text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bruce JONES, Defendant-Appellant.
    No. 15-1792
    United States Court of Appeals, Seventh Circuit.
    Argued September 8, 2016
    Decided December 21, 2016

      Brian L. Reitz, Bradley P. Shepard, Bob Wood, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.
    Sarah O’Rourke Schrup, Attorney, Northwestern University School of Law, Bluhm Legal Clinic, Chicago, IL, for Defendant-Appellant.
    Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

This appeal in a criminal case presents an unusual combination of offenses: health care fraud and unlawful possession of firearms and ammunition. Defendant Bruce Jones was both a family counselor and a firearms enthusiast who collected dozens of guns and thousands of rounds of ammunition. Jones had a prior felony conviction, so it was a federal crime for him to possess firearms and ammunition. The FBI discovered these weapons while investigating Jones for allegedly fraudulent health care billing. A federal grand jury charged Jones with three counts of possessing firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) and one count of health care fraud in violation of 18 U.S.C. § 1347. The district court bifurcated the case for separate trials on the firearms charges and the health care fraud charge. The juries convicted Jones on all counts. The district court sentenced Jones to 90 months in prison on his fraud conviction and 100 months on each felon-in-possession conviction, with all terms to be served concurrently.

Jones appeals and raises four distinct issues. First, he contends that the ex parte pretrial restraint of certain life insurance policies violated his Fifth and Sixth Amendment rights. Second, he argues that the district court erroneously denied his request for new counsel during his fraud trial. 'Third, he contends that he was-denied the opportunity to testify at his fraud trial. Fourth, he challenges the court’s sentencing guideline computation. We affirm in all respects.

I. Pretrial Restraint of Assets

Jones first challenges the pretrial restraint of six life insurance policies titled in his name. The government listed these policies in a forfeiture ■ allegation in the controlling, second superseding indictment. On April 15, 2014, following Jones’s conviction on the felon-in-possession charges but before his fraud trial, the government filed an ex parte application under 28 U.S.C. § 2461(c) and 21 U.S.C. § 853(e)(1)(A) to restrain those policies in anticipation of post-conviction forfeiture. The district court entered a restraining order that same day. Jones contends that the pretrial restraint violated his Sixth Amendment right to hire counsel of choice and his Fifth Amendment right to due process of law.

Ordinarily, we. review de novo questions of constitutional law. See Anderson v. Milwaukee County, 433 F.3d 975, 978 (7th Cfe 2006). But there is a wrinkle here: Jones did not object at the time that his life insurance policies were restrained. Nor did he raise an objection at any point during the district court proceedings even though the restraining order invited him to “petition for a pre-trial hearing if he can demonstrate that he has no other assets available with which to retain counsel” or if he could show that the restrained policies were “not subject to forfeiture.” Where a defendant fails to lodge a timely objection before the district court, we review only for plain error, assuming the defendant has not actually waived the point. See United States v. Bickart, 825 F.3d 832, 837 (7th Cir. 2016) (“To demonstrate plain error, defendants must show: (1) an error or defect, (2) that is clear or obvious,' (3) affecting the defendants’ substantial rights. Even then, we have discretion to correct the error if it seriously impugns the fairness, integrity, or public reputation of the judicial proceedings, but we need not do so.”) (citations omitted).

To excuse his failure to raise this issue in the district court, Jones argues that the legal landscape shifted while his appeal was pending, creating an analytical path that was not available to him in 2014. Specifically, Jones points to Luis v. United States, 578 U.S. -, 136 S.Ct. 1083, 194 L.Ed.2d 256 (2016). In Luis, the Supreme Court held that the “pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.” Id. at 1088 (plurality opinion) (emphasis added); see also id. at 1096 (Thomas, J., concurring in the judgment) (agreeing with plurality that a “pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice”). In so holding, the plurality distinguished two earlier cases in which the Court had found no Sixth Amendment defect in forfeiture proceedings. Id.' at 1090-91 (plurality opinion). Compare Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) (post-conviction forfeiture that deprived defendant of funds he would have used to pay attorney did not violate Sixth Amendment because, pursuant to statute, title to funds vested in United States upon defendant’s commission of crime), with United States v. Monsanto, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (pretrial restraint that deprived defendant of tainted assets traceable to crime likewise did not violate Sixth Amendment).

In Luis, unlike Caplin & Drysdale and Monsanto, the restraining order prevented the defendant from using her own wutaint-ed funds to hire counsel. Luis, 136 S.Ct. at 1090 (plurality opinion). The government’s interest in Luis’s untainted funds was similar to that of an unsecured creditor, who “someday might collect from a debtor’s general assets” but “cannot be said to have any present claim to, or interest in, the debtor’s property.” Id. at 1092. Citing Luis, Jones argues that the government now bears the burden to demonstrate at the outset that the assets it wants to restrain are tainted.

Jones may read Luis too expansively. Luis says nothing about timing or burden shifting. On the contrary, the government in that case conceded that the district court had restrained untainted funds. Id. at 1088. But even assuming without deciding that Jones’s interpretation of Luis is correct, that case would have offered Jones at best an additional line of attack on the district court’s restraining order. Under long-settled circuit law, the pretrial restraint of a defendant’s assets “without affording the defendant an immediate, postrestraint, adversary hearing at which the government is required to prove the likelihood that the restrained assets are subject to forfeiture violates the due process clause to the extent that it actually impinges on the defendant’s qualified sixth amendment right to counsel of choice.” United States v. Moya-Gomez, 860 F.2d 706, 781 (7th Cir. 1988). If the district court finds that the defendant has insufficient alternative assets with which to pay counsel, but the government fails to justify its retention of all the frozen assets, “then the court must order the release of funds in an amount necessary to pay reasonable attorneys’ fees for counsel of sufficient skill and experience to handle the particular case.” Id. at 730.

Assuming that Jones’s life insurance policies were not tainted by his fraud, and assuming further that he genuinely needed those assets to retain counsel, we cannot understand why he failed to invoke his right to an immediate hearing under Moya-Gomez. Conversely, if the life insurance policies were tainted, or if Jones had sufficient alternativé assets available to him, then Luis would not have strengthened his litigating position. Either way, we find no plain error.

In addition to a due process argument under Moya-Gomez, Jones could have presented a statutory argument based on the language of 21 U.S.C. § 853(e). The overwhelming majority of courts to consider the question have held that § 853(e) “conveys Congress’s intent to authojdze the restraint of tainted assets prior to trial, but not the restraint of substitute assets.” United States v. Parrett, 530 F.3d 422, 431 (6th Cir. 2008); see also, e.g., United States v. Jarvis, 499 F.3d 1196, 1204 (10th Cir. 2007) (“[A]ll but one federal court of appeals to address the issue has determined the legislative silence regarding substitute property in § 853(e) precludes pre-conviction restraint of substitute property.”).

Jones points out that the government’s ex parte motion asserted there was probable cause to believe that his life insurance premiums and contributions “constitute or derived from proceeds obtained ‘from the health care fraud, or represent a substitute asset, and are therefore subject to forfeiture.” Jones also notes that the government cited In re Billman, 915 F.2d 916, 921 (4th Cir. 1990), which held that a similar forfeiture statute, 18 U.S.C. § 1963, authorizes pretrial restraint of substitute assets. But we have never held as much. No controlling precedent barred Jones from asking the district court to construe § 853(e) as applying only to tainted assets, an argument that at least one district court in this circuit has accepted. See United States v. Toran, No. 13-30072, 2015 WL 1968698, at *7 (C.D. Ill. May 1, 2015).

Thus, Jones could have advanced a constitutional argument, a statutory argument, or both in response to the restraining order. Any one of these approaches could have delivered the same relief hé believes he might have obtained under Luis. Jones forfeited his challenge to the restraining order by failing to object in the district court, so we review that order only for plain error.

We find no plain error. Nothing in the record tends to show that the life insurance policies were not tainted by Jones’s fraud. Further, it is unclear whether Jones even needed the life insurance policies to retain counsel. A presentence investigation report prepared in December 2013 estimated Jones’s net worth (exclusive of the insurance policies) at over half a’ million dollars. Granted, most of that net worth was attributable to real estate, and the government apparently filed notices of lis pendens against some of Jones’s properties. But a Ms pendens notice does not deprive real estate of all marketable value; it simply places successors in interest on notice of a potential competing claim. Further, it appears that at least two of the Ms pendens notices were lifted in August 2014, well in advance of Jones’s fraud trial.

In any event, because Jones never objected to the restraint on his life insurance policies, the district court had no reason to probe these matters in an evidentiary hearing. The district court committed no plain error by entering the pretrial restraining order, which invited Jones to challenge it promptly if he thought there were grounds to do so. Having failed to do so, Jones is not entitled to relief based on his first argument.

II. Request for Substitute Counsel

Jones next argues that the district court improperly denied his request for new counsel during his fraud trial, which was the second of the two. He had an opportunity to explain his reasons for requesting substitute counsel, so we review the district court’s denial for abuse of discretion. United States v. Harris, 394 F.3d 543, 551 (7th Cir. 2005). We consider such factors as the timeliness of the defendant’s motion, the adequacy of the district court’s inquiry into the motion, and whether the conflict resulted in a total lack of communication preventing an adequate defense. Id. at 552. No single factor is dispos-itive. If we find an abuse of discretion, we may nevertheless uphold the district court’s decision “unless the defendant establishes that he was deprived of his Sixth Amendment right to effective assistance of counsel.” United States v. Bjorkman, 270 F.3d 482, 500 (7th Cir. 2001).

The record shows that Jones had a rocky relationship with his appointed attorney, Mark Inman, who is an experienced criminal defense lawyer in 'federal cases. Despite that rocky relationship, we conclude that the district judge did not abuse her discretion in denying Jones’s request for substitute counsel. We do not reach the separate question whether Jones’s Sixth Amendment right was compromised.

