Weekly Case Digests January 20, 2019 January 24, 2020.

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Andrew J Dollard, et al. v. Gary Whisenand, et al.

Case No.: 19-1602; 19-1604; 19-1605

Officials: FLAUM, ROVNER, and HAMILTON, Circuit Judges.

Focus: Search Warrant Probable Cause

In 2013, the Drug Enforcement Administration (DEA) began investigating Dr. Larry Ley and his opioid addiction treatment company, Drug Opiate Recovery Network, Inc. (DORN), for dealing a controlled substance. After conducting undercover surveillance, lead agent Gary Whisenand decided Dr. Ley did not have a legitimate medical purpose in prescribing Suboxone, a drug used to treat opioid addiction.

After finding probable cause, two Indiana courts issued a series of warrants that culminated in twelve separate arrests of five medical providers (four physicians and one nurse) and seven non-provider DORN employees. In the ensuing prosecution, the Indiana courts quickly dismissed the charges against all the non-providers and the nurse. The State eventually proceeded to a bench trial against Dr. Ley, where an Indiana court ultimately acquitted him. Following this acquittal, the State dismissed the rest of the charges against the three remaining providers.

Together, DORN's providers and non-provider employees sued the DEA agent and others in federal court alleging false arrest, malicious prosecution, and civil conspiracy. The district court entered summary judgment for the defendants on all claims, holding probable cause supported the warrants used to arrest the plaintiffs. We affirm the district court's judgment as to every plaintiff except Joseph Mackey. With respect to Mackey, we reverse and remand the judgment because the undisputed facts at the summary judgment stage do not establish that officers had probable cause to arrest Mackey or even that reasonable officers could believe probable cause existed.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Michael A. Allgire

Case No.: 19-2348

Officials: FLAUM, HAMILTON, and BARRETT, Circuit Judges.

Focus: Sentencing Supervised release

The district court revoked Michael Allgire's supervised release after Allgire skipped out one month into his six-month term at a halfway house. The district court sentenced him to reimprisonment24 months on one count of his original conviction and 17 months on another count, set to run concurrently. He now argues both that his total 24-month sentence was unreasonable and that the district court committed reversible error by imposing two concurrent sentences. We disagree with both contentions.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals District III

Case Name: State of Wisconsin v. Bernard A. Fish, Sr.,

Case No.: 2018AP962-CR

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

Focus: Plea Withdrawal

Bernard Fish, Sr., appeals from both a judgment of conviction for being a felon in possession of a firearm and the denial of his postconviction motion. Fish claims he is entitled to plea withdrawal because the circuit court failed to establish a factual basis for his plea. He also argues the court did not make clear at the plea hearing the difference between a concurrent sentence and a consecutive sentence, and therefore his plea was not knowing, intelligent and voluntary. We reject Fish's arguments and affirm.

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WI Court of Appeals District III

Case Name: State of Wisconsin v. Toby J. Vandenberg

Case No.: 2018AP1810-CR

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

Focus: OWI Ineffective Assistance of Counsel

Toby Vandenberg appeals a judgment, entered upon his no-contest plea, convicting him of seventh-offense operating a motor vehicle while intoxicated (OWI) and an order denying his motion for postconviction relief. Vandenberg claims that his trial attorney provided ineffective assistance at his sentencing hearing, and he therefore seeks resentencing.

Vandenberg contends that his trial attorney performed deficiently at his sentencing hearing by: (1) arguing for the imposition of an illegal sentence; and (2) failing to meaningfully advocate for Vandenberg. He further contends that because his attorney's deficient performance was tantamount to a complete denial of counsel, we should apply a presumption of prejudice to his ineffective assistance claim. In the alternative, he argues that even if prejudice is not presumed, there is a reasonable probability that the result of...

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