Take the Fifth: May 6 and 7, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Gas Pipe, Inc., 19-11145, appeal from N.D. Tex.
    • Higginson, J. (Haynes, Higginson, Oldham), criminal, sufficiency of evidence, fraud, sentencing
    • Affirming conviction for conspiracy to defraud the United Stated for defrauding the FDA by mislabeling or selling synthetic cannabinoids marked as “not meant for human consumption” as “spice” for smoking; and affirming 36-month sentences for defendants.
    • The defendants sold their products from a chain of shops in Texas and New Mexico. “The appellants labeled their products as ‘not for human consumption.’ But, as the appellants stipulated at trial, they knew that the spice products sold by Gas Pipe stores were mislabeled because they were intended for human consumption. Indeed, Gas Pipe’s spice products were sometimes rated based on their ‘strength,’ meaning how ‘high’ it would get the user. Between 2011 and 2014, the appellants sold more than two million units of spice totaling more than $40 million in revenue.”
    • The Court held that the district court was correct to not strike the “defraud” count of the indictment, because there was no need for a requirement of a nexus between the alleged fraud and an ongoing tax or other administrative proceeding.
    • The Court held that any error in the district court’s failure to include materiality as an element of the mislabeling count was harmless, because the evidence in the record supported that the mislabeling was material to the defendants’ sale of the products. The Court also held that there was no error in the district court’s rejection of adding to the jury instruction on “intent to defraud,” that an intent to deceive of cheat was required.
    • The Court then held that the sentences were substantively reasonable. “Because the district court justified Shults’s and Herrig’s sentences as both variances and departures, we need not consider the propriety of their sentences as an upward departure. Instead, we affirm the sentences on the district court’s basis as an upward variance justified by the § 3553(a) factors.”
  • U.S. v. Herman, 19-50830, appeal from W.D. Tex.
    • Higginson, J. (Dennis, Higginson, Willett), criminal, fraud, tax
    • Affirming convictions on counts of defrauding the United States and willfully filing false tax returns, against owners of three restaurants.
    • The Court held that the district court did not err in excluding supplemental audio clips from an undercover investigator’s conversations with the defendants, intended to according to the defendants to provide context for inculpatory portions of the recordings that the government had cherry-picked and had been admitted. The Court held that Federal Rule of Evidence 106 “permits a party to correct an incomplete and misleading impression created by the introduction of part of a writing or recorded statement; it does not permit a party to introduce writings or recorded statements to affirmatively advance their own, alternative theory of the case.” Most of the challenged statements the Court found to not be corrective or incomplete or misleading impressions; and the few that arguably could have been the Court held that any error was harmless because there was ample evidence alternative to the government’s introduced portions of the audio recordings to support the jury’s verdict.
    • The Court held that the district court did not err in excluding defendant’s proposed expert forensic accountant, who was going to testify regarding gross receipts included on the defendants’ tax returns that should not have been, and as to business-related expenses paid with personal funds, as “mitigating” evidence against the cash receipts not deposited into the defendants’ business accounts or reported on their taxes and against personal expenses paid with business receipts. The Court held that the district court correctly found that these were separate financial issues, and that the proposed expert testimony wold lead to juror confusion.
    • The Court also held that there was no error in the district court’s limiting of the defendants’ cross-examination of their accountant and one of the investigating agents. The Court held that the excluded questioning of the accountant would have led to juror confusion as to financial issues separate from the charged conduct.
    • The Court also held that there was no need for a “nexus” requirement between the charged defrauding of the government an any ongoing administrative proceeding.
  • U.S. v. Khan, 20-20030, appeal from S.D. Tex.
    • Jolly, J. (Jolly, Stewart, Oldham), criminal, sentencing
    • Reversing the defendant’s below-Guidelines sentence for defendant who pled guilt to a terrorism-related charge, and reassigning to a new district court judge on remand for resentencing. “Because the district court did not account for a sentencing factor that should have received significant weight, we reverse the defendant’s sentence as substantively unreasonable and remand for a second resentencing. And because the sentencing judge seems immovable from his views of the sentence he imposed, and because the judge displayed bias against the government and its lawyers, we sua sponte reassign this case to a different judge.”