Turning to the three factors identified in Harris, we consider first the timeliness of Jones’s request. Jones asked for a new lawyer three weeks before his fraud trial was scheduled to begin. Three weeks is not much time to prepare for such a trial. We assume that if the district court had appointed a new lawyer an immediate request for a continuance would have been expected. Even so, we have previously recognized that requests for new counsel submitted several weeks before a critical proceeding may be timely under the circumstances. Compare United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 1992) (request made one month before trial did not “represent! ] a tactic to secure a continuance on the eve of trial”), and United States v. Ryals, 512 F.3d 416, 419 (7th Cir. 2008) (request three weeks before sentencing hearing was timely, particularly where breakdown in communication between attorney and client did not occur until after trial), with United States v. Hall, 35 F.3d 310, 313-14 (7th Cir. 1994) (request after defendant pled guilty and just ten days before sentencing hearing appeared to be an “effort to derail the sentencing that was fast approaching”), and United States v. Burgos, 539 F.3d 641, 646 (7th Cir. 2008) (request on morning of trial came too late).

The second factor—adequacy of the inquiry—weighs in the government’s favor. After receiving Jones’s letter, the district judge referred the matter to a magistrate judge for a hearing. During that hearing, the magistrate judge gave Jones an opportunity to explain his concerns. The magistrate judge also heard from attorney In-man and from the government. In denying Jones’s request, the magistrate judge explained that Jones’s dispute with his lawyer primarily concerned trial strategy and that such disputes are insufficient grounds for replacement of appointed counsel. Jones renewed his request a week later. The district judge held an ex parte session in which Jones explained his complaints about Inman. At the end of the session, the judge denied Jones’s renewed request. After the fraud trial but before sentencing, Jones asked once more for a new lawyer. The district judge delegated the request to a different magistrate judge who heard from both Jones and Inman in a January 20Í5 hearing. The magistrate judge denied Jones’s third request, noting that he found Inman’s representations “entirely credible” and that Jones failed to demonstrate either deficient representation or prejudice.

While Jones may disagree with the judges’ conclusions, he had ample opportunity to present his concerns to the district court. In this respect, Jones’s case is unlike cases where we have found insufficient inquiries into requests for substitute counsel. See, e.g., Ryals, 512 F.3d at 419-20 (inquiry insufficient where judge asked attorney just two questions and attorney said unequivocally that he could not represent defendant adequately at sentencing); Zillges, 978 F.2d at 371-72 (inquiry insufficient where judge ignored defendant’s letter until morning of trial and then failed to ascertain why defendant was unhappy with attorney); United States v. Morrison, 946 F.2d 484, 498-99 (7th Cir. 1991) (inquiry insufficient where judge denied defendant’s motion without holding a hearing). Here, the district judge and the two magistrate judges “listened to [defendant’s] concerns, and responded thoughtfully and appropriately.” Bjorkman, 270 F.3d at 501. The inquiry was adequate here.

The third .factor, the nature of the conflict between attorney and, client, gives us pause. Jones points to two defects in his relationship, with Inman: (1) a breakdown in their communication, and (2) a series of incidents in which Inman portrayed Jones in a negative light to the court.

As to the communication breakdown, Jones identifies letters that he sent Inman during the months leading up to trial. These letters show that Jones was not satisfied with the attention he was receiving. On September 24, for instance, Jones complained that Inman had visited him just four times during a six-month period, while on October 9, he wrote that Inman’s “ten minute visit” that day was not what Inman had promised. Wé hesitate to place too much importance on Jones’s letters, which show that Jones harbored unrealistic expectations about his attorney’s obligations. For example, in the September 24 letter, Jones directed Inman to answer “immediately” twenty-seven written questions. He.made similar demands on October 3 and again on October 9. Jones also referred to a fourteen-page letter that apparently contained directions for Inman to follow. While an attorney “undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy,” Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (citation omitted), the.attorney also has the “full authority to manage the conduct of the trial” and need not consult with the client on “every tactical decision,” Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). It is difficult on the face of this record to determine whether the conflict between Inman and Jones at that point involved-a true breakdown , in communication or simply a mismatch of expectations.

By the time of trial, however, the relationship between the two had grown quite strained. Inman made a series of remarks to the court that reflected his frustration with his client. At a hearing on October 20, Jones complained to the court that Inman had “never gone over the defense” with him. Inman disagreed, telling the judge that Jones’s statement was “just not true” and adding that Jones was “incapable of telling the. truth.” On October 27, Jones told the court that Inman had said he would face a consecutive sentence if he testified. Inman again disagreed, saying that Jones “can’t tell ... the truth.” At a hearing during the sentencing phase, In-man recounted Jones’s conduct during his first trial, saying that Jones had “faked a heart attack!’ and “concocted a defense.” Such statements, accurate though , they were, .obviously cast doubt on the viability of the attorney-client relationship.

These matters are left to the sound discretion of the district judge, however, because she was much closer to the friction between client and attorney and to its larger context in the case. Despite the obvious tension between Inman and Jones, we find no abuse of discretion here. The record shows that Jones had engaged in a prolonged pattern of obstructionist behavior. Against that backdrop, the district judge could reasonably have inferred that Jones’s request for a new lawyer was yet another attempt to delay justice. In fact, prior to Inman’s appointment as his lawyer, Jones had cycled through three other attorneys or legal teams during just the adversarial stage of the proceedings. He had also requested multiple delays for the first trial, on the firearms charges. Then, on the morning trial was set to. begin, Jones failed to appear. He had taken a cocktail of medications that caused him to lose consciousness. The scheduled trial had to be delayed again.

At Jones’s first sentencing hearing, in imposing a two-level enhancement for obstruction, the district judge said that Jones, a certified addiction specialist, was “very much familiar with the effects of the cocktail of medications that he consumed: sleeping pills, muscle relaxer, and benzo-diazepine. And even a lay person would know that taking that combination would make you incapacitated the morning of your jury trial.” Later, in denying Jones’s request for a new lawyer, the district judge linked her decision to Jones’s long pattern of obstructionist behavior:

The Court has considered the timeliness of Defendant’s eleventh hour request to change CJA counsel, the extent of any conflict or breakdown in communication between lawyer and client[] (including the client’s responsibility for any conflict), the number of attorneys who have been assigned to this Defendant, and the pattern of engaging in intentional delay and manipulation by the Defendant. The Court finds that the interest of justice does not dictate a substitution of counsel....

Given the history of the case, including Jones’s pattern of delay and obstruction, the district judge did not abuse her discretion in denying Jones’s request for appointment of yet 'another lawyer.

III. Waiver of the Right to Testify

Moving on to the fraud trial itself, Jones argues that the district court deprived him of his right to testify on his own behalf. Whether a defendant’s right to testify has been infringed is a mixed question of law and fact that we review de novo, though we review the district court’s underlying factual findings for clear error. United States v. Stark, 507 F.3d 512, 516 (7th Cir. 2007).

A few constitutional rights of the accused are so fundamental that they are deemed personal to the accused, and “he alone may decide whether these rights will be exercised or waived.” United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir. 1984). These rights include the decisions whether to plead guilty or proceed to trial; whether to be tried by judge or jury; whether to appeal an adverse verdict; whether to forgo the assistance of counsel; and, as relevant here, whether to testify. Id.

Jones says that he never clearly and unequivocally waived his right to testify. He adds that he “repeatedly affirmed to the district court that he wanted to testify” but that attorney Inman “refused to let him testify, preventing him from exercising this- constitutionally guaranteed right.” Based on our review of the record, we disagree. The district judge correctly found that Jones waived his right to testify. The judge engaged in three colloquies with Jones on the subject. While Jones’s responses during the first two colloquies were ambiguous, his third response was an unequivocal waiver.

On the second day of trial, shortly after the government rested, the judge asked defense attorney Inman whether he planned to present any evidence. Inman said no. The judge then asked Jones whether he wished to testify. Jones’s answer was ambiguous: he said that Inman would not ask him any of the questions that he had prepared, “so it would do no good.” Inman said that he was “well within [his] ethical and professional obligations in making this call,” but the district judge stated that it was still up to Jones whether he wished to testify. Even in a situation where a criminal defense lawyer suspects that his client might testify untruthfully, the lawyer cannot simply bar his client from testifying on his own behalf.

The judge next conducted an ex parte colloquy during which Jones’s response was again ambiguous:

THE COURT: Mr. Inman ... can’t ask you any questions that would elicit what he believes would be perjurious testimony-
THE DEFENDANT: I wouldn’t—I wouldn’t expect him to, but I see that he’s not going to do it, so I have no choice but to stand down.
THE COURT: And take your attorney’s advice, which is fine, okay? I just need to feel confident that—
INMAN: Your Honor, I think with that, we’re prepared to go forward.
THE COURT: Okay. Okay.
THE DEFENDANT: But I wasn’t lying, nor would I lie. Thank you, Your Honor.

This ambiguous exchange did not resolve the matter. Later that afternoon, the district judge inquired again and got another ambiguous answer:

THE COURT: Now, your lawyer has strongly stated that he does not believe it would be to your benefit, tactically and strategically, to testify, but you’ve got to tell me that you agree with that.
THE DEFENDANT: But, Your Honor, the issue I have is, I can’t testify if I— we haven’t gone over any questions. I ‘mean, there’s a lot of things that could be—
THE COURT: Well, you don’t necessarily have to go over any questions. Your lawyer .., knows what questions to ask.
THE DEFENDANT: Your Honor, I bow to your—I mean, you’re the boss. I respect you and I respect your position.
THE COURT: All right.
THE DEFENDANT: Thank you, ma’am.
THE COURT: And I respect your position, also, okay? So you’re going to concede to the advice of your counsel and not testify....
INMAN: Thank you, Your Honor.

Those first two colloquies were not sufficient to show that Jones himself was personally waiving his right to testify. If, the judge had not tried a third time, Jones’s argument on appeal would have considerably greater force. But the judge wisely inquired again on the final morning of trial:

THE COURT: First of all, Mr. Inman ... the Court needs to be comfortable that your client is comfortable with his waiver of his right to testify. And you’ve talked with him about that?
INMAN: We have, Your Honor, We’ve talked this morning,
THE COURT: And, Dr. Jones, are you comfortable with your decision?
THE DEFENDANT: Yes.

