Because June failed to produce many relevant cases, and posts were delayed as a result of our migration to a new site, we’ve consolidated June and July’s cases. This installment features decisions clarifying the difference between lay and expert testimony, a Fourth Amendment win, a habeas win, and a mixed bag of other interesting cases.
Mark Petersen v. Stefanie Pedersen, No. 24-1206: We’d love to know what happened in the Winnebago Circuit Court in this case. Petersen was arrested for an OWI after police responded to an accident and found him attempting to change a tire. He was subject to a .02 BAC as a result of his prior convictions. He tried to run away, spoke with a slurred voice, smelled of alcohol, was swaying, and had bloodshot and glassy eyes among other indicia of intoxication. He claimed his daughter had been driving the car. The Winnebago Circuit Court later granted a defense motion to suppress, finding the officer lacked probable cause. At that point, Petersen sued the government, alleging a violation of his constitutional rights. Independently assessing the facts, however, the Court holds there was clearly PC for an OWI. And, while Petersen makes the interesting argument that the lower court’s suppression ruling should have preclusive effect, the Court rejects those arguments. It also rejects arguments that the blood draw was unlawful.
United States of America v. Falandis Russell and Terrance Williams, Nos. 24-1652 & 24-1685: This federal case arises from contested competency proceedings. While an initial report supported a finding of incompetency, the testimony of a BOP psychologist following Russell’s placement at a medical facility undermined that conclusion. That opinion was also shared by another examiner. The circuit court sided with these reports and found Russell competent to proceed. On appeal, Russell makes several arguments seeking to challenge the circuit court’s discretionary decision. Yet, those arguments run into the buzzsaw of appellate review and the Seventh affirms.
United States of America v. Tangtang Zhao, No. 23-3336: While this case mostly deals with a niche federal issue, it resolves an interesting issue of statutory construction and holds that a pharmacist who sold blank COVID-19 vaccination cards on eBay can be prosecuted for “theft of government of property.”
United States of America v. Brian Fenner and Dennis Birkley, Nos. 23-2177 & 24-1089: Two of the issues presented to the Court for review focus on allegedly improper expert testimony and the case includes a nice discussion that is helpful for clarifying when lay testimony crosses into the “expert” realm. Here, the Seventh concludes that a forensic accountant was not testifying in an expert capacity when she merely summarized the voluminous financial records. Although the accountant’s testimony did rely on “rudimentary math,” this did not transform the testimony into expert testimony. While the testimony of another investigator who summarized further records is a “closer call” because she did testify to the “intent” behind certain acts, the Court ultimately concludes any error was harmless. And, for those who want to break their brains reading about the Bruton rule, this case also involves a nuanced discussion of an alleged violation with the Court’s ultimate conclusion that this error is also harmless.
United States of America v. Dana Curtin, No. 23-3368: Dana Curtin, believing he was speaking to a father offering his minor child for sex, drove to the rendezvous and was found to be in possession of cash, condoms, and lube. At his jury trial, he wanted to offer the testimony of an expert who would testify that he lacked pedophilic tendencies and that an interest in adult sex and pornography does not evince an interest in child sex and CSAM (child sexual abuse material). Unfortunately, he waived the first issue. On the second, the Court holds that the district court properly exercised its discretion in determining that this evidence would not help the jury.
United States of America v. Pierre Robinson and Derrick Swanson, Nos. 23-1498 & 23-2171: At this homicide trial, the Government hoped to call Robinson’s cousin, Anise, as a witness. Anise had previously identified Robinson as the shooter in interviews with police and in her grand jury testimony. At the time of trial, however, she claimed to be suffering from memory loss due to a medical event. “She could not recognize Robinson nor remember her prior identifications of him as the shooter in the surveillance footage.” The Government was therefore permitted to introduce her prior statements. While Robinson obviously had an opportunity to cross-examine Anise, he argues that admission of these statements violated his confrontation rights because her memory loss deprived him of a “meaningful” opportunity for cross-examination. The Court concludes, however, that Robinson had a sufficient opportunity to cross-examine Anise under these circumstances and affirms.
Isabelle Arana v. Board of Regents of the University of Wisconsin System, No. 22-2454: We thought this case might be of interest to our readers who remember this high-profile criminal case, in which a star football player was acquitted of a charge of second-degree sexual assault of an intoxicated person following a Dane County jury trial. After the verdict, UW speedily readmitted the player, who had been expelled following a Title IX investigation. In a decision that is openly critical of UW’s treatment of the case and implies throughout that the university’s decision was motivated by improper factors such as donor input, the Seventh Circuit reverses a lower court ruling which had dismissed a lawsuit from one of the alleged victims claiming that the university’s actions evinced deliberate indifference to her sexual harassment.
United States of America v. Heriberto Carbajal-Flores, No. 24-1534: Of possible interest to those litigating Second Amendment issues, here the Seventh Circuit conducts the required historical analysis and concludes that a federal law barring “illegal aliens” from possessing firearms is constitutional.