    • The district court had twice sentenced the defendant to 18 months’ imprisonment instead of the government’s requested 180 months, finding that the aiding-terrorism sentencing enhancement should not apply because the defendant had not provided ISIS with a fighter when he encouraged his friend to join ISIS, but that the two had just been young and impressionable friends who had encouraged each other in doing something they were already going to do. The Court held that “the record and Khan’s plea agreement make abundantly clear that Khan played a singular role in planning their travel to Turkey and was a necessary link in connecting Garcia to ISIS. Indeed, as we have noted, Khan agreed that the material support he provided to ISIS was his friend, Garcia. Judge Hughes minimized Khan’s material support as ‘what money he had left over’ and ‘traveling with [Garcia] and then giving him a phone number when he bailed out’ and seemed to brush aside the facts that demonstrated the seriousness of Khan’s actions.”
    • The Court then ordered the “rare” remedy of reassigning the case to a different judge for resentencing on remand, noting that “the [district court] judge packed the record with hostile remarks against the government and its attorneys. He repeatedly indicated that government attorneys, especially those from Washington, are lazy, useless, unintelligent, or arrogant. At times, these same sorts of comments were directed at the particular government attorneys appearing before him. What’s more, he compared the government with ISIS, referred to its attorneys as ‘thugs,’ and alluded to the Department of Justice as unethical.”
  • Watkins v. Tregre, 20-30176, appeal from E.D. La.
    • Jolly, J. (Jolly, Stewart, Oldham), Oldham, J., dissenting in part; employment discrimination, Title VII, Family and Medical Leave Act
    • Vacating the district court’s summary judgment in favor of sheriff defendant, finding that there are genuine issues of material fact as to the pretextual nature of the sheriff’s termination of his employee, the plaintiff, which plaintiff claimed was race-based employment discrimination and retaliation under the FMLA.
    • The Court held that the plaintiff had made a prima facie showing of race discrimination–that she was a member of a protected group, as a Black woman, who was qualified for her job as a 911-center dispatcher supervisor, who faced adverse employment action (termination), and that she met her shifted burden under the McDonnell Douglas framework when she countered the sheriff’s non-discriminatory reason of terminating her for sleeping on the job with summary judgment evidence of a similarly situated white male call supervisor had also been caught sleeping on the job but not been terminated.
    • Under similar analysis, the Court held that the district court erred in dismissing the plaintiff’s FMLA retaliation claim, where the termination of the plaintiff for sleeping on the job occurred after she had provided a doctor’s note regarding medical issues requiring her to have certain scheduling accommodations. The Court again looked to the evidence of a similarly situated white male dispatcher who was not terminated for the same infraction that was used as the reason for terminating the plaintiff.
    • Judge Oldham dissented in part, disagreeing as to the FMLA retaliation claim. He opined that the majority failed to point to evidence that showed that, for FMLA purposes, the white male dispatcher was not in the same protected class as the plaintiff; i.e., that the other dispatcher had not engaged in an FMLA-protected activity or communication. Judge Oldham then opined that the majority’s turn to the temporal proximity of the termination and the FMLA request could not by itself justify vacating the FMLA claim dismissal: “Moreover, the majority has discarded our precedents’ bright line (‘temporal proximity alone is never sufficient’) and replaced it with a new, very hazy one (‘temporal proximity is sufficient when we think it’s ‘close’). So, you might reasonably wonder, when is temporal proximity ‘close’? Is three days sufficiently close? How about six? Who knows?”
  • U.S. v. Haggerty, 20-50203, appeal from W.D. Tex.
    • Higginson, J. (Haynes, Higginson, Oldham), Oldham, J., concurring in judgment; criminal, sentencing
    • Affirming conviction of malicious injury of property located on “Indian country” in violation of 18 U.S.C. §§ 1152 and 1363, and sentence of 12 months and one day with three years’ supervised release. The conviction occurred on a stipulated-facts trial. “According to the stipulated facts, on Columbus Day in 2017, Haggerty poured red paint on a statue of Nestora Piarote, an Indigenous woman, and placed a wooden cross in front of it. The statue was located in El Paso County, Texas, on land reserved to the Yselta Del Sur Indian Tribe (also known as the Tigua Indian Tribe). The tribe erected the statue to honor the women of their tribe and had unveiled it just three months earlier. It cost $92,000. Law enforcement arrested Haggerty after linking him to the purchase of the wood and paint used in the crime. In addition, in the months preceding the crime, Haggerty had reposted or liked social media posts: (1) expressing concern that a statue of Christopher Columbus would be removed from Columbus Circle in New York City; (2) urging Catholics to unite to defend Columbus Day from being replaced by a ‘pagan’ Indigenous Peoples’ Day; and (3) stating that Catholic history was being erased.”