Against the background of the two earlier discussions, Jones’s unqualified “yes” answer during the third colloquy was an unequivocal waiver of his right to testify. It is helpful to contrast those rare cases in which we have found invalid waivers. For example, in Ward v. Sternes, 334 F.3d 696, 700 (7th Cir. 2003), the defendant answered the court’s question whether he agreed that it was a good decision not to testify by stating: “I guess. I don’t know.” That ambiguous response was all the less reliable because the defendant suffered from aphasia, a condition that manifested in a disconnect between questions asked and answers received. Id. at 698. And in Ortega v. O’Leary, 843 F.2d 258, 260 (7th Cir. 1988), the defendant twice interrupted the proceedings and expressed his desire to testify. The trial judge ordered the defendant to remain silent. On further inquiry, defense counsel stated that a “joint decision had been made” that the defendant would not testify. Id. The defendant protested, but the court treated the evidence as closed and allowed the case to proceed to closing arguments.

This case is readily distinguishable from Ward and Ortega. Unlike Ward, there is no evidence in this record tending to show that Jones suffered from, any physical or mental impairment that might have compromised his waiver. Unlike Ortega, the district judge here made clear that the decision whether to testify was ultimately up to Jones, and she asked three times to ensure that his waiver was knowing and voluntary. And unlike both Ward and Ortega, Jones’s answer during the final colloquy—a simple “yes”—was clear. See Ward, 334 F.3d at 707 (“direct, unequivocal answer to a- trial court’s colloquy will suffice to find a knowing, intelligent waiver”). Given the choice, Jones elected not to testify at his fraud trial. Apprised of his constitutional right; he waived it.

IV. Sentencing Guidelines Calculation

Finally, Jones contends that the district court miscalculated the sentencing guideline range for his firearms offenses by improperly taking account of his 1985 felony conviction for a controlled substance offense. We review de novo the district court’s legal interpretations of the Sentencing Guidelines, though we review its factual findings for clear error. United States v. Saunders, 826 F.3d 363, 372 (7th Cir. 2016).

In applying the Guidelines for Jones’s fraud conviction, the district judge computed a base offense level of six with, a ten-level enhancement for the loss amount and a two-level enhancement for abuse of trust, resulting in an adjusted offense level of 18. In applying the Guidelines for Jones’s felon-in-possession convictions, although the base offense level would ordinarily be 14, the district judge used a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). That section provides for an enhancement where the “defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” The judge added six levels for the number of firearms involved in the offense and two levels for obstruction of justice, resulting in an adjusted offense level of 28. The judge used this second adjusted offense level as the combined adjusted offense level for both offense groups. With three criminal history points, Jones was in criminal history category II, which resulted in a guideline range of 87 to 108 months in prison. The judge ultimately sentenced Jones to 90 months on the fraud count and 100 months on each felon-in-possession count, all terms to be served concurrently.

Jones argues that the district judge should have disregarded his 1985 conviction. Under U.S.S.G. § 2K2.1 cmt. n.10 and §§ 4A1.1 and 4A1.2, there is a fifteen-year lookback period for prior felony convictions. See § 4A1.2(e)(l) (“Any prior'sentence of imprisonment exceeding one'year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.”). Because Jones was released from state custody in October 1988, the “instant offense” must have commenced no later .than October 2003 to bring the prior conviction within its scope. Yet the controlling indictment charged that Jones possessed firearms and ammunition between March and June 2010, over 21 years after he was released from state custody.

While the indictment charged only conduct occurring in 2010, the evidence introduced at trial showed that Jones possessed weapons and ammunition much earlier. For instance, the government introduced a 1996 prenuptial agreement signed by Jones and Larissa Coroban, his then-fíancée. The document described Jones’s assets as including fifteen pistols, nine' shotguns, and fourteen rifles. The government also introduced a document drafted by Jones in 2001 titled “Transfer, Receipt, and Agreement of Firearms.” Through this document, Jones purported to transfer to Ms. Coroban certain weapons that a friend had been holding on his behalf. Jones implied that he had owned these weapons since before his 1985 conviction; he said that he was advised to “write this up so no one would make trouble over [his] owning them.” He also asked Ms. Coroban not to sell three of the guns until after his death, a detail that the district judge later highlighted as evidence of possession.

Additional evidence supports an inference that Jones continuously possessed firearms from at least 1996 (and likely much earlier) up through and including the charged period. For example, the government introduced a “Financial Balance Sheet” that Jones apparently- drafted in April 2009. It valued Jones’s “Gun Collection/Ammo” at that time at $35,000. The government also introduced a 2009 e-mail in which Jones told his brother about his large gun collection. During the FBI investigation in 2010, agents recovered dozens of weapons and thousands of rounds of ammunition from Jones’s residence, his treatment lodge, and his cabin in Roundup, Montana. The evidence seized at the Montana cabin was especially inculpatory, as Ms. Coroban testified that she had never visited the cabin. Two of the guns recovered from the cabin were listed on an inventory sheet that investigators also seized: that sheet listed appraisal values .dating to 1983. A Colt .45 caliber “Gold Cup” pistol recovered from Jones’s treatment lodge in Indiana matched the description of a gun Jones testified that he carried in the 1970s.

In light of all this evidence, the district judge found an “ongoing series of weapon possession by a prohibited person.” She added that Jones’s “possession and acquirement of his massive gun collection ... took place over decades.” These findings are not clearly erroneous. Jones continuously possessed weapons beginning no later than 1996 and probably much earlier. Thus, while the indictment charged unlawful possession in 2010, the continuous course • of conduct giving rise to the charges began within the fifteen-year period following Jones’s release from state custody, Under the terms of U.S.S.G. §§ 2K2.1(a)(4)(A) and 4A1.2(e)(l), the district court properly used Jones’s 1985 conviction to enhance his base offense level on the felon-in-póssession counts.

Alternatively, Jones’s possession of firearms outside the indictment window could be characterized as relevant conduct for guideline purposes. Application note 8 to § 4A1.2 teaches that the “commencement of the instant offense” for purposes of calculating the fifteen-year look-back period' includes relevant conduct as defined in § 1B1.3. That section in turn defines relevant conduct to include acts or omissions that were “part of the same course of conduct or common scheme or plan as the offense of conviction.” § lB1.3(a)(2). “Offenses are part of the same course of conduct if they are ‘part of a single episode, spree, or ongoing series of offenses.’ ” United States v. Ortiz, 431 F.3d 1035, 1040 (7th Cir. 2005) (citation omitted). We consider whether there is a “strong relationship between the uncharged conduct and the convicted offense, focusing on whether the government has demonstrated a significant ‘similarity, regularity, and temporal proximity [between] the uncharged acts and the offense of conviction.’ ” United States v. Acosta, 85 F.3d 275, 281 (7th Cir. 1996) (alteration in original) (citation omitted).

The similarity factor is plainly satisfied in this case. The uncharged conduct (possession of firearms by a prohibited person) was identical to the charged conduct. Given the district court’s reasonable finding that Jones possessed firearms continuously from at least 1996 forward, the regularity and proximity factors are satisfied as well.

Jones' argues that his prior possession of weapons cannot constitute relevant' conduct under the Sentencing Guidelines because of the bar on double-counting. See U.S.S.G. § 1B1.3 cmt. background (“Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.”) (emphasis added). This argument is a nonstarter. Section § 922(g)(1) simply prohibits felons from possessing firearms and ammunition, period; duration is not an element of the offense. But at the sentencing stage, it is appropriate for the sentencing judge to consider the length of time over which the defendant violated the prohibition. Other things being equal, a felon who possesses a weapon for a fleeting moment is less culpable than one who possesses many weapons continuously for many years.

Jones also argues that uncharged conduct must be “separate and/or iterative” to qualify as relevant conduct under U.S.S.G. § 1B1.3. In support of his argument, Jones cites several cases addressing episodic or transactional crimes. See United States v. Sumner, 325 F.3d 884 (7th Cir. 2003) (drug dealing); United States v. Spry, 190 F.3d 829 (7th Cir. 1999) (drug dealing); United States v. Powell, 124 F.3d 655 (5th Cir. 1997) (tax evasion). These episodic crimes by their very nature involve separate (if similar) episodes. But 18 U.S.C. § 922(g)(1) defines a status-based crime— passive conduct that by its nature is often continuous, not episodic or iterative. Nothing in § 1B1.3 leads us to believe that the Sentencing Commission intended to exclude status-based offenses from the relevant conduct provisions. On the contrary, by taking into consideration the length of time that a defendant possesses weapons in violation of federal law; a sentencing judge furthers the goal of the relevant conduct Guideline—i.e., “taking into account all germane uncharged conduct demonstrating the seriousness of the offense conduct.” United States v. Nance, 611 F.3d 409, 417 (7th Cir. 2010).

In the end, whether viewed as relevant conduct or simply as a part of the offense conduct, Jones’s continuous possession of firearms starting in 1996 or earlier brings his 1985 conviction within the fifteen-year lookback period. The district, court properly used that conviction to increase the base offense level for Jones’s felon-in-possession counts. We find no error in the resulting guideline computation.

Jones’s convictions and sentences are AFFIRMED.

      . Jones argues that a post-restraint hearing is insufficient and that he should have been afforded a hearing prior to the restraint on his property. We have twice declined to decide whether a pre-deprivation hearing is necessary in this context, see United States v. Phillips, 434 F.3d 913, 916 (7th Cir, 2005) (per curiam); United States v. Kirschenbaum, 156 F.3d 784, 793 (7th Cir. 1998), and the Supreme Court has likewise declined to decide the question, see Monsanto, 491 U.S. at 615 n.10, 109 S.Ct. 2657. We again decline to consider the question here. As explained below, Jones has not shown a bona fide need for the restrained assets. Thus, as in Phillips, this case presents an “inadequate vehicle by which to consider the issue,” 434 F.3d at 916.

