court’s conclusion that the causal negligence that the jury attributed to Murphy Desmond was fully satisfied through indemnity by operation of the Shockley’s pretrial Pierringer-release settlements with settling defendants, because the settling defendants were intentional tortfeasors.

The arguments of the Shockleys on appeal fall into three categories. The first two categories of arguments are that the circuit court erroneously exercised its discretion: (1) in making rulings related to evidence or argument regarding the existence of the pretrial Pierringer-release settlements and (2) in denying the Shockleys’ post-trial motions to change verdicts based on their claims that the verdicts were not supported by sufficient evidence. The third category of arguments is that the circuit court misapplied indemnity principles to determine that Sandy Shockley and Shockley Holdings are not entitled to any recovery in this case beyond what they received in the pretrial settlements. We affirm on all issues.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Cory Joseph Eubanks

Case No.: 2020AP1673-CR

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Sufficiency of Evidence

Cory Eubanks appeals a judgment of conviction for operating a motor vehicle with a prohibited blood alcohol concentration (PAC) as a fourth offense, following a jury trial. Eubanks contends that the evidence was insufficient to sustain the jury verdict. Eubanks also contends that the prosecutor made improper remarks during closing arguments. We reject these contentions. We affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Jean M. Robinson

Case No.: 2021 WI 80

Focus: Attorney Reinstatement Hearing

This court has pending before it Attorney Jean M. Robinson’s petition for reinstatement of her license to practice law in Wisconsin. Upon consideration of the reinstatement petition; the Office of Lawyer Regulation’s (OLR) response pursuant to Supreme Court Rule (SCR) 22.30(4); the parties’ SCR 22.30(5)(a) stipulation; and the OLR’s memorandum in support of the stipulation, we conclude that Attorney Robinson’s petition for reinstatement should be granted.

Reinstatement granted

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Daniel Rivas-Villegas v. Ramon Cortesluna

Case No.: 20-1539

Focus: Qualified Immunity

Petitioner Daniel Rivas-Villegas, a police officer in Union City, California, responded to a 911 call reporting that a woman and her two children were barricaded in a room for fear that respondent Ramon Cortesluna, the woman’s boyfriend, was going to hurt them. After confirming that the family had no way of escaping the house, Rivas-Villegas and the other officers present commanded Cortesluna outside and onto the ground. Officers saw a knife in Cortesluna’s left pocket. While Rivas-Villegas and another officer were in the process of removing the knife and handcuffing Cortesluna, Rivas-Villegas briefly placed his knee on the left side of Cortesluna’s back. Cortesluna later sued under Rev. Stat. §1979, 42 U. S. C. §1983, alleging, as relevant, that Rivas-Villegas used excessive force. At issue here is whether Rivas-Villegas is entitled to qualified immunity because he did not violate clearly established law. On the facts of this case, neither LaLonde nor any decision of this Court is sufficiently similar. For that reason, we grant Rivas-Villegas’ petition for certiorari and reverse the Ninth Circuit’s determination that Rivas-Villegas is not entitled to qualified immunity.

Reversed and petition granted

Dissenting:

Concurring:

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United States Supreme Court

Case Name: City of Tahlequah, Oklahoma, et al., v. Austin P. Bond

Case No.: 20-1668

Focus: Qualified Immunity

Rollice’s estate filed suit against, among others, Officers Girdner and Vick, alleging that the officers were liable under 42 U. S. C. §1983, for violating Rollice’s Fourth Amendment right to be free from excessive force. The officers moved for summary judgment, both on the merits and on qualified immunity grounds. The District Court granted their motion. Burke v. Tahlequah, 2019 WL 4674316, *6 (ED Okla., Sept. 25, 2019). The officers’ use of force was reasonable, it concluded, and even if not, qualified immunity prevented the case from going further. Ibid.

A panel of the Court of Appeals for the Tenth Circuit reversed. 981 F. 3d, at 826. The Court began by explaining that Tenth Circuit precedent allows an officer to be held liable for a shooting that is itself objectively reasonable if the officer’s reckless or deliberate conduct created a situation requiring deadly force. Id., at 816. Applying that rule, the Court concluded that a jury could find that Officer Girdner’s

initial step toward Rollice and the officers’ subsequent “cornering” of him in the back of the garage recklessly created the situation that led to the fatal shooting, such that their ultimate use of deadly force was unconstitutional. Id., at 823. As to qualified immunity, the Court concluded that several cases, most notably Allen v. Muskogee, 119 F. 3d 837 (CA10 1997), clearly established that the officers’ conduct was unlawful. 981 F. 3d, at 826. This petition followed.

The Tenth Circuit contravened those settled principles here. Not one of the decisions relied upon by the Court of Appeals—Estate of Ceballos v. Husk, 919 F. 3d 1204 (CA10 2019), Hastings v. Barnes, 252 Fed. Appx. 197 (CA10 2007), Allen, 119 F. 3d 837, and Sevier v. Lawrence, 60 F. 3d 695 (CA10 1995)—comes close to establishing that the officers’ conduct was unlawful. The Court relied most heavily on Allen. But the facts of Allen are dramatically different from the facts here. The officers in Allen responded to a potential suicide call by sprinting toward a parked car, screaming at the suspect, and attempting to physically wrest a gun from his hands. 119 F. 3d, at 841. Officers Girdner and Vick, by contrast, engaged in a conversation with Rollice, followed him into a garage at a distance of 6 to 10 feet, and did not yell until after he picked up a hammer. We cannot conclude that Allen “clearly established” that their conduct was reckless or that their ultimate use of force was unlawful.

The other decisions relied upon by the Court of Appeals are even less relevant. As for Sevier, that decision merely noted in dicta that deliberate or reckless preseizure conduct can render a later use of force excessive before dismissing the appeal for lack of jurisdiction. See 60 F. 3d, at 700–701. To state the obvious, a decision where the court did not even have jurisdiction cannot clearly establish substantive constitutional law. Regardless, that formulation of the rule is much too general to bear on whether the officers’ particular conduct here violated the Fourth Amendment. See al-Kidd, 563 U. S., at 742. Estate of Ceballos, decided after the shooting at issue, is of no use in the clearly established inquiry. See Brosseau v. Haugen, 543 U. S. 194, 200, n. 4 (2004) (per curiam). And Hastings, an unpublished decision, involved officers initiating an encounter with a potentially suicidal individual by chasing him into his bedroom, screaming at him, and pepper-spraying him. 252 Fed. Appx., at 206. Suffice it to say, a reasonable officer could miss the connection between that case and this one. Neither the panel majority nor the respondent has identified a single precedent finding a Fourth Amendment violation under similar circumstances. The officers were thus entitled to qualified immunity.

The petition for certiorari and the motions for leave to file briefs amici curiae are granted, and the judgment of the Court of Appeals is reversed

Dissenting:

Concurring:

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