Weekly Case Digests May 27, 2019 May 31, 2019.

• Date: 31 May 2019

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Tom Smith, III

Case No.: 18-2905

Officials: WOOD, Chief Judge, and FLAUM and SYKES, Circuit Judges.

Focus: Sentencing Guidelines Enhancement

Tom Smith, III appeals the district court's determination that he is a career offender under 4B1.1 of the United States Sentencing Guidelines, and is eligible for the corresponding career-offender sentencing enhancement. The district court applied the enhancement after concluding that Smith had two prior convictions that qualified as controlled substance offenses under 4B1.2(b) of the Guidelines. Smith maintains that one of those convictions the one under Indiana's "Dealing in cocaine or narcotic drug" statute, Ind. Code 35-48-4-1criminalizes more conduct than the Guidelines' definition of a controlled substance offense. As such, Smith contends that his conviction under the overbroad statute cannot serve as a predicate controlled sub- stance offense for purposes of a career-offender designation. Smith asks that we vacate his sentence for improperly including a career-offender enhancement. We disagree with Smith's interpretation of the statute and thus affirm the district court's judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Tai Matlin, et al. v. Spin Master Corp, et al.

Case No.: 18-2868

Officials: KANNE, SYKES, and HAMILTON, Circuit Judges.

Focus: Personal Jurisdiction

Tai Matlin and James Waring appeal the district court's dismissal of their suit against Spin Master Corporation, Spin Master Ltd., and Swimways Corporation for lack of personal jurisdiction and improper venue. Because the defendants have insufficient contacts with Illinois to establish specific personal jurisdiction, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Laurance H. Freed

Case No.: 17-2816

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

Focus: Jury Instructions

It appears that Laurance Freed did everything he could to keep his real estate business alive. Unfortunately for Freed, much of that was illegal. Freed lied to prospective lenders about the availability of collateral and to ensure those lenders remained in the dark about numerous defaults, he lied to the City of Chicago. A person is liable for aiding and abetting a crime if he takes an affirmative act in furtherance of that offense with the intent of facilitating commission of the offense. Rosemond v. United States, 572 U.S. 65, 71 (2014) (citing Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 181 (1994)). Additionally, it is axiomatic that one cannot aid and abet a crime unless a crime was actually committed. See United States v. Motley, 940 F.2d 1079 (7th Cir. 1991). Freed latches onto this requirement and asserts the district court's aiding and abetting instruction was deficient because it did not require the jury to find a crime was actually committed. The government also proved that Freed entered into loan agreements with no intention of abiding by their terms. We affirm Freed's convictions for bank fraud (18 U.S.C. 1344); mail fraud (18 U.S.C. 1341); wire fraud (18 U.S.C. 1343); and making false statements to a financial institution (18 U.S.C. 1014).

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Rachel L. Kopp

Case No.: 18-3172

Officials: FLAUM, EASTERBROOK, and SYKES, Circuit Judges.

Focus: Sentencing Guidelines

Rachel L. Kopp has a history of substance abuse and drug-related convictions. During the sentencing hearing for the revocation of her supervised release, the district court announced an 18-month sentence; but then, after learning from the probation officer that 18 months might not allow sufficient time for Kopp to complete a residential drug treatment program, the court increased the sentence to 20 months. Kopp appeals, arguing the district court improperly lengthened her sentence to promote rehabilitation in violation of Tapia v. United States, 564 U.S. 319 (2011), and 18 U.S.C. 3582(a). For the reasons below, we vacate the sentence and remand to the district court for resentencing.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Myshawn Bonds

Case No.: 18-2670

Officials: EASTERBROOK, KANNE, and SCUDDER, Circuit Judges.

Focus: 6th Amendment Violation Confrontation Clause

A jury convicted Myshawn Bonds of bank robbery, 18 U.S.C. 2113(a), and a judge sentenced him to sixty months' imprisonment plus three years' supervised release. The evidence against him included the testimony of Kira Glass, a fingerprint examiner in the FBI's Latent Print Operations Unit. Glass concluded that Bonds's fingerprints appeared on the demand notes used in the two robberies.

Bonds contends that the district court's decision to exclude evidence about Mayfield's mistaken identification and arrest violated the Confrontation Clause of the Constitution's Sixth Amendment. United States v. Rivas, 831 F.3d 931 (7th Cir. 2016), rejected an identical contention, holding that a district court did not violate the Constitution when excluding evidence about the Mayfield situation. Bonds asks us to distinguish Rivas on the ground that Glass works in the same FBI division that mistakenly identified Mayfield, but Bonds does not contend that Glass was involved in that error. Guilt by association would be a poor reason to deny a district judge the discretion otherwise available under Fed. R. Evid. 403.

To say that an error rate is troubling is not to suggest that ACE-V is too uncertain for use in litigation. Assessment must be comparative. What are the alternatives? Grainy pictures taken by bank surveillance cameras of robbers wearing masks, or confederates who testify for the prosecution, have problems of their own. Witnesses may lie on the stand; there is no science of credibility enabling jurors to detect who is telling the truth, and some witnesses who think that they are telling the truth nonetheless may be confused or incorrect. Eyewitness identification is notoriously subject to the vagaries of memory. A judicial system that relies heavily on fallible lay testimony cannot be improved by excluding professional analysis that may well have a lower error rateor by diverting jurors' attention to particular errors made by other analysts years earlier. What the judicial system can do is subject the forensic evidence to cross-examination about a method's reliability and whether the witness took appropriate steps to reduce errors. Bonds enjoyed that opportunity.

Affirmed

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7th Circuit Court of Appeals

Case Name: Mauricio Gonzalez Ruano v. William P. Barr

Case No.: 18-2337

Officials: HAMILTON, BARRETT, and ST. EVE, Circuit Judges.

Focus: Immigration - Asylum

In September 2016, members of a Mexican drug cartel kidnapped, tortured, and threatened to kill petitioner Mauricio Gonzalez Ruano, who was living with his family in the Mexican state of Jalisco. The cartel uses brutal violence to terrorize communities throughout Mexico and exercises influence at all levels of the Mexican government in furtherance of its criminal objectives.

Gonzalez Ruano's persecution began after he refused to allow the local cartel leader to "possess" his wife, as the record puts the point euphemistically. As we explain below, Gonzalez Ruano and his wife tried to find a way to continue living safely in Mexico. Their attempts failed, in shockingly brutal ways. On the advice of a Mexican prosecutor, Gonzalez Ruano and his wife and two children then fled to the United States. The couple surrendered themselves at the border. Gonzalez Ruano applied for asylum, withholding of removal, and protection under the Convention Against Torture.

An immigration judge found that Gonzalez Ruano was credible and that he would likely be tortured if he returned to Mexico. The judge therefore granted relief under the Convention Against Torture. The judge denied his petition for asylum, however, on the ground that Gonzalez Ruano did not show a nexus between his persecution and membership in a "particular social group," which is one path toward asylum in the United States. The Board of Immigration Appeals agreed with the judge. Gonzalez Ruano has petitioned this court for review. We find that the record here compels a finding that the torture and persecution Gonzalez Ruano has suffered in the past and fears in the future were and would be because of his membership in the "particular social group" of his wife's family. Gonzalez Ruano thus demonstrated statutory eligibility for asylum in the United States. We GRANT his petition for review and REMAND the case to the Board for further proceedings consistent with this opinion.

Petition granted and cause remanded

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7th Circuit Court of Appeals

Case Name: GEFT Outdoors, LLC. v. City of Westfield

Case No.: 18-3236

Officials: FLAUM, KANNE, and SCUDDER, Circuit Judges.

Focus:

GEFT Outdoors, LLC began building a digital billboard on its property in the City of Westfield, Indiana without obtaining or applying for the requisite sign permit. GEFT believed Westfield's relevant sign standards ordinance contains unconstitutional content-based speech restrictions and that this invalidity renders the ordinance non- existent. GEFT only stopped installing the billboard when a contract attorney for Westfield threatened to arrest GEFT's representatives if the installation work continued. After this confrontation, Westfield and GEFT filed dueling injunction motions. GEFT asked for an injunction preventing Westfield from violating its due process rights; Westfield asked the district court to enjoin GEFT from installing the billboard pending the outcome of this litigation. The district court denied GEFT's motion and granted Westfield's motion, and GEFT filed this...