We made the mistake of waiting to consolidate our monthly digest given the slow pace of the court. Turns out there’s a lot to post on! This installment features an interesting decision on child porn possession, multiple alleged Franks violations, some Fourth Amendment wrangling, disturbing prisoner abuse in Wisconsin institutions, and a handful of non-Wisconsin habeas cases!
United States of America v. Michael Clark, No. 24-1403: This is a Wisconsin-originating case involving an alleged Franks violation. The Seventh previously remanded the matter for a hearing on Clark’s claim. The basis for the appeal was an investigator’s omission of “damaging credibility information” about a confidential informant in a search warrant affidavit. On remand, the officer testified that he was acting in accord with office policy when he omitted that information. The district court found the explanation credible and concluded the officer did not act deliberately or recklessly. That finding is reviewed for clear error and, under the forgiving legal standard, the court affirms. The case is notable, however, for a multi-paragraph discussion regarding the appellant’s failure to file a reply brief. The court reminds the reader of the usefulness of such a brief and advises advocates that it is “unwise” to leave the last word unsaid.
United States of America v. Nathaniel J. Jacobs, Sr., No. 22-2615: Jacobs attracted police attention when he showed up to a hospital with a gunshot wound. He ultimately admitted the wound was accidentally self-inflicted, which was a problem for Jacobs as he was also a convicted felon. A later search of his residence turned up guns and drugs. His girlfriend was a key government witness at the ensuing trial. Jacobs argues that his Sixth Amendment right of confrontation was violated when the court did not allow him to cross-examine his girlfriend “about any potential bias or motive she had to testify favorably for the federal government in return for leniency” in a separate state proceeding. Specifically, Jacobs wanted to question his girlfriend about a different pending case she was involved in also involving guns and drugs. Jacobs argues that this line of cross-examination was relevant not only to establishing that she was involved in the criminal activity at issue in this case, but also to establish a reason to testify favorably for the government. The court ducks the interesting substantive issue, however, by invoking our old friend, harmless error. And, while Jacobs also presents an interesting Fourth Amendment claim, the court holds that he failed to preserve that issue for review.
Erika Mabes and Brian Mabes v. Shannon Thompson et al, Nos. 24-1048 & 24-1082: Probable rage-reading for those in the AHT trenches, we thought this civil case was interesting inasmuch as it depicts the difficulties faced by parents when abuse allegations are later “unsubstantiated.” Here, the Mabes attempt to sue the doctor who originally opined that their child’s injuries were the product of abuse. However, the court concludes that qualified immunity protects a doctor who provides an opinion, even an opinion that turns out to be incorrect, to child welfare authorities. The court also holds that the child welfare authorities are entitled to qualified immunity, as they reasonably believed removal of a child was lawful under these circumstances. It also rejects due process challenges to the child welfare proceedings.
David C.L. Walton v. Ashley Nehls, No. 23-1207: This case is of borderline relevance to our readers, but we thought the Wisconsin-originating nature of this case might be of some interest. Walton, a prisoner, sues Nehls, a prison nurse, for violating his Eighth Amendment rights by engaging in a sexual relationship with him while he was incarcerated. Here, the court is asked to resolve a tricky question, whether a presumption of non-consent should apply in such a setting. Under these facts, however, the court finds it is unnecessary to answer that question as the evidence of consent would overcome such a presumption if one did in fact exist.
United States of America v. Edward C. Brown, Nos. 24-1581 & 24-1582: A sentence that only makes sense in this context: A really interesting child pornography case! Brown was on supervised release. A probation officer noticed an unreported cell phone during a home visit, seized it, and submitted it for forensic examination. Police recovered 75 thumbnail images of CP “in an inaccessible cache folder.” Following Brown’s conviction at trial, he challenges the sufficiency of the evidence on appeal. Interestingly, the Seventh notes that, if the prosecution were based merely on cached images, this could pose a proof problem. If the files were inaccessible, it seems difficult to say Brown was “in possession” of them on the date in the charging document. However, proof of cached files can still be evidence of previous possession. (Under the facts of this case, any variance between the date in the charging document and the dates he could have allegedly possessed the files is not a legal issue). The further problem for the State is that the cached files lacked metadata and a defense expert was able to raise the question of whether the files were placed on this phone before Brown would have had access to it. The Court resolves these questions, however, by looking to the other evidence supporting guilt. Here, Brown’s statements, certain other suggestive pieces of forensic evidence on the phone, his prior convictions, and his concealment of the phone all are sufficient to support the jury verdict under the deferential standard of review.
United States of America v. Marcus T. Dixon, No. 23-2427: This is an interesting Fourth Amendment case with respect to both standing and searches conducted pursuant to release conditions. Suspecting that Dixon, who was at that time under supervised release, was involved in new criminal activity, probation officers searched the purple Pontiac he arrived in for a meeting with his agent. They recovered a cell phone, searched through that and then, following an evidentiary trail, searched a residence, a car at that residence, and a duffel bag inside the car. Dixon renews his challenges to the searches on appeal. Unfortunately, as the Seventh observes, he provided no actual proof of his standing to challenge any of these searches and his conclusory averments in a pleading do not satisfy the standard. (To be fair, it also dings the district court for relying on the government’s unsupported statement of facts in its motion when deciding the issue, as well). As to the merits, the Court observes that the State failed to present actual evidence at the suppression hearing. However, it holds that, under the facts of this case, it is permitted to use the trial testimony to resolve the issue.
