Take the Fifth: June 1, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Davis v. Sumlin, 20-30010, appeal from W.D. La.
    • Oldham, J. (Higginbotham, Smith, Oldham), habeas corpus, jurisdiction
    • Vacating district court’s denial of petitioner’s successive habeas petition on the merits, for lack of jurisdiction due to the failure to get authorization from three-judge panel before filing successive petition; and denying COA on merits of district court decision as moot (though noting that the recantation of the recantation of the victim of the crime undermined the petitioner’s claim of a constitutional violation).
  • MoneyGram International Inc. v. Commissioner of Internal Revenue, 20-60146, appeal from U.S. Tax Court
    • Costa, J. (Higginbotham, Costa, Oldham), tax
    • Affirming the Tax Court’s holding that MoneyGram is not a “bank” under the tax code for purposes of deducting the full amount of losses written off regarding mortgage-backed securities.
    • MoneyGram is registered as a “money services business” and as a “global payment services company.” Although at the beginning of each day financial institutions deposit enough money with MoneyGram to cover the anticipated servicing of “official checks” (cashier’s checks and bank drafts), the Court held that this is not the same as the handling of “deposits” for purposes of rendering MoneyGram a “bank.”
    • The Court held that a “bank” exists under the tax code if three requirements are met: “(1) that the entity be a “bank” within the common understanding of the term; (2) that a substantial part of the entity’s business consist of deposits, loans, and discounts; and (3) that the entity be subject to state or federal regulation.” And “deposits,” held the Court, “have always been tied up with the need for safekeeping.” The Court first rejected that a customer’s purchase of a money order from MoneyGram was a deposit for purposes of safekeeping; “[a]lthough a customer views the money order as a secure way to transfer funds, it does not