      . It is also unclear whether Jones could have simply liquidated those policies at will.

      . The conflict between a criminal defense attorney and an accused who the attorney knows intends to testify falsely poses one of the oldest and most intractable problems in professional ethics. Indiana Rule of Professional Conduct 3.3, which applies in the Southern District of Indiana, addresses the problem. The comment to the rule suggests some solutions, including allowing the client to testify in narrative form, but does not provide guidance that is clear in all scenarios.

      , Although the parties disagree about exactly which guideline range would have applied if the district judge had excluded the 1985 conviction from her computation, any range would have been significantly lower than the one used. With a base offense level of 14 instead of 20 and criminal history category I—assuming the same enhancements for firearm quantity and obstruction of justice— Jones's guideline range for his firearms offenses would have been 41 to 51 months in prison, less than half the range that the district judge used.


source: Caselaw Access Project

author: EASTERBROOK, Circuit Judge.

license: Public Domain

text:
    TEAMSTERS LOCAL UNION NO. 727 HEALTH AND WELFARE FUND, Teamsters Local Union No. 727 Pension Fund, and Teamsters Local Union No. 727 Legal and Educational Assistance Fund, Plaintiffs-Appellees, v. L & R GROUP OF COMPANIES, Defendant-Appellant.
    No. 16-2037
    United States Court of Appeals, Seventh Circuit.
    Argued December 2, 2016.
    Decided December 21, 2016

      Linda Marie Martin, Attorney, Willig, Williams & Davidson, Philadelphia, PA, William M. Tasch, Attorney, Illinois Advocates, LLC, Chicago, IL, for Plaintiffs-Appellees.
    Stacey Alan Campbell, Attorney, Campbell Litigation, P.C., Denver, CO, Philip S. Holloway, Attorney, Ford & Harrison LLP, Chicago, IL, for Defendant-Appellant.
    Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
   EASTERBROOK, Circuit Judge.

Three pension and welfare funds regulated by the Multiemployer Pension Plan Amendments Act (MPPAA), which is codified as part of the Employee Retirement Income Security Act (ERISA), filed this suit to collect what they described as shortfalls in contributions due during 2003 through 2008 from System Parking, Inc., which had entered into four collective bargaining agreements with Teamsters Local 727. But the funds did not sue System Parking. Instead they sued “L & R Group of Compames.” The answer to the complaint also used that name, as did the district court’s judgment. The mismatch between the litigant and the name of the business obligated to make contributions led us to call for supplemental briefs, which reveal that there is no such thing as “L & R Group of Companies.” This poses two problems under Fed. R. Civ. P. 17. Rule 17(a) says that suits must be conduct-, ed in the name of the real parties in interest, and Rule 17(b) says that only persons or entities with the capacity to sue or be sued may be litigants.

The odd name “L & R Group of Companies”, which the opening brief on appeal described as “not a corporation” with no further detail, led us to wonder whether it might be a partnership, a holding company organized as a trust, or perhaps a membership organization. But the supplemental briefs reveal that it is none of these. Counsel for appellant, while styling their client as “L & R Group of Companies”, state variously that it is “a description that refers to a series of business entities” or a “rubric” that several companies use in their business. But a “description” or a “rubric” is not a juridical entity. See, e.g., Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) (the name of a magazine is not suable). Rule 17(a) says that litigation must proceed in the name of the real party in interest, and a “rubric” is not any kind of entity. You can’t sue a “rubric” any more than you could sue the Chicago River or the Magnificent Mile as a proxy for the City of Chicago. The judgment in this case directs “L & R Group of Companies” to pay almost $2 million, but a rubric does not have a bank account.

The supplemental briefs reveal the identity of the proper defendant. System Parking, Inc., changed its name to LR Sys, Inc., in November 2010, The next month all of-its assets and liabilities were acquired by LR System Parking—Illinois, LLC (LR System Parking for short). Because' this entity was not named in the complaint or served with' process, a motion to dismiss the complaint would have been granted under Schiavone, though the funds might have had time to sue.it before the statute of limitations expired. But no one paid any. attention to this subject in the district court, and even now LR System Parking has not asked us to remand with instructions to dismiss, Nor has it suggested that the funds should be stuck with an uncollectable judgment. Still, we cannot continue the litigation against a rubric, so.the question becomes whether this problem can be fixed in the court of appeals.

We think that the answer is yes, using the power granted by Fed. R. Civ. P. 21 to add or drop a party in lieu of dismissing the suit. Cf. 28 U.S.C. § 1653. Rule 21 nominally applies only to district courts, but Newman-Green v. Alfonzo-Larrain, 490 U.S. 826, 832-37, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989), holds that appellate courts may exercise the same power-—as the Supreme Court itself did in Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (1952). In Newman-Green the Justices held that a court of appeals may dismiss a surplus litigant whose presence prevented the existence of complete diversity of citizenship. Here we need a substitution—a real party in lieu of a rubric—but Mullaney shows that a court of appeals has that authority too, when the real party in interest does not object. Mul-laney allowed the addition of two litigants in the Supreme Court in order to avoid a problem with the original litigant’s standing to sue. Here all we need do is replace a name (L & R Group of Companies) with the real entity (LR System Parking) that everyone has taken the name to be a stand-in for. That’s within the bounds of the authority recognized by Newman-Green, so we need not send the case back to the district court for formalities that quickly would propel the dispute back here.

Thus we arrive at the merits, and the district court’s thorough opinion, 2016 WL 520998, 2016 U.S. Dist. LEXIS 16359 (N.D. Ill. Feb. 10, 2016), enables us to be brief. The judge held a bench trial, resolved ambiguities in the collective bargaining agreements, and considered two opposing audit reports—one conducted by a firm of auditors on behalf of the funds and showing that LR System Parking owed some $1.8 million (including late-payment penalties and interest) and the other conducted internally by LR System Parking and showing that the funds had been overpaid about $1.2 million. The judge concluded that: (1) the agreements require contributions for every hour workers are paid and not just for hours they work (so the employer owed contributions for paid vacation and sick-leave hours); (2) the auditor hired by the funds did not have a duty to offset overpayments when calculating underpayments (this was the only seriously contested issue about the quality of that audit); and (3) LR System Parking’s audit was unreliable. LR System Parking has abandoned its arguments on the choice between hours paid and hours worked, leaving only issues (2) and (3) for appellate resolution.

The funds’ auditor counted underpayments and ignored overpayments. LR System Parking says that this spoils the audit. The district judge, found otherwise, ruling that requiring the funds’ auditor to determine overpayments and offset them against underpayments would shift to the funds the burden of calculating and proving the amount of any overpayment. The trust documents assign that burden to employers. As the district judge saw things, the funds’ auditor was entitled to tally up the underpayments, while the employer’s auditor could tally overpayments and the court would do the offset. That makes sense and is certainly not an abuse of discretion.

This brings us to the district court’s decision that the employer’s audit was unreliable, so there was nothing to offset against the funds’ calculation. The judge gave three principal reasons (2016 WL 520998, at *18, 2016 U.S. Dist. LEXIS 16359 at *63-66): first, that the employer’s audit was done in-house rather than by an independent accounting firm; second, that the person who' prepared it lacked' any relevant experience; third, that LR System Parking relied on “murky” assumptions and did not try to explain why this audit differed from the funds’ professionally prepared audit. The judge summed up: “L & R litigated this issue by obfuscation.” The judge’s conclusion that the employer’s audit was unreliable is a finding of fact and thus must stand unless clearly erroneous. Fed. R. Civ. P. 52(a)(6). We see no clear error in this finding. On this record the judge might well have accepted the employer’s calculation, but the evidence did not compel him to do so.

The judgment is affirmed, and the case is remanded with instructions to amend the judgment to specify LR System Parking—Illinois, LLC, as the defendant and the entity responsible for payment.


author: HAMILTON, Circuit Judge. MANION, Circuit Judge,

text:
    Charles MURPHY, Plaintiff-Appellee, v. Robert SMITH and Gregory Fulk, Defendants-Appellants.
    No. 15-3384
    United States Court of Appeals, Seventh Circuit.
    Argued November 3, 2016
    Decided December 21, 2016

      Fabian John Rosati, Attorney, Law Office of Fabian J. Rosati, Chicago, IL, for Plaintiff-Appellee.
    Mary Ellen Welsh, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellants.
    Before BAUER, MANION, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

Plaintiff Charles Murphy .was an inmate in the Vandalia Correctional .Center in Illinois. On July 25, 2011, correctional officers hit Murphy, fracturing part of his eye socket, and left him in a cell without medical attention. Murphy sued under 42 U.S.C. § 1983 and state-law theories. A jury awarded him damages on some of those claims, including some state-law claims, and the district court awarded attorney fees under 42 U.S.C. § 1988. Two of the defendants now appeal and challenge two aspects of the judgment. They argue that state-law sovereign immunity bars the state-law claims and that the Prison .Litigation Reform Act requires that 25 percent of the damage award be used to pay the attorney fee award.

We affirm on the sovereign immunity defense. The Illinois doctrine of sovereign immunity does not apply to state-law claims against a state official or employee who has violated statutory or constitutional law. See Leetaru v. Board of Trustees of University of Illinois, 392 Ill.Dec. 275, 32 N.E.3d 583 (Ill.2015). Murphy alleged and ultimately proved such violations here. On the attorney fee issue, however, we reverse. Under 42 U.S.C. § 1997e(d), the attorney fee award must first be satisfied from- up to 25 percent of the damage award, and the district court does not-have discretion to reduce -that maximum percentage. We remand for entry of a modified judgment.

I. Factual and Procedural Background

We recount the facts in the light reasonably most favorable to the verdict, which defendants do not challenge on the merits. On July 25, 2011, plaintiff Charles Murphy was a prisoner at the Vandalia Correctional Center. His assigned seat at mealtime that day had food and water on it. When he reported the mess, Correctional Officer Robert Smith first told him to clean it up himself and later told Murphy to leave the dining area. A different officer handcuffed Murphy, and Officer Smith escorted him to a segregation building. When they got there, a third officer asked Muiphy what unit he normally stayed.in, but Murphy ignored him. Officer Smith began moving his finger in and out of Murphy’s ear, while asking Murphy if he was deaf and repeating the phrase “you can’t hear, you can’t hear.” While this was happening, Lieutenant Gregory Fulk entered the building and saw what was happening. .

