Seventh Circuit Update Part 2: August Cases
August was another busy month. As usual, we’ve tried to pull those cases with the clearest relevance to our mostly state-court practicing readers. This month featured a rare defense win on other-acts, a window tint stop case, and a bizarre jury misconduct case involving an over-prepared foreperson among other interesting topics.
United States of America v. Ausarian Carney, No. 25-1408: Carney and his sister Maclin-Carney were charged with kidnapping a local businessman. At their joint trial, the Government admitted letters written by Maclin-Carney which “suggested Maclin-Carney wanted her relatives to corroborate a false alibi for her and her brother.” On appeal, he argues this was plain error, specifically a violation of his Confrontation rights. Although the Court recognizes some tension in the substantive law, it ultimately affirms based on an application of the harmless error rule.
United States of America v. Miguel A. Morales-Garcia, No. 25-1199: Morales-Garcia went to trial on a drug charge, with the only disputed issue being the weight of the drugs at issue. In a rare defense win, he persuades the Court that the district court erroneously admitted evidence related to a prior heroin sale as other-acts evidence. The Seventh concludes this was impermissible propensity evidence which unfairly prejudiced Morales-Garcia. It also holds that the error was not harmless and grants a new trial on that basis. However, it rejects Morales-Garcia’s argument that the prosecutor’s statement during rebuttal–that the defense attorney “didn’t talk to you about whether or not the defendant’s guilty”–violated his Fifth Amendment rights. This statement was not improper and was instead “a response to defense counsel’s closing and a reminder to the jury of the issues in the case, not an improper comment on Morales-Garcia’s silence.”
United States of America v. Shawn Pena, No. 25-1691: Pena challenges the outcome of a revocation hearing on multiple grounds. First, he claims he did not receive proper notice of certain police reports that were prepared only days before the hearing. However, he waived that issue by agreeing to move forward with the hearing. Second, he claims that the court improperly relied on the reports, which related to a charge the parties had agreed to dismiss. He also makes a related claim that the reports were insufficiently reliable. The Court concludes the lower court had the authority to consider these facts and Pena waived any challenge to the reliability of the reports. Pena also claims a plea breach because the prosecutor “reminded” the court of its ability to impose a sentence greater than the negotiated recommendation. That “recognition of a basic legal principle was not an invitation for the court to stray from the agreed-upon recommendation.” The prosecutor was also under no obligation to oppose the harsher recommendation of a probation officer.
United States of America v. Damond K. Wiley, Jr., No. 24-2744: Officer followed Wiley’s BMW, watched him pull in and then out of a “ramshackle” property and ultimately executed a traffic stop. It appeared that his windows violated the tint law. Wiley then ran on foot. One of the troopers looked inside the car and retrieved a firearm located on the driver’s seat. After Wiley was apprehended, police conducted a “probable cause” search of the car, which resulted in the discovery of drugs and drug paraphernalia. On appeal, Wiley argues that the police exaggerated or were otherwise inconsistent in their explanations of his driving behavior justifying the stop. Although the Court agrees that dash camera footage “does not make visible Mr. Wiley’s alleged failure to signal, his speeding, and his failure to stop at a stop sign” it does show the “darkly tinted windows.” That observation alone justifies the ensuing seizure. As to the Trooper’s search of the car following Wiley’s flight, there was clearly reasonable suspicion that Wiley was involved in criminal activity. And, given the tinted windows, it was impossible for the officer to know whether other persons might be inside the car. It was also justifiable to assume that Wiley could be returning to the car, possibly to arm himself. Under these circumstances, the protective search of the BMW was permissible.
United States of America v. Terry Ferguson, No. 23-3198 & 25-2081: Post-sentencing, Ferguson moved to vacate his sentence, alleging that his lawyer was ineffective due to a conflict of interest. (Brindley, the lawyer, remains Ferguson’s attorney in this appeal). As grounds, Ferguson points to remarks by law enforcement, in which they told Ferguson during his arrest that they believed Brindley was up to something “shady” with Ferguson and Ferguson came close to cooperating against Brindley before deciding otherwise and denying that Brindley was involved in anything questionable. While the facts are certainly intriguing, ultimately the Court holds that these comments do not prove an actual conflict. Nor, under the facts, has Ferguson proved an “adverse effect” as a result of the alleged conflict.