As to the first search of the Pontiac and the cellphone recovered therein, Dixon argues there must be a heightened standard requiring probable cause that the places searched under a probation/supervised release exception are in fact connected to the person under government supervision. The Seventh agrees “that when the government invokes a supervised release order to justify a warrantless search, it bears the burden of showing that the items or places searched were sufficiently controlled by or connected to the defendant to fall within the terms of his supervised release order and the parolee/probationer exception to the warrant requirement.” It leaves the specific “contours” of that rule for another day as, here, the officers were sufficiently certain the Pontiac and the phone were possessed by Dixon. And, under its reading of the conditions of release, officers were not required to have reasonable suspicion that the car and phone would contain evidence of a violation, only reasonable suspicion of a violation, period. These facts satisfy that low standard. Finally, although the searches of the residence, the second car, and the duffel bag pose more challenging 4A issues, Dixon has no standing to challenge those searches, as concluded above. Finally, it holds that the district court did not err in refusing to conduct an evidentiary hearing on the suppression motion.
Ryan Moderson et al v. City of Neenah et al, No. 23-2843: This case arises from a chaotic shooting which occurred in Neenah when police responded to reports of a lone gunman who had taken hostages at a motorcycle shop. While responding, police actually apprehended escaping hostages and detained them for questioning. Those aggrieved hostages sue, alleging Fourth Amendment violations. However, under the chaotic fact pattern, the Court agrees the conduct of the police was reasonable and they were not required to “bet their lives on the accuracy of reports about a lone gunman.” The dangerousness of this situation justified the law enforcement conduct.
Grant Gambaiani v. Brittany Greene, Warden, No. 23-2690: In this habeas case, Gambaiani argues his Sixth Amendment rights were violated when the state court closed the courtroom for the testimony of an alleged child victim. The problem, however, is that his lawyer did not object. In addition to running into deference problems with respect to the state court findings of fact, Gambaiani’s merits argument is hampered by unclear SCOTUS precedent. First, “The Supreme Court has not squarely addressed whether a defendant waives his right to a public trial when he fails to object to a courtroom closure.” While the Seventh’s precedent may have been helpful on direct appeal, AEDPA is fatal here, as the Seventh is bound to look only to SCOTUS precedent. Second, as to the merits, SCOTUS has not clearly held that a partial closure of this nature is a public trial violation.
United States of America v. Rick P. Coley & David K. Duggar, Nos. 23-2494 & 23-2519: This case contains a nice discussion of the Seventh’s case law as to “constructive possession” with respect to a firearm. Here, Coley alleges there was insufficient proof he possessed a firearm that was, in fact, recovered from his bedroom. He alleges his roommates, who had access to the room, could have placed the gun there prior to federal agents discovering it. But the fact that it was recovered in a room over which he had physical control is sufficient to uphold the conviction.
United States of America v. Lamont Coleman, No. 23-2617: Relevant to our readers, Coleman raises a number of issues based on what he terms newly discovered evidence only revealed at sentencing. Here, police obtained a search warrant based, in part, by claiming there was relevant recorded surveillance footage. During sentencing, however, Coleman learned–apparently for the first time–that the recordings were “basically useless” due to their quality and were not, in fact, preserved. Coleman alleges this supports a medley of different legal claims, including Brady and Franks arguments. Prejudice dooms each and every one.
Lanita Dotson v. James Faulkner, No. 24-1799: This case, we admit, contains no substantive legal holdings relevant to our readers. However, we just thought Wisconsin readers, especially readers who have had their clients placed at Ellsworth Correctional, would be interested (horrified?) to read about this civil suit, wherein a guard raped this inmate multiple times while in DOC custody. Dotson fails to get all the money she would be entitled to, however, due to her attorney’s errors in litigating the issue of damages.
Mark Johnson v. Mark R. Sevier, Warden, No. 21-3239: Johnson pursues habeas relief after having been convicted of sexual assault in state court. His first claim is that his constitutional rights were violated when the trial court did not allow him to present evidence that other male contributors were discovered on the DNA swab from the victim’s underwear. The problem for Johnson, however, is that he did not include this claim on his “petition for transfer” from the court of appeals to the Indiana Supreme Court. While it would appear Indiana has a rule that would permit review of all claims raised in the court of appeals if a petition for transfer is granted (even if, as appears here, that issue was not included in the petition), the Seventh is unconcerned with the nuances of state law. Johnson could have fairly presented his claim for the Supreme Court’s review and did not; accordingly, he cannot now argue the state court of appeals’ decision entitles him to habeas relief. Johnson’s second claim is that the police violated his due process rights when they did not preserve the victim’s blood sample, which he claims would have proven that she was intoxicated. These claims are especially difficult even on direct review, however, and Johnson’s claim goes nowhere given the standard of review applicable to the lower court’s factual findings as well as the deferential reasonableness standard applied to its legal holdings.
Antonio M. Smith v. John Kind, et al, No. 22-2870: In a case that should make everyone feel really great about the doctrine of qualified immunity, the Seventh holds that a GBCI employee is entitled to qualified immunity for pepper spraying Smith despite knowing he had asthma and then placing him nude, in a cold cell, for 23 hours to punish him for his noncompliance with prison rules.
Steven Lindsey v. Ron Neal, No. 23-2789: In a rare habeas win (of sorts), Lindsey shows that he is not required to exhaust his state remedies before proceeding to habeas court given the Indiana court’s extraordinary delay (six years) in resolving his postconviction claims.