Now escorted by three officers, Murphy was taken further into the segregation unit. Murphy did not struggle with the officers as they walked, although he taunted Officer Smith, promising what would happen the next time he “ain’t got no handcuffs on.” Hearing that, Officer Smith hit Murphy in the eye and then applied a choke hold with his arm around Murphy’s throat. Murphy lost consciousness. When he came to, Lieutenant- Fulk and Officer Smith were pushing him into a cell. With his hands still cuffed behind his back, Murphy fell face-first into the cell and hit his head on its metal toilet. The officers took off his clothes and handcuffs and left without having checked his condition.

Thirty or forty minutes later, a nurse came to see Murphy, who was ultimately sent to a hospital. His orbital rim’—part of his eye socket—had been crushed and needed surgery. He had that surgery but did not recover completely. As of January 2015, his vision remained doubled and blurred.

In July 2012, Murphy filed suit in the Southern District of Illinois. After two rounds of complaint amendments and a partial grant of summary judgment for defendants, the case was tried to a jury. The jury found for plaintiff Murphy on four claims against two defendants—Lieutenant Fulk and Officer Smith, the appellants here. The jury found Officer Smith liable on two claims of state-law battery and one federal claim of unconstitutional use of force under the Eighth Amendment. The jury also found Lieutenant Fulk liable on a federal Eighth Amendment claim of deliberate indifference to a serious medical need. All told, the jury awarded $241,001 in compensatory and punitive damages against Officer- Smith and $168,750 against Lieutenant Fulk. The district court reduced the combined award to a total-of $307,733.82. That reduction is not at issue in this appeal. The district court also awarded attorney fees and ordered that 10 percent of the damages awarded be put toward paying those fees. Officer Smith and Lieutenant Fulk have appealed.

II. Sovereign Immunity

The defendants argue first that state-law sovereign immunity bars Murphy’s state-law claims. The district court found, and Murphy contends on appeal, that defendants waived their state-law sovereign immunity defense. We find no waiver but find that state-law sovereign immunity does not shield these defendants from liability.

A. Sovereign Immunity in Illinois

Illinois is protected against civil suits in federal court by two relevant doctrines. First, the “Eleventh Amendment immunizes unconsenting states from suit in federal court.” Benning v. Board of Regents of Regency Universities, 928 F.2d 775, 777 (7th Cir. 1991); see also Alden v. Maine, 527 U.S. 706, 712-13, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (explaining broader concept of sovereign immunity for which “‘Eleventh Amendment immunity ... is convenient shorthand’ ”). Second, an Illinois statute provides, with exceptions not relevant here, that “the State of Illinois shall not' be made a defendant or party in any court.” 745 Ill. Comp. Stat. 5/1. Under the Erie Railroad doctrine, that statute governs claims in federal court arising under state law. Benning, 928 F.2d at 777, citing Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). While both doctrines are often referred to as “sovereign immunity,” they are not the same. See, e.g., Beaulieu v. Vermont, 807 F.3d 478, 485-86 (2d Cir. 2015) (distinguishing between Eleventh Amendment immunity and broader state sovereign immunity under Vermont law). As we explain below, important differences between the federal and state doctrines are decisive in this case.

B. Waiver

Before addressing the merits of the state-law sovereign immunity defense, we first address plaintiff Murphy’s argument that defendants waived the defense. “[S]overeign immunity is a waivable affirmative defense.” Park v. Indiana University School of Dentistry, 692 F.3d 828, 830 (7th Cir. 2012) (Eleventh Amendment), citing Board of Regents of University of Wisconsin System v. Phoenix International Software, Inc., 653 F.3d 448, 463 (7th Cir. 2011); see also Lapides v. Board of Re gents of University System of Georgia, 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (state’s voluntary removal to federal court waived Eleventh Amendment immunity). If a state does not raise the immunity defense, “a court can ignore it.” Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Because the defendants never relied and still do not rely on Eleventh Amendment immunity, they waived that defense. See Park, 692 F.3d at 830 (finding waiver where the state “never once raised the issue ... before the district court” and declined to raise the issue “even when prompted by this court at argument”).

State-law sovereign immunity, however, is a defense the defendants raised at least five times: in their answer, in the final pre-trial conference, in the jury instruction conference, in the defendants’ post-trial motion, and on appeal. Those references were explicitly to state-law sovereign immunity. The answer, for example, claimed protection under “statutory sovereign immunity,” and in both the post-trial motion and the briefs before this court, the defendants relied on the Illinois State Lawsuit Immunity Act.

Plaintiff Murphy has not cited nor have we found any comparable case finding a waiver of a sovereign immunity defense. Cf. Board of Regents, 653 F.3d at 467 (finding waiver where state filed suit in federal district court); Hill v. Blind Industries & Services of Maryland, 179 F.3d 754, 756 (9th Cir. 1999) (finding waiver when defendant “participat[ed] in extensive pre-trial activities and wait[ed] until the first day of trial before objecting ... on Eleventh Amendment grounds”). Other circuits hold that equal or less robust efforts to raise the immunity defense do not waive it. See, e.g., Union Pacific Railroad Co. v. Louisiana Public Service Comm’n, 662 F.3d 336, 339-40 (5th Cir. 2011) (no waiver when defendant raised issue for first time on appeal, after prevailing on a motion for summary judgment on the .merits); Ashker v. California Dep’t of Corrections, 112 F.3d 392, 394 (9th Cir. 1997) (no waiver when defendants raised issue “in their answer and pretrial statement ... and ... in their briefs filed in this court”). We reach the same conclusion here.

Plaintiff Murphy relies on the defendants’ apparent willingness to defend this ease on the merits. See Neinast v. Texas, 217 F.3d 275, 279 (5th Cir. 2000) (“Courts have found waiver.... where the state ... evidenced an intent to defend the suit against it on the merits.”). But in this case the significance of that willingness is at best equivocal. Both the defendants and the district court seemed at times to blend the state-law immunity question with the merits of plaintiffs claims. For example, the district court said that sovereign immunity did not shield the defendants, because the jury, in ruling on the battery claim, necessarily determined that they acted outside their authority. Murphy v. Smith, No. 3:12-cv-00841-SCW, slip op. at 17-18 (S.D. Ill. Sept. 25, 2015).

That blending would be confusing under federal immunity law, whether under the Eleventh Amendment or doctrines of absolute immunity. As we explain below, though, the blending of state-law immunity and the merits under Illinois law accurately reflects state law. When a plaintiff sues a state official or employee, the Illinois case law links state-law immunity to the merits. If a plaintiff adequately alleges and ultimately proves that an Illinois official violated a statute or the Constitution,' Illinois courts hold that the immunity statute does not apply to claims against the individual official. Because of that linkage of immunity to the merits, the defense of the case on the merits is quite consistent with defendants’ assertion of state-law sovereign immunity.

C. Illinois Sovereign Immunity for Individual Employees

The Illinois sovereign immunity statute protects the State against being “made a defendant or party in any court.” 745 Ill. Comp. Stat. 5/1. Murphy argues that he has not sued the State of Illinois but only Illinois state' employees. Whether thé statute covers such state-law claims is a matter of state law. Oür role is to decide questions of state law as we predict the state supreme court would decide them. E.g., Rodas v. Seidlin, 656 F.3d 610, 626 (7th Cir. 2011) (“When interpreting state law, a federal court’s task is to determine how the state’s highest court would rule.”); Barger v. State of Indiana, 991 F.2d 394, 396 (7th Cir. 1993) (“State- courts are the final arbiters of state law.”).

Naming state employees as defendants would be too simple an evasion of the statute, which “cannot be evaded by making an action nominally one against the servants or agents of the State when the real- claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested.” Sass v. Kramer, 72 Ill.2d 485, 21 Ill.Dec. 528, 381 N.E.2d 975, 977 (1978). A substantial body of Illinois case law addresses when and under what circumstances the immunity statute applies to claims against state employees. See Benning, 928 F.2d at 779-80.

A claim against a state official or employee is a claim against the state when

“there are (1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment; and (3) where the complained-of actions involve matters ordinarily within that employee’s normal and official functions of the State.”

Healy v. Vaupel, 133 Ill.2d 295, 140 Ill. Dec. 368, 549 N.E.2d 1240, 1247 (1990), quoting Robb v. Sutton, 147 Ill.App.3d 710, 101 Ill.Dec. 85, 498 N.E.2d 267, 272 (1986). That analysis can be a difficult one, and the state cases guiding it have “not always been consistent.” Leetaru v. Board of Trustees of University of Illinois, 392 Ill. Dec. 275, 32 N.E.3d 583, 602 (Ill. 2015) (Burke, J., dissenting). Compare Healy, 139 Ill.Dec. 780, 549 N.E.2d at 313 (applying immunity in part because the “relationship between the plaintiff and the defendants would not have had a source outside the employment status of the defendants”), with Jinkins v. Lee, 209 Ill.2d 320, 282 Ill.Dec. 787, 807 N.E.2d 411, 420 (2004) (rejecting a “but-for” state employmént immunity analysis).

This case is governed by an important exception to sovereign immunity in suits against state officials or employees. If the plaintiff alleges that state officials or employees violated “statutory or constitutional law,” “[sjovereign immunity affords no protection.” Healy, 140 Ill.Dec. 368, 549 N.E.2d at 1247. “This exception is premised on the principle that while legal official acts of state officers are regarded as acts of the State itself, illegal acts performed by the officers are not.” Leetaru, 392 IllDec. 275, 32 N.E.3d at 596. That exception distinguishes Illinois’s sovereign immunity rule from federal law immunity doctrines, which usually apply to bar claims regardless of their potential merit. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 92-93, 120-21, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (reversing on Eleventh Amendment immunity grounds a judgment on the merits for plaintiffs).

