Weekly Case Digests March 4, 2019 March 8, 2019.

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Artez Brewer

Case No.: 18-2035

Officials: BAUER, ROVNER, and ST. EVE, Circuit Judges.

Focus: 4th Amendment Violation

Artez Brewer and his girlfriend, Robin Pawlak, traveled the country robbing banks, la Bonnie and Clyde. Agents today, however, have investigative tools that their Great Depression predecessors lacked. With a warrant for real-time, Global-Positioning-System (GPS) vehicle monitoring, a task force tracked Brewer's car to California where he and Pawlak committed another robbery. Brewer was arrested and essentially confessed to the crime spree. The government charged him with three counts of bank robbery, 18 U.S.C. 2113(a), and a jury convicted him on each count.

Brewer appeals. He argues that the government violated the Fourth Amendment by tracking him to California when the warrant only permitted monitoring in Indiana. But the in-state limitation did not reflect a probable-cause finding or a particularity requirement, and the Fourth Amendment is unconcerned with state borders. Brewer also argues that the district court abused its discretion in admitting evidence of unindicted robberies. Yet that other-act evidence was directly probative of Brewer's identity, modus operandi, and intent, and it therefore fell within the bounds of Federal Rule of Evidence 404(b)(2). We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Luis A. Fernandez

Case No.: 17-3421

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

Focus: Court Error Evidentiary Ruling

A jury convicted Luis Fernandez of being a felon in possession of a firearm, see 18 U.S.C. 922(g)(1). Fernandez appeals his conviction, contending that the district court committed three evidentiary errors that deprived him of a fair trial. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Josue Vargas

Case No.: 18-1250

Officials: WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

Focus: Due Process Violation

Convicted of two cocaine offenses, 21 U.S.C. 841(a)(1), Josue Vargas has been sentenced to 72 months' imprisonment. His principal appellate argument is that the district judge should have suppressed packages of that drug seized from his truck. None of Vargas's other arguments requires discussion. We agree with him that the district judge should have been more even-handed (at least when the jury could overhear his admonitions to defense counsel), but neither on that subject nor any other did the judge violate the Due Process Clause, which in criminal cases deals with only egregious transgressions of trial rules and decorum. Donnelly v. DeChristoforo, 416 U.S. 637 (1974).

Affirmed

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7th Circuit Court of Appeals

Case Name: Jeryme Morgan v. Minh Schott, et al.

Case No.: 16-2384

Officials: KANNE, SYKES, and ST. EVE, Circuit Judges.

Focus: Due Process Violation

Illinois prison officials issued a disciplinary report charging inmate Jeryme Morgan with offenses stemming from a violent assault on fellow prisoners. Morgan disputed the charges and asked the authorities to call a witness to testify at his Adjustment Committee hearing. But the Committee never called Morgan's witness. He was found guilty and the Committee imposed punishment of one year of segregation, various status and access restrictions, and revocation of three months of good-time credits. Morgan filed a grievance challenging his punishment on due-process grounds and appealed its subsequent denial to the Administrative Review Board ("the Board"). The Board adjusted the revocation of good-time credits to one month but affirmed the Committee's due-process ruling, concluding that Morgan's witness request did not comply with prison rules.

We affirm. Prisoners cannot make an end run around Heck by filing an affidavit waiving challenges to the portion of their punishment that revokes good-time credits. We recently addressed that very tactic and found it incompatible with the Heck line of cases. Haywood v. Hathaway, 842 F.3d 1026 (7th Cir. 2016). Morgan provides no reason to question Haywood, and we reaffirm its reasoning. Morgan's attempt to analogize his case to Wilkinson v. Dotson, 544 U.S. 74 (2005), and Skinner v. Switzer, 562 U.S. 521 (2011), misunderstands those decisions. Judgment in Morgan's favor would necessarily imply the invalidity of his prison discipline. Thus, no 1983 claim has accrued. This suit is premature and must be dismissed without prejudice.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jackson County Bank v. Mathew R. DuSablon

Case No.: 18-2809

Officials: WOOD, Chief Judge, and BRENNAN and ST. EVE, Circuit Judges.

Focus: Sanctions

Jackson County Bank sued its former employee, Mathew R. DuSablon, in Indiana state court, asserting various state law claims, including theft of property and breach of contract. Following his unsuccessful motion to dismiss, DuSablon removed the case to federal court. The district court remanded the case to state court for want of jurisdiction and untimely removal and further ordered DuSablon to pay the costs and fees for the wrongful removal. DuSablon now appeals the remand order and the district court's imposition of sanctions. We dismiss the appeal of the district court's remand order and affirm its award of costs and fees.

Dismissed in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: United States of America v. Anastacia V. Maclin

Case No.: 18-2158

Officials: BAUER, KANNE, and BRENNAN, Circuit Judges.

Focus: Jury Instructions and Sentencing Enhancement

After a jury found Anastacia Vann Maclin guilty of two counts of Medicaid theft she was sentenced to 15 months' imprisonment. Maclin embezzled funds from Dr. Farzana Khan's medical practice after being hired to handle its electronic billing. Maclin raises two issues on appeal. First, is whether a comment by a prospective juror ("Prospective Juror No. 11") that Dr. Khan had a "home for autism" required voir dire to be restarted with a new jury panel. Second, is whether the district court properly applied a vulnerable victim sentence enhancement based on Dr. Khan's computer illiteracy. For the following reasons, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Dandre Moody

Case No.: 18-1837

Officials: WOOD, Chief Judge, and RIPPLE and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines Enhancement

Within two days of helping his codefendants steal more than 100 guns from a train car, Dandre Moody sold 13 of them to anonymous buyers who telephoned him after they "heard about it." He pleaded guilty to possessing a firearm as a felon, 18 U.S.C. 922(g)(1); possessing a stolen firearm, id. 922(j); and cargo theft, id. 659, for which he was sentenced to 93 months' imprisonment.

Moody now appeals his sentence. He challenges, for the first time, a four-level guideline enhancement under U.S.S.G. 2K2.1(b)(5) for trafficking firearms to people he knew (or had reason to know) were unlawful users or possessors.

We agree with Moody that the district...

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