    • The Court held that the conviction was supported without having to introduce evidence that the defendant was “non-Indian.” “The question presented here—an issue of first impression in this circuit—is, when the victim is Indian (both charged and also proven), whether the intra-Indian carve-out in § 1152 operates to make the non-Indian status of the defendant an ‘essential element’ of any offense prosecuted via § 1152, or whether the defendant’s Indian status is instead an affirmative defense that must be asserted as a defense to prosecution.” The Court held that, under § 1152, Indian status is an affirmative defense, rather than non-Indian status being a required element of the offense.
    • The Court then held that the district court did not err in counting the $92,000 value of the statue, rather than the $1800 cost of the repair, as the amount at issue for purposes of sentencing, because the sentencing enhancement turns on the “value of the cultural heritage resource.”
    • Judge Oldham concurred in the judgment, to address the majority’s engaging in more than plain error review of the defendant’s argument as to his non-Indian status, which had been couched as a sufficiency of the evidence argument. “Binding en banc precedent holds that raising sufficiency issues is not enough to preserve unraised ‘factual and legal subissue[s]’ like the one Haggerty wants to litigate.”
  • Texas Democratic Party v. Hughs, 20-50683, appeal from W.D. Tex.
    • Willett, J. (Haynes, Graves, Willett), election law, sovereign immunity
    • Reversing the district court’s denial of the Texas Secretary of State’s sovereign immunity defense to a suit seeking to enjoin the enforcement of HB 1888, a state law that bars counties from operating mobile or pop-up early voting locations. “Applying our precedents in this area is no easy task. We have not outlined a clear test for when a state official is sufficiently connected to the enforcement of a state law so as to be a proper defendant under Ex parte Young. But we are not writing on a blank slate: A previous panel held that the Secretary lacks a sufficient connection to the enforcement of Texas’s early voting statutes.” The Court held that, under Mi Familia Vota v. Abbot, it was local elections officials who were charged with enforcement of the early voting statutes, not the Secretary of State, such that Ex parte Young was inapplicable.

Unpublished

  • U.S. v. Rambo, 19-10229, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Tovar, 19-11381, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Sauzo, 19-51138, appeal from W.D. Tex.
    • per curiam (Willett, Ho, Duncan), habeas corpus
    • Denying certificate of appealability from denial of § 2255 petition.
  • U.S. v. Lowrimore, 20-10122, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lopez-Figueroa, 20-10593, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Morrison, 20-30528, appeal from E.D. La.
    • per curiam (King, Jones, Costa), criminal, search and seizure
    • Affirming conviction for being a felon in possession of a firearm, upholding denial of motion to suppress.
  • U.S. v. Player, 20-30585, appeal from W.D. La.
    • per curiam (Jolly, Elrod, Graves), criminal, sentencing
    • Affirming 151-month sentence on guilty-plea conviction of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.
  • U.S. v. Reyes-Cruz, 20-40041, appeal from S.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Castillo-Gonzalez, 20-40203, appeal from S.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Ramos-Tayun, 20-40417, appeal from E.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Pena v. Saul, 20-40682, appeal from S.D. Tex.
    • per curiam (Davis, Stewart, Dennis), social security
    • Affirming district court’s denial of claimant’s summary judgment motion challenging benefits determination by Social Security commissioner.
  • U.S. v. Riley, 20-50588, appeal from W.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Murray, 20-50594, appeal from W.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Mendoza-Valles, 20-50932, appeal from W.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal
    • Granting summary affirmance of guilty-plea conviction of illegal reentry into the United States after a prior removal.
  • U.S. v. Smith, 20-60522, appeal from S.D. Miss.
    • per curiam (Clement, Higginson, Engelhardt), criminal, sufficiency of evidence
    • Affirming brothers’ convictions of possession with intent to distribute marijuana and with possession of a stolen firearm.