Securities Securities fraud; class actions; loss causation Securities fraud plaintiffs need not prove loss causation in order to obtain class certification. It is undisputed that securities fraud plaintiffs must prove certain  things in order to invoke Basic ’s rebuttable presumption ...

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Sentencing Allocution Maceo Downer appeals from a judgment of conviction, entered upon his guilty plea, and an order denying his postconviction motion for a new sentencing hearing. Downer contends that trial counsel was ineffective when she failed to advise him ...

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Motor Vehicles OWI; blood tests; presumption of admissibility Eric Schroeder appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, first offense. He argues the circuit court erred by denying his motion to ...

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Search and Seizure Warrantless entry; consent The consent of one occupant to enter overrides the refusal of another occupant, when neither are the subject of the search or arrest. “Randolph acknowledged that ‘Fourth Amendment rights [with regard to third-party consent] ...

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Sentencing Career offender enhancement; retroactivity A defendant unlawfully sentenced as a career offender can collaterally attack the sentence. “The fact that Mr. Narvaez’s sentence falls below the applicable statutory-maximum sentence is not alone determinative of whether a miscarriage of justice ...

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Sentencing Crack cocaine; due process The 100:1 crack to powder cocaine ratio does not violate due process. “[T]he Sentencing Commission reports also contain findings indicating that crack is at least somewhat more dangerous than powder cocaine. For example, in 2002, ...

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Sentencing Discretion Mark Steven Marker appeals the judgment entered on his guilty plea to first-degree recklessly endangering safety, see Wis. Stat. § 941.30(1), and the order denying his motion for postconviction relief. Marker claims that the circuit court erroneously exercised ...

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Sentencing Resentencing; new factors Heather Lee Bender moved for resentencing citing as a new factor the inability of Taycheedah Correctional Institution (TCI) to provide her with appropriate mental health treatment. We agree with Bender that mental health treatment at TCI ...

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Sentencing Restitution Guenther Huebner appeals from an order denying his motion for reconsideration of the $130,000 in restitution he was ordered to pay Wisconsin Gas Company, LLC, d/b/a WE Energies. He asks that we set restitution at zero because (1) ...

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Sentencing DNA surcharge Romale A. Richardson appeals from a judgment of conviction, entered upon his guilty plea, and an order denying his postconviction motion. The sole issue on appeal is whether the circuit court erroneously exercised its discretion when it ...

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Sentencing Discretion Dustin Przybylski seeks resentencing on his conviction for operating a motor vehicle while under the influence of an intoxicant or other drug, fourth offense, contrary to Wis. Stat. § 346.63(1)(am). Przybylski claims that the circuit court did not ...

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Criminal Procedure Ineffective assistance Jimmie C. Grayer appeals the judgment entered on a jury verdict finding him guilty of first-degree reckless injury (use of a dangerous weapon), see Wis. Stat. §§ 940.23(1)(a) & 939.63, and from an order denying his ...

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Criminal Procedure Ineffective assistance Patrick Kelly Davis appeals from a judgment of conviction entered after a jury found him guilty of robbery by threat or use of force and from the trial court’s order denying his postconviction motion. Davis asserts ...

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Criminal Procedure Miranda warnings Tammi L. LaFave appeals from an amended judgment of conviction for felony murder, as a party to a crime, contrary to Wis. Stat. §§ 940.03 and 939.05 (2007-08), and from an order denying her postconviction motion. ...

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Witness Tampering Sufficiency of evidence To prove witness tampering, the Government must show there was a reasonable likelihood that a relevant communication would have been made to a federal officer. To determine what the Government must prove in such instances, ...

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Criminal Procedure Speedy Trial Act 18 U.S.C. 3161(h)(1)(D) stops the Speedy Trial clock from running automatically upon the filing of a pretrial motion irrespective of whether the motion has any impact on when the trial begins. Several considerations, taken together, ...

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Sexually Violent Persons Postcommitment treatment Scott Maher appeals a judgment entered on a jury verdict determining that he is a sexually violent person and committing him pursuant to Wis. Stat. ch. 980 (2009-10). He also appeals an order of the ...

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Narcotics Weight; right to jury trial Roshawn Smith appeals the judgment of conviction for possession with intent to deliver more than 10,000 grams of tetrahydrocannabinol (THC) as party to the crime. He also appeals the circuit court’s order denying his ...

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Motor Vehicles OWI; alternative tests Michael Smith appeals the order denying his motion to suppress evidence and the judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI) and operating a motor vehicle with ...

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Child Enticement Sufficiency of the evidence Ronald Myren appeals a judgment of conviction and an order denying his motion for postconviction relief. We affirm. This opinion will not be published. 2010AP794-CR State v. Myren Dist IV, La Crosse County, Passel, ...

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Sex Offender Registration Plea withdrawal Where a defendant’s failure to register as a sex offender should have been a misdemeanor rather than a felony, he is entitled to withdraw his guilty plea. “In order for the circuit court to satisfy ...

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Motor Vehicles OWI; personal jurisdiction James R. Matel appeals a judgment convicting him of operating while under the influence (first) and keeping open intoxicants in a motor vehicle, contrary to Wis. Stat. §§ 346.63(1)(a) and 346.935(3) (2009-10). Matel argues that ...

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Criminal Procedure Successive appeals Sarah D. Burrell, pro se, appeals from an order denying her sentence modification motion. Because we conclude that her claims are procedurally barred, we affirm. This opinion will not be published. 2009AP3186 State v. Burrell Dist ...

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Criminal Procedure Out-of-court identifications; self-representation; Confrontation Clause Steven Johnson, pro se, appeals a judgment of conviction entered after a jury found him guilty of robbery by threat of force pursuant to Wis. Stat. § 943.32(1)(b) (2007-08). Johnson sets forth numerous ...

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Criminal Procedure Personal jurisdiction; subject matter jurisdiction Kray Burkart, pro se, appeals a default judgment, convicting him of forfeiture harassment. Burkart alleges the circuit court lacked subject matter and personal jurisdiction, and the complaint violated his constitutional rights. We affirm. ...

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Criminal Procedure Ineffective assistance; venue; new trials Crystal P. Keith appeals from an order denying her motion for postconviction relief. Keith was convicted of one count of first-degree reckless homicide for the death of her foster son, Christopher, and one ...

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Criminal Procedure Closing argument The government’s repeated reference to the defendant as a “career offender” during closing argument does not entitle the defendant to a new trial. “The government’s statements about Boling’s career offender status did not give rise to ...

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Criminal Procedure Counsel of choice Where the district judge arbitrarily denied a continuance to enable the defendant to retain counsel of his choice, the conviction must be vacated. “The district court also had the duty to consider that Sellers’s new ...

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Criminal Procedure Ineffective assistance Michael Hudson appeals the judgment of conviction of one count of child enticement and one count of sexual assault of a child under Wis. Stat. §§ 948.07(1) and 948.02(1)(b) (2009-10). He also appeals the order denying ...

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