United States of America v. Deandre Maxwell and Tyrone Fulwiley, Nos. 23-2910 & 24-1174: This case arises from the execution of a search warrant on an apartment which turned up evidence of drug dealing. The warrant relied heavily on the statements of a CI, “Maddison Kirk.” As Fourth Amendment experts may know, the Seventh has some good cases on CI reliability, which are discussed herein. In this case, however, the Court distinguishes those cases to find that the reliability of the CI was sufficiently established and that probable cause existed to search the apartment.
United States of America v. Richard Walker, No. 24-1522: A rare defense win on the Fourth Amendment! A fugitive task force arrived at the home of a Laverne Shipp, hoping to arrest Walker, who was on supervised release and had removed his ankle monitor. Walker eventually responded to the officers and “was arrested outside the front door without incident.” Despite arresting the target of their operation, police then decided to conduct a “protective sweep” of the residence. This included the room of Walker’s son. During the protective sweep, officers lifted up a mattress and discovered a firearm between the mattress and box spring. When Shipp arrived home, she consented to a further search which revealed drug evidence. On appeal, the Court first concludes that Walker had standing to challenge the protective sweep, as he was an overnight guest at the residence. While the Government claims he did not have standing because his presence at the residence may have constituted a violation of his supervision conditions, the Court holds that under these facts this does not divest him of standing. Next, the Court critiques the district court’s analysis of the justification for the protective sweep and holds that the lower court failed to conduct the correct legal analysis–whether officers had a reasonable belief that the premises harbor a “person who poses a danger to those on the scene.” Ultimately, however, the Court does not have to resolve whether the sweep was justified at the outset because it was clearly unlawful in scope. Under these facts, there was no justification to lift up the mattress to determine if someone could have been hiding between the mattress and box spring. The Court therefore remands with instructions that the lower court assess whether the doctrine of inevitable discovery precludes application of the exclusionary rule and whether the subsequent consent search was tainted by the unlawful mattress search.
United States of America v. David Swartz, No. 24-2459: Swartz ultimately loses on his inaccurate information claim, that the circuit court relied on an inaccurate understanding of his net worth prior to the imposition of a hefty fine. We thought the case was worth bringing attention to our readers, however, as a reminder that persuasive federal case law is still more friendly on this front than Wisconsin authority:
We note on the outset that “[t]he standard for determining whether the district court relied on improper information is a low one.” United States v. Miller, 900 F.3d 509, 513 (7th Cir. 2018) (quoting United States v. Barnes, 907 F.2d 693, 696 (7th Cir. 1990)). To meet this standard, Swartz must show that “false information was part of the basis for the sentence.” Id. (quoting Lane, 738 F.2d at 865). Reliance occurs when “the court gives explicit attention to it, founds its sentence at least in part on it, or gives specific consideration to the misinformation before imposing sentence.” Id. (quoting United States v. Chatman, 805 F.3d 840, 844 (7th Cir. 2015)). Showing reliance does not require a showing of prejudice—in other words, that the sentence would have been different had the judge been properly informed. Id.
Daniel Christensen and Paula Christensen v. William Weiss, et al, No. 24-1026: This is not a case involving criminal law. However, as usual, we include the matter in our digest because it may be of relevance to practitioners in the county from which it originated, Vilas. In a decision that discusses the mechanics of the Vilas County jail in detail, the Court ultimately rejects attempts to hold Donna Christensen’s jailers accountable for her death by suicide while in custody on a probation hold.
Dante Small v. Ryan Woods, No. 23-1397: Small wins a minor habeas victory by persuading the Court he is entitled to an evidentiary hearing on his claim that his lawyer was ineffective by misadvising him about the applicable sentencing exposure, causing him to reject a plea. The case is notable as it is decided on the “unreasonable application” of fact prong, a very difficult hurdle to surmount for any habeas litigant.
United States of America v. Auston McLain, No. 23-3384: This is an engaging opinion, where the defendant, McLain, explains away his meetup with a sixteen-year-old as part of a plan to rescue that person from alleged human trafficking. The Court upholds the district court’s decision excluding McLain’s expert, who would testify that McLain’s prior stroke impaired his decision-making skills and was therefore relevant to determining whether he had the requisite criminal intent. McClain does make some valid points on appeal by criticizing the prosecutor’s closing argument, which mocked McClain for “making up” a story in response to these allegations. The Court therefore includes a nice summary of some favorable prosecutorial misconduct case law along with an admonishment to “stay well within the lines” of proper argument in the future. Overall, however, the Court finds the comment did not cross the line and did not impact McLain’s right to a fair trial. One judge dissents from that conclusion.
Richard S. Schneiter v. Kevin Carr, et al, No. 22-2137: Finally, we close with another non-criminal opinion that, because it involves the Wisconsin DOC, is probably of interest to our readers. Following Schneiter’s termination from the DOC for posting what were later characterized as “offensive” memes, the Court ultimately upholds that disciplinary decision.