Brian Pfalzgraf v. Rusk County, Wisconsin and Ben Reisner, No. 25-2129: This is an interesting § 1983 case arising from Pfalzgraf’s successful defenses against criminal charges stemming from a traffic stop. Deputy Reisner observed Pflazgraf signal that he was about to turn into a gas station where several police cars were parked. Pfalzgraf turned his signal off and continued driving. He exited the southbound highway and began driving north on a side-street. While observing Pfalzgraf’s car, Deputy Reisner noticed the license plate was “obscured” with snow. He initiated a traffic stop. Convinced that something under “961” was afoot, the Deputy questioned Pfalzgraf about alleged drug activity, conducted a patdown, performed a K9 sniff, and manually searched the car. After 30 minutes of roadside investigation continued to reveal no hard evidence, the Deputy told Pfalzgraf he was going to search his person. In response, Pfalzgraf appeared to grab something from his pocket which was revealed to be drugs. The criminal charges were later dropped after the “State agreed . . . that the traffic stop had been unlawfully extended . . . .” On appeal from a summary judgment decision in Pfalzgraf’s favor, the Court finds that a jury could reasonably find that the totality of the Deputy’s observations could have furnished continuing reasonable suspicion. It affirms, however, the lower court’s finding that the frisk was clearly unlawful.
Johnnie L. Savory v. Allen Andrews, No. 24-2947: This case has a long saga which originates with a 1977 double homicide. Savory was 14. He was arrested, repeatedly interrogated, and ultimately confessed. Years of postconviction litigation followed his conviction, resulting in a 2014 pardon. His § 1983 claim has been moving along since 2017. As one would expect, all his claims fail. However, the case is notable inasmuch as Judge Jackson-Akiwumi dissents and would hold that the interrogation tactics were “clearly” unlawful.
Derek Fields v. United States of America, No. 24-2913: Fields rejected multiple pleas and went to trial on charges related to a kidnapping. He now pursues a § 2255 motion alleging that his lawyer was ineffective by virtue of his lawyer’s “inadequate advice in connection with a plea offer.” Although the Court is willing to assume there was deficient performance when his lawyer failed to “thoroughly review” a potential plea that was extended during jury selection. However, the contemporaneous evidence disproves Fields’s claim he would have accepted the plea. Nor does Fields show why the resulting sentence would have been favorable.
United States of America v. Peter J. Braun, No. 25-2740: This is yet another “hash match” case. Here, both Microsoft and Google informed NCMEC that images mashing known CSAM were uploaded to their servers. NCMEC alerted the Wisconsin DOJ. As part of the investigation, the agent viewed the images in question without a warrant. The district court granted a motion to suppress, holding that the agent needed a warrant to view the images. Without the agent’s description of the images derived from that warrantless viewing, the court further concluded there was no probable cause. On appeal, the Court concludes there was sufficient information even if the agent’s descriptions are omitted. First, the affidavit established the reliability of the tipsters, Microsoft and Google, and the tips themselves had sufficient detail. Second, one of the files had a name which, on its face, suggested that it was CSAM. Third, the agent was able to obtain records related to a 2015 investigation of Braun in which he was alleged to have been “interacting online with very young girls.”
United States of America v. Carrie Musselman, No. 25-2173 & 25-2494: It turns out that the foreperson in this case did online research about how to be a “good foreperson.” She generated a document to help her lead the group based on her research. Unfortunately, one of the articles she reviewed (but did not bring into the jury room or included on the controverted document) contained some concerning misadvice that would appear to encourage a violation of the defendant’s right to a unanimous verdict. While the Court is unsure whether a rebuttable presumption of prejudice attaches under these circumstances, the Court is otherwise satisfied that the district court appropriately exercised its discretion in denying the motion for a new trial based on the juror’s outside research. Essentially, there is no evidence the concerning article informed the foreperson’s work on the jury and that article never made it into the jury room, either.