Fritz v. Johnston, 209 Ill.2d 302, 282 Ill.Dec. 837, 807 N.E.2d 461 (2004), shows the Illinois exception in operation and shows how state-law immunity depends on the merits of the plaintiffs claims. In that case, the plaintiff alleged that state employees conspired to force him to retire from his own state job by falsely telling the police that he had been making threats. Plaintiff alleged civil conspiracy and intentional interference with employment. The Illinois Supreme Court reversed dismissal of the case, holding that sovereign immunity did not apply because the plaintiffs factual allegations matched the criminal offense of disorderly conduct. Id., 282 IllDec. 837, 807 N.E.2d at 467, citing 720 Ill. Comp. Stat. 5/26-1(a)(4) (West 1998).

This court’s Illinois sovereign immunity cases have acknowledged this exception to sovereign immunity but most often have found that the exception did not apply. See, e.g., Turpin v. Koropchak, 567 F.3d 880, 884 (7th Cir. 2009) (“Nothing in Turpin’s complaint alleges a violation of the State constitution or a statute, so this exception is off the table.”). In particular, Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001), cabined the exception. We noted that the plaintiff had alleged a constitutional violation, but we found that sovereign immunity applied nonetheless because the plaintiffs state-law claims were “not dependent on the alleged constitutional violation.” Id. at 442. Richman, however, preceded Fritz, which permitted state-law claims that did not depend on constitutional or statutory violations. Fritz, 282 Ill. Dec. 837, 807 N.E.2d at 467.

Richman also preceded Leetaru, which just last year reaffirmed the exception in broad terms,- over a dissent that would have narrowed it to a scope closer to the federal Ex parte Young doctrine. Leetaru, 392 Ill.Dec. 275, 32 N.E.3d at 611-12 (Burke, J., dissenting). Despite the force of the dissent, our role under Erie is to take the Leetaru majority opinion at its word: the exception applies whenever “agents of the State have acted in violatioh of statutory or constitutional law.” Id., 392 Ill.Dec. 275, 32 N.E.3d at 597 (majority opinion).

In this case, Murphy alleged and then proved that the defendants’ actions violated the United States Constitution. He also alleged and proved the factual elements of the Illinois criminal offense of aggravated battery. That statute requires (1) “a battery, other than by the discharge of a firearm,” and (2) that the defendant “knowingly ... [clauses great bodily harm.” 720 Ill. Comp. Stat. 5/12-3.05(a)(£) (West Supp. 2016) (effective July 1, 2011). Murphy alleged and proved to the jury that Officer Smith punched his face and head and choked him, then threw him into a cell with such force that he hit his face on a metal toilet. Officer Smith did so “without justification.” Cf. 720 Ill. Comp. Stat. 5/12-3(a) (West 2002) (defining criminal battery as contact “without legal justification”). Murphy suffered “serious and permanent injury” and required reconstructive surgery. Since Murphy alleged and proved that Smith and Fulk acted “in violation of statutory or constitutional law,” sovereign immunity does not bar his state-law claims. Fritz, 282 Ill.Dec. 837, 807 N.E.2d at 467, quoting Healy, 140 Ill.Dec. 368, 549 N.E.2d at 1247.

III. Attorney Fee

The Prison Litigation Reform Act sets limits on attorney fees awarded to prisoners who prevail in civil rights cases. 42 U.S.C. § 1997e(d), Whenever such a prisoner receives a monetary judgment, “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.” § 1997e(d)(2).

The district court interpreted that language to permit it to exercise its discretion in choosing the percentage of the damage award that should go toward the attorney fee, so long as the choice was no greater than 25 percent. The court allocated 10 percent of the damage award to satisfy the attorney fee award. That interpretation is consistent with decisions of other circuits, which allow such discretion. See Boesing v. Spiess, 540 F.3d 886, 892 (8th Cir. 2008) (“plain language of 42 U.S.C. § 1997e(d)(2) does not require the district court to automatically apply 25 percent of the judgment to pay attorney’s fees”); Parker v. Conway, 581 F.3d 198, 205 (3d Cir. 2009) (agreeing with Boesing).

We have read the statute differently. In Johnson v. Daley, 339 F.3d 582, 585 (7th Cir. 2003) (en banc), we explained that § 1997e(d)(2) required that “attorneys’ compensation come[ ] first from the damages.” “[O]nly if 25% of the award is inadequate to compensate counsel fully” does the defendant contribute more to the fees. Id. We continue to believe that is the most natural reading of the statutory text. We do not think, the statute.contemplated a discretionary decision by the district court. The statute neither uses discretionary language nor provides any guidance for such discretion.

Accordingly, we REMAND the case to the district court to modify its judgment to require Murphy to pay from the judgment the sum of $76,933.46 toward satisfying the attorney fee the court awarded. 'In all other respects the judgment is

AFFIRMED.

MANION, Circuit Judge,

concurring.

I join the court’s opinion. I write separately to address the scope of Illinois’ sovereign immunity defense for state employees sued in their individual capacities, which has been a difficult issue for the Illinois state courts. Because the plaintiff in this case prevailed on federal constitutional claims as well as state claims, only a small portion of the judgment is at stake in this appeal. Yet the case still presents an important issue of state law: to what extent Illinois’ State Lawsuit Immunity Act and the Court of Claims Act confínes intentional tort claims against state employees to the Illinois Court of Claims.

The State Lawsuit Immunity Act- prohibits the State of Illinois from- being named as a defendant in any court, with limited exceptions. 745 ILCS 5/1. One of those exceptions is the Court of Claims Act, which created that court as the “exclusive forum for resolving lawsuits against the state.” People ex rel. Manning v. Nickerson, 184 Ill.2d 245, 234 Ill.Dec. 375, 702 N.E.2d 1278, 1280 (1998) (internal quotation marks omitted). It provides in relevant part that, the Court of Claims has exclusive jurisdiction, over “[a]ll claims against the State for damages sounding in tort.” 705 ILCS 505/8(d). In effect, the State’s limited waiver of sovereign immunity gives it home-court advantage when it defends tort claims for damages. See Loman v. Freeman, 229 Ill.2d 104, 321 Ill.Dec. 724, 890 N.E.2d 446, 458 (2008) (no right to a jury trial in the Court of Claims); Reichert v. Court of Claims, 203 Ill.2d 257, 271 Ill.Dec. 916, 786 N.E.2d 174, 177 (2003) (no right to appeal the merits of a Court of Claims decision).

The dispositive question here is whether state-law portions of this suit (the battery claims) against the defendant prison guards are really “against the State” for the purposes of these statutes. The most natural reading of the statute seems to preclude any court other than the .Illinois Court of Claims from exercising jurisdiction over the plaintiffs intentional tort claim. Battery is a tort and the defendants here were acting in the scope of their state employment when they (according to the jury) battered the plaintiff. Had they not been doing so, the Illinois Attorney General’s office. would not have appeared on their behalf, as it did in the district court and in this court. 5 ILCS 350/2(a) & (e) (providing that the Illinois Attorney General will appear on behalf of a state employee sued for something “arising out of any act or omission occurring within the scope of the employee’s State employment” and indemnify. upon judgment against the employee in such cases). In every practical sense, this is a judgment that “could operate to control the 'actions of the State or subject it to liability.” Currie v. Lao, 148 Ill.2d 151, 592 N.E.2d 977, 592 N.E.2d 977, 980 (1992).

However, the Illinois Supreme Court has construed “against the State” more narrowly in suits against state employees. See, e.g., Leetaru v. Bd. of Trs., 392 Ill.Dec. 275, 32 N.E.3d 583, 596 (Ill. 2015); Loman, 321 Ill.Dec. 724, 890 N.E.2d at 462. That court would hold that the defendants here acted outside their authority and therefore that immunity does not apply. We are bound to follow that court’s holdings and reasoning. Therefore, I join the opinion of the court in full.

      . Like the parties, we rely on Eleventh Amendment case law to address waiver. This is our usual approach under the Erie doctrine because procedural issues are governed by federal law in federal courts, and waiver is generally treated as procedural. See Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1122-23 (7th Cir. 1998). Even if Illinois law governed the waiver issue, there would be no waiver. Illinois appears to permit sovereign immunity waivers only by statute, not by litigation conduct. See Township of Jubilee v. State, 355 Ill.Dec. 668, 960 N.E.2d 550, 555 (Ill.2011) ("[E]fforts by legal counsel for the State to defend itself ... will not result in a waiver or forfeiture of the State's statutory immunity. That is so because only the legislature itself can determine where and when claims against the state will be allowed.”), citing People ex rel. Manning v. Nickerson, 184 Ill.2d 245, 234 Ill.Dec. 375, 702 N.E.2d 1278, 1280 (1998).

      . The Illinois exception for illegal acts by state officials resembles the federal rule under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), but has much broader effects. Ex parte Young allows federal suits for injunctive and declaratory relief to require state officials to comply with federal law. The Illinois exception also allows suits for damages against state employees in their individual capacities. Compare MCI Telecommunications Corp. v. Illinois Bell Telephone Co., 222 F.3d 323, 337 (7th Cir. 2000) ("the Ex parte Young doctrine allows private parties to sue individual state officials for prospective relief to enjoin ongoing violations of federal law”), with Fritz v. Johnston, 282 Ill.Dec. 837, 807 N.E.2d at 468. ("Whenever a state employee performs illegally [or] unconstitutionally ... a suit-may still be maintained against-the employee in his individual capacity[.]”), quoting Wozniak v. Corny, 288 Ill.App.3d 129, 223 Ill.Dec. 482, 679 N.E.2d 1255, 1259 (1997).

      . We emphasize that Murphy both alleged and proved the violations in this case. Most Illinois cases dealing with this exception to sovereign immunity focus on the plaintiffs allegations because the appeals have arisen from motions to dismiss on the pleadings. We believe Illinois also requires a plaintiff ultimately to prove the alleged violations. For example, Leetaru explained that "sovereign immunity affords no' protection when agents of the State have acted in violation of statutory or constitutional law or in excess of their authority,” and in reversing dismissal on the pleadings, the court allowed defendants on remand to show their conduct was not “in fact" unauthorized, illegal, or in violation of plaintiff's rights. See 392 Ill.Dec. 275, 32 N.E.3d at 597 (emphasis added).

      . Several opinions of Illinois' intermediate appellate court read the Court of Claims Act more broadly; their reasoning would bring the plaintiff’s battery claims within the exclusive jurisdiction of the Court of Claims. See, e.g., Grainger v. Harrah’s Casino, 385 Ill.Dec. 265, 18 N.E.3d 265, 273-75 (Ill. App. Ct. 2014); Sellers v. Rudert, 395 Ill.App.3d 1041, 335 Ill.Dec. 241, 918 N.E.2d 586, 591-92 (2009); Welch v. Illinois Supreme Court, 322 Ill.App.3d 345, 256 Ill.Dec, 350, 751 N.E.2d 1187, 1194 (2001); Campbell v. White, 207 Ill.App.3d 541, 152 Ill.Dec. 519, 566 N.E.2d 47, 53 (1991). However,-we are bound only by the opinions of Illinois’ highest court.


author: POSNER, Circuit Judge.

text:
    Leonard LOVENTHAL, Creditor-Appellant, v. Zisl Taub EDELSON, Debtor-Appellee.
    No. 16-1290
    United States Court of Appeals, Seventh Circuit.
    Argued December 13, 2016
    Decided December 21, 2016

      Scott J. Kofkin, Attorney, KOFKIN LAW, Roselle, IL, for Debtor-Appellee.
    Andrew R. Schwartz, Karen Irene Jef-freys Bridges, Attorneys, SCHWARTZ & KANYOCK, Chicago, IL, for Appellant.
    Before POSNER, KANNE, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

Mrs, Edelson filed a Chapter 13 bankruptcy petition in the U.S. Bankruptcy Court for the Northern District of Illinois, hoping to erase a debt .owed by her. She and her husband Claude (who did not join her petition or file his own) had in 2001 bought a single-family home in Chicago that the parties refer to as the “Farwell Residence,” and together became the owners of the home as “tenants by the entirety.” Thirteen years later, about seven months before Mrs. Edelson filed her bankruptcy petition, the couple conveyed the home to the husband’s living trust. The conveyance states that “the beneficial interest” in the trust is held by both Mr. and Mrs. Edelson, “husband and wife, as tenant[s] by the entirety,”

Mrs. Edelson’s bankruptcy petition named as one of . her unsecured creditors Leonard Loventhal, a former husband; her debt to him—just over $92,000—was based on a judgment that he’d obtained against her. Often in a Chapter 13 bankruptcy plan some of the debtor’s most important property is deemed “exempt”—i.e., not available for paying off creditors. Mrs. Edelson proposed a payment plan that would give Loventhal $16,000 over five years, but she designated the Farwell Residence as exempt. In his appeal to us Loventhal challenges the designation of the Edelsons’ house as exempt, obviously hoping the property will become a part of Mrs. Edelson’s assets that he can draw on.

Loventhal concedes, however, that if Mrs. Edelson is a tenant by the entirety (which he denies, as we’ll see), her interest in the home would be exempt from his bankruptcy claim. A tenancy by the entirety allows spouses (and only spouses) to own property together as a single legal entity. Each must have an equal undivided interest in the property and a right of survivorship; neither may have the power acting alone to alienate the property. Creditors of one of the spouses .may not attach-and sell the interest of a debtor spouse; only creditors of the couple may attach and sell the interest in the property owned by a tenancy by the entirety; and so a tenant by the entirety may not sell or give away his interest in the property without the consent of the other tenant. Upon the death of one of the spouses the deceased spouse’s interest in the property devolves to the surviving spouse rather than to other heirs of the deceased spouse. Divorce and moving to another primary residence also sever the tenancy by the entirety.

Loventhal argues that the transfer of the property of the Edelsons’ tenancy by the entirety to the husband’s trust eliminated the tenancy by the entirety and thereby removed the shield that it had provided against Loventhal’s enforcement of his claim against her; her half interest in the property, he argued, severed from the tenancy by the entirety, was fair game for him. The bankruptcy judge disagreed; the district court affirmed; and Loventhal now appeals to us, arguing that the tenancy by the entirety having been dissolved, Mrs. Edelson’was not entitled to the exemption that she sought.

She argues that his appeal is moot because the bankruptcy, court confirmed her plan and Loventhal didn’t appeal the confirmation. But a debtor in a Chapter 13 bankruptcy makes payments over several years, and during that period the bankruptcy plan can be modified—or even converted into a Chapter 7 (liquidation) bankruptcy plan. See 11 U.S.C. §§ 1307(c), 1329(a)(1); In re Urban, 375 B.R. 882, 887 (9th Cir. BAP 2007).

The bankruptcy code provides in 11 U.S.C. § 522(b)(3)(B) that “any interest in property in which the debtor had, immediately before the commencement of the [bankruptcy] case, an interest as a tenant by the entirety” is exempted in the bankruptcy proceeding “to the extent that such interest ... is exempt from process under applicable nonbankruptcy law,” which so far as relates to this case is 735 ILCS 5/12-112. That Illinois statute (the relevant nonbankruptcy law) exempts tenancies by the entirety from process to satisfy judgment “against only one of the tenants” (which in this case would be Mrs. Edel-son). And the deed of the Farwell Residence to Mr. Edelson’s living trust states that “the beneficial interest of said trust [is] being held by [the Edelsons], husband and wife, as a tenancy by the entirety.” Moreover, the Illinois Joint Tenancy Act, 765 ILCS 1005/lc, as amended, states that when a trust “specifically state[s] that the interest of the husband and wife to the homestead property are to be held as tenants by the entirety, the estate created shall be deemed to be a tenancy by the entirety.” The trust instrument even provides. (unnecessarily) that nothing in it shall conflict with the Joint Tenancy Act.

It’s true—and is Loventhal’s principal argument—that the trust instrument contains (presumably at the behest of Mr. Edelson, the trustee, or advisers to him) provisions that are inconsistent with a tenancy by the entirety. For example, the trust instrument allows the trustee in his “sole and absolute discretion” to pay his legally enforceable debts from the trust and to amend the trust “in whole or in part,” again unilaterally—and even to “revoke the trust,” also unilaterally; and “upon revocation, the trustee shall deliver the trust property to me” (i.e., to Mr. Edelson). And there is more. But it’s all irrelevant, because the Joint Tenancy Act forbids any construal of the trust that would sever the tenancy by the entirety. The portions of the trust that we’ve just quoted would if applied to the Farwell Residence sever the tenancy by the entirety and are therefore unenforceable.

So the tenancy by the entirety will per-dure no matter what changes Mr. Edelson makes in the trust. Of course, Loventhal will still be able to collect the $16,000 that Mrs. Edelson has committed to pay him under the bankruptcy plan, but that is not relevant to this appeal. The judgment of the district court is

AFFIRMED.


author: SYKES, Circuit Judge.

text:
    Ryan LEAVER, Plaintiff-Appellant, v. Gary SHORTESS, Defendant-Appellee.
    No. 15-2730
    United States Court of Appeals, Seventh Circuit.
    Argued January 7, 2016
    Decided December 21, 2016

      . Brian C. Hough, John M. Riley, Bryan Clayton Whitehead, Saul C. Glazer, Attorneys, Axley Brynelson LLP, Madison, WI, for Plaintiff-Appellant.
    "Remzy D. Bitar, Attorney, Arenz, Molter, Macy & Riffle, Waukesha, WI, for Defendant-Appellee.
    Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

Ryan Leaver was arrested in Montana on a Wisconsin warrant for theft by lessee after he failed to return a rental car to Hertz Rent-A-Car in Appleton, Wisconsin. He spent more than two months in a Montana jail before being extradited to Wisconsin. The theft charge was eventually dropped.

Leaver then' filed this suit under 42 U.S.C. § 1983 alleging that the investigating officer, Sergeant Gary Shortess of the Outagamie County Sheriff’s Department, intentionally or recklessly omitted certain exculpatory information from his police reports that would have defeated probable cause for the charge and accompanying warrant. The district court granted summary judgment for Shortess.

We affirm. No evidence suggests that Shortess was personally aware of the information Leaver claims was wrongly omitted from the police reports. And even if he was aware of it,- qualified immunity applies. It’s not clear that the information would have negated probable cause.

I. Background

The saga of Leaver’s arrest and extradition begins in August 2010 in Appleton, Wisconsin, where Leaver was then living in a motel. On August 2 Leaver’s parked car was struck by a driver who was insured by West Bend Mutual Insurance Company. West Bend covered Leaver’s loss and agreed to pay for a rental car from Hertz. That same day Leaver went to Hertz’s Appleton office, signed a rental agreement, loaded all his belongings- into a rented 2010 Toyota Camry, and set off westward, leaving the state. He wound up in Montana. There he stayed.

The rental contract, however, provided that the Camry was due back to Hertz Appleton on August 12. At Leaver’s request, and with West Bend’s consent, Hertz extended the return date to August 16. That date came and went, but Leaver did not return the car. When he still hadn’t returned the car by August 18, Hertz reported it stolen.

Deputy John Drews of the Outagamie County Sheriffs Department took the initial theft report from Hertz. He learned that Leaver had designated Sam Cartier, his roommate in Appleton, as his contact person. Drews contacted Cartier, who said he had last spoken to Leaver on August 9 or 10. Cartier also explained that Leaver had packed all his belongings in the rental car and was possibly headed for.California. Cartier gave.Drews the last contact information he had for Leaver—a phone number for a Motel 6 in Montana. -Drews called the number ■ but Leaver had already checked out. With no further leads on either Leaver or the car, Drews directed the communications center in the Outagamie County Sheriffs Department to enter the car into the stolen-vehicle registry and send an alert to the Montana Highway Patrol to be on the lookout for the missing Camry.

On September 10 Sergeant Shortess picked up the investigative trail when the Sheriffs Department received a teletype that the stolen Camry had been located, undamaged, in Montana. Shortess reviewed Drews’s report and the statement he had taken from the complaining witness at Hertz Appleton. He also looked at the rental agreement, which showed that Leaver had a Michigan driver’s license. Shortess called the Michigan State Police looking for contact information for Leaver or anything else that might assist in locating him or a family member. This inquiry turned up nothing. Based on what he then knew, Shortess concluded that he had enough to > refer the matter to the Outaga-mie County District Attorney for a theft charge. He prepared a report to that effect, listing that day’s date—September 10, 2010—as the date the car was recovered in Montana.

The matter stalled for six months. Then on March 16, 2011, an Outagamie County Assistant District Attorney filed a criminal complaint charging Leaver with theft by lessee. See Wis. Stat. § 943.20(l)(e). An arrest warrant was issued that same day, though., many weeks would pass before Leaver was located and arrested.

Leaver maintains that he was entitled to keep the Camry for up to 62 days and return it to any Hertz location in the country. He.points to the following clause in the rental agreement: “This vehicle must be returned to, Appleton, WI on 08/12/10 at 16:42 or a higher rate and/or inter city fee will apply. Minimum keep: 1 rental day. Maximum keep: 62 days- @26.99/day.” But a separate section entitled “Return” also states: “You must return the car to Hertz by the due date specified on the rental record, or sooner if demanded by Hertz.” Adding to the confusion, the agreement also provides that “[i]n no event” is the renter allowed to keep the car “for more than thirty (30) days.”

Leaver claims that he returned the Camry to the parking lot at a Hertz location in Belgrade, Montana, on August 26, 2010. He also says that he called Hertz’s national number and got oral permission to return the car :there, though nothing corroborates that claim.

On April 9, 2011—after the criminal complaint was filed and the warrant was •issued—Leaver wrote to Outagamie County Assistant District Attorney Patrick Taylor informing him that he had returned the Camry to Hertz in Belgrade, Montana. He accused Hertz of insurance fraud and suggested- that the prosecutor contact “Matt” at Hertz Belgrade and Katherine Horton at Hertz’s toll-free national number, both of whom (he said) would confirm his story. On May 12 ADA Taylor sent Shortess a ■memo directing him to follow up with the people Leaver identified in his letter.

Shortess did not do so, but he did investigate further in Appleton. He contacted James Foytik, the manager at Hertz Appleton, who told him that' the Camry wasn’t a “one-way rental” (as Leaver’s letter claimed) and confirmed that Leaver had to return the car to Hertz Appleton by August 16. Foytik also told Shortess that Hertz had placed Leaver on a nationwide “do not rent” list based on his failure to return the Camry. Shortess then contacted the corporate security manager for West Bend Insurance, who likewise confirmed that the rental agreement was not a one-way rental. After discussing the case with another sergeant and the prosecutor, Shortess filed a supplemental report memorializing this additional' investigation and concluding that nothing in Leaver’s letter called into question the factual basis for the theft charge.

On May 27, 2011, Leaver was arrested in Bozeman, Montana. He remained in jail until August 4, when he was extradited to Wisconsin. The next day he was brought before a court commissioner in Outagamie County Circuit Court for an initial appearance. Leaver’s lawyer moved to dismiss the case, arguing that the rental contract was vague about when and where the car needed to be returned. He also told the court commissioner that Leaver had returned the car to the Hertz lot in Belgrade, Montana, and pointedly noted that the prosecutor had failed to mention that the car was recovered there. The court commissioner denied the motion, finding probable cause for the crime of theft by lessee in violation of § 943.20(l)(e). Leaver renewed his dismissal motion when the case came before a circuit court judge in December, but the motion was again denied.

On January 17, 2012, the prosecutor dropped the charge and the case was dismissed. Leaver then turned his sights on Hertz, winning a substantial financial settlement. We’re concerned here with Leaver’s § 1983 damages claim against Shor-tess for violating, his Fourth Amendment right- to be free from unreasonable seizure. Leaver contends that Shortess intentionally or recklessly omitted from his police reports certain facts that would have affected the prosecutor’s probable-cause determination—namely, the terms of the “maximum keep” provision in the rental agreement and the “fact” that he had returned the car to Hertz Belgrade on August 26, 2010. The district judge entered summary judgment for Shortess, holding that no evidence supported Leaver’s assertion that Shortess was aware of the omitted information and the omitted 'information wouldn’t have undermined the probable-cause determination anyway.

II. Discussion

We review a summary judgment de novo, construing the evidence in the light most favorable to Leaver and drawing all reasonable inferences in his favor. Townsend v. Cooper, 759 F.3d 678, 685 (7th Cir. 2014). Leaver claims that Shor-tess intentionally or recklessly omitted facts from his written reports that-would have affected the prosecutor’s charging decision, which in turn led to the issuance of an invalid arrest warrant and thus his arrest without probable cause, all in violation of his rights under the Fourth Amendment.

We accept, as we must at this stage, Leaver’s claim that he returned the ear to Hertz Belgrade on August 26. But no evidence suggests that Shortess was actually' aware of that fact. The September 10 teletype said only that the stolen car was recovered in Montana—not that it was returned to a Hertz location there. As for the terms of the rental agreement, the most we can say is that the agreement contains some apparent inconsistencies. It prescribes a fixed date and place for the car’s return: August 12, 2010 (extended to August 16); Hertz Appleton. But it also includes a longer “maximum keep” period (62 days), together with a warning that extra fees will apply for intercity returns and any additional days beyond the listed return date. In light of the other facts Shortess had gathered in his investigation, these conflicting contract provisions do not conclusively negate probable cause. Or at least qualified immunity applies. It would not have been clear to a reasonable officer that these contract provisions defeat probable cause.

“Qualified immunity protects police officers from suit to the extent that their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010) (internal quotation marks omitted). Leaver’s Fourth Amendment claim rests on an argument that the arrest warrant was invalid because Shortess withheld facts from his police reports that would have negated probable cause. Although we ' generally presume the validity of a warrant, that presumption may be overcome by a showing that the officer who sought the warrant “intentionally or recklessly withheld material facts from the warrant-issuing judge.” Id. at 410-11. The key question here is whether the omitted details were indeed material to the probable-cause determination, a question we approach by asking “whether a hypothetical affidavit that included the omitted material would still establish probable cause.” Id. at 411 (quotation marks omitted).

In the context of a § 1983 damages claim against the officer who sought the warrant, this inquiry accounts for the availability of qualified immunity. That is, we ask whether it would have been clear to a reasonable officer that the omitted fact was material to the probable-cause determination. Id. at 412-14; see Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Probable cause “is a common-sense inquiry requiring only a probability of criminal activity; it exists whenever an officer or a court has enough information to warrant a prudent person to believe criminal conduct has occurred.” Whitlock, 596 F.3d at 411. Wisconsin’s theft-by-lessee statute makes it a crime to “[i]ntentionally fail[ ] to return any personal property which is in his or her possession or under his or her control by virtue of a written lease or written rental agreement after the lease or rental agreement has expired.” § 943.20(l)(e). The materiality of the omitted information depends in part on how Wisconsin law- treats a rental-car agreement with both a fixed expiration date and a longer “maximum keep” provision.

We have some guidance. The Wisconsin Supreme Court has upheld the validity of an arrest warrant for violation of the theft-by-lessee statute in a case involving a similarly confusing equipment rental agreement:

We hold the arrest was valid. The equipment was rented on September 13,1975. The rental agreement included a space labeled ‘Date to be Returned.’ That space was filled in with the date ‘9/15/75.’ Although the agreement included a clause providing for additional rent if the equipment was returned after the date agreed upon, we do not believe that clause changed the expiration date of the rental contract.

Robinson v. State, 100 Wis.2d 152, 301 N.W.2d 429, 432 (1981). Robinson lends support to Shortess’s reading of the Hertz contract.

At the very least, Shortess can claim the protection of qualified immunity, which “tolerates reasonable mistakes regarding probable cause.” Whitlock, 596 F.3d at 413. Knowing what Shortess knew, a reasonable officer could have concluded that Leaver committed theft by lessee notwithstanding the confusing language in the contract. Shortess knew that the rental agreement had a fixed expiration date of August 16, 2010, and also listed Hertz Appleton as the return location. He knew that the car was not returned to Hertz Appleton by that date. He confirmed with Hertz Appleton—and also West Bend Insurance—that the car .was not a one-way rental. He also knew that Leaver had packed all his belongings in the leased car and headed for the west coast and was last known to be in Montana. True, he was- also aware by September 10 that the car was recovered in Montana, but as we’ve noted, no evidence suggests that he knew it had been returned to a Hertz location there. Shortess’s interpretation of the rental agreement was reasonable under the circumstances and has some support in Wisconsin law, and he was entitled to rely on the credible complaining witnesses at Hertz Appleton.

In short, it would not have been clear to a reasonable officer that the information Leaver claims Shortess' wrongly omitted from his police reports would have negated probable cause. Indeed, a Wisconsin court commissioner and circuit court judge— both aware of the language in the rental contract and Leaver’s claim that he returned the car to Hertz Belgrade on August 26—found probable cause for' the charge of theft by lessee. The district judge properly entered summary judgment for Shortess.

Affirmed.

      . A warrantless arrest without probable cause gives rise to a Fourth Amendment claim for false arrest, which "cover[s] the time of detention up until issuance of process or arraignment.” Wallace v. Kato, 549 U.S. 384, 390, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Once legal process commences, the Due Process Clause takes over and the claim is-recognized—if at all—as one for malicious prosecution. Bianchi v. McQueen, 818 F.3d 309, 322 (7th Cir. 2016) (recognizing that after Wallace a Fourth Amendment false-arrest claim is limited to the period before legal process begins). Leaver was arrested on a warrant that was issued with the criminal complaint. It’s not clear that the Fourth Amendment applies at all, but Shortess didn’t raise this point so we consider it waived.