Take the Fifth

Designated foro publication

• U.S. v. Warren, 19-10805, appeal from N.D. Tex.
  • Willett, J. (Wiener, Costa, Willett), criminal, fraud, sufficiency of evidence, sentencing
  • Affirming conviction and sentence of 114 months and 102 months for two defendants on eight counts arising from fraudulent telemarketing scam to ostensibly cancel timeshares.
  • The Court held that there was sufficient evidence of a single conspiracy during the full time period covered by the indictment because “the jury could have easily inferred that the co-conspirators shared a common goal to profit through their participation in the telemarketing scheme during the time period alleged in the indictment.”
  • Confronting the defendant’s argument that there was insufficient evidence that he aided and abetted in wire fraud, the Court rejected his argument that the evidence didn’t show he participated in the particular frauds at issue; “Martinez reads the ‘affirmative act’ requirement far too narrowly. The Government need only prove that Martinez ‘associated with, participated in, and acted to help the’ offense. It does not need to show that he was present when the crime was committed or that he actively participated. … [Martinez was involved in the] scheme from the very beginning, when he incorporated the telemarketing company, secured its merchant processor account, and provided the office space. Later, he directly managed various fraudulent operations, first on behalf of Mendez and then on his own.” (Internal quotation marks and citations omitted).
  • On plain error review, the Court rejected the defendants’ arguments that victims’ testimony about their conversations with the telemarketers was inadmissible hearsay. The Court held that the testimony wasn’t introduced to prove the truth of the matter asserted, but to the contrary, to show the lies that were being told to the victims.
  • As to sentencing, the Court held that the district court did not commit plain error in applying a six-month enhancement as a consecutive period to the base sentence instead of as an enlargement of the guidelines range. The Court also held that there was no plain error in applying the “manager or supervisor” enhancement to one of the defendants.

• Prantil v. Arkema, Inc., 19-20723, appeal from S.D. Tex.
  • Higginbotham, J. (Higginbotham, Elrod, Haynes), toxic tort, class action
  • Vacating district court’s order certifying class under Rule 23(b)(2) and 23(b)(3)for plaintiffs bringing suit against facility owner for the release of toxic ash and smoke during the landfall of Hurricane Harvey, and remanding for further proceedings.
  • As a threshold matter, the Court confronted the evidentiary standard at the certification stage. “[W]e ask, when the cementing of relationships among proffered class members of liability or damages or both turns on scientific evidence should we insist that the metric of admissibility be the same for certification and trial. We answer that question in the affirmative; the Daubert hurdle must be cleared when scientific evidence is relevant to the decision to certify.”
  • As to the predominance requirement for the 23(b)(3) certification, the Court held that the district court “did not discuss the considerations affecting the administration of trial, and it concluded that common questions would predominate without adequately addressing Arkema’s arguments that causation, injury, and damages would be highly individualized. The district court’s discussion of trial administration was limited to observing that it was amenable to Plaintiffs’ proposal to bifurcate the trial of liability and damages. But it did not discuss the manner in which it would conduct the liability phase or how it would implement Plaintiffs’ proposed ‘bellwether trials’ at the damages phase. Although the district court acknowledged that Plaintiffs’ mass appraisal approach to property damages was untenable after their expert was disqualified, it did not discuss how this difficulty might affect an eventual damages phase in the proceedings. The district court recognized that individualized damages do not make the case per se unsuitable for class treatment, and then concluded that any issues could be addressed as they arose. In so doing, the court drifted to the ‘figure-it-out-as-we-go-along’ approach, one to be avoided.”
  • The Court also held that it appeared the district court relied on assumptions about the movement of class members throughout the class area rather than on findings of their actual movement around the class area, in determining that the particular location of their residences would not over-individualize the causation issue as to nuisance and trespass.
  • The Court emphasized that it was not concluding that the district court was wrong about the predominance of common issues, but that it was not clear from its order that it has given rigorous analysis of the issues. “Future certification proceedings would here benefit from detailing the evidence the parties may use to prove or defend against liability and its commonality to all class members. We do not exhaustively catalogue the matters deserving consideration under Rule 23(b)(3) on remand. And we do not suggest that Arkema is entitled to prevail on its counterarguments to certification. We hold only that the relative balance of concededly common claim elements to contested elements of causation and injury warrants closer attention.”
  • The Court then took issue with the district court’s certification under 23(b)(2), finding that the cohesiveness analysis was lacking as to the two identified types of injunctive relief. As to medical monitoring, the Court held that “the district court did not discuss the range or types of medical monitoring the injunction would implement.” As to property remediation, the Court held that “the district court made no specific findings as to what the property remediation program would entail.” “These discussions of the injunctions in their broad strokes do not satisfy the requirement that injunctive relief be reasonably specific. Our decisions make clear that more is needed than a common failure by the defendant and the prospect that all class members could realize some benefit if the defendant is compelled to act or desist.To be sure, ‘Rule 23(b)(2) does not require that every jot and tittle of injunctive relief be spelled out at the class certification stage,’ but some ‘reasonable detail’ as to the ‘acts required’ is necessary.” (Internal quotation marks and citations omitted).

• Keel v. Saul, 20-10728, appeal from N.D. Tex.
  • Haynes, J. (Haynes, Duncan, Engelhardt), social security
  • Affirming district court’s affirmance of Social Security Commissioner’s denial of supplemental security benefits and disability insurance to plaintiff regarding various impairments, including hypertension; injury to her back, right knee, right shoulder, and neck; arthritis; depression; diabetes; compressed nerves; and sleep apnea.
  • The plaintiff argued that the ALJ erred in assessing the severity of her impairments. ALJs are to use the severity standard from Stone, that “impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience,” and are presumed to have used the wrong standard if they do not quote this language. However, it not a “magic language” requirement automatically requiring remand if the language fails to appear. Here, the ALJ instead used language from a Social Security Ruling, SSR 85-28, and district courts in the Circuit are split as to whether SSR 85-28 and Stone articulate an equivalent standard. The Court held, “Stone and SSR 85-28 are not substantially different enough to warrant a finding of error.”

Unpublished

• U.S. v. Jones, 19-30110, appeal from M.D. La.
  • per curiam (King, Smith, Wilson), habeas corpus
  • Reversing district court’s determination that the § 2255 petition was a prohibited successive petition, and remanding for further proceedings.

• U.S. v. Hernandez-Carrillo, 19-50625, appeal from W.D. Tex.
  • per curiam (Owen, Ho, Engelhardt), criminal, sentencing
  • Affirming in part and dismissing appeal in part of 96-month, below guidelines range sentence for conspiracy to import 500 grams or more of methamphetamine, conspiracy to possess with intent to distribute 500 grams or more of methamphetamine, and possession with intent to distribute 500 grams or more of methamphetamine.

• U.S. v. Meza, 20-10218, appeal from N.D. Tex.
  • per curiam (Haynes, Higginson, Oldham), criminal, sentencing
  • Affirming 120-month statutory maximum sentence upon guilty plea to one count of possession, sale, and disposal of a stolen firearm.

• Wright v. United Parcel Serv., Inc., 20-30249, appeal from W.D. La.
  • per curiam (Haynes, Duncan, Engelhardt), employment discrimination
  • Affirming summary judgment dismissal of age and sex discrimination claims.

• U.S. v. Martinez-Copto, 20-50748, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Granting summary affirmance of sentence of 21 months of imprisonment and three years of supervised release, which the district court imposed following his guilty plea conviction for illegal reentry.

• U.S. v. Harmon, 20-60450, appeal from N.D. Miss.
  • per curiam (Jolly, Elrod, Graves), criminal, compassionate release
  • Affirming denial of motion for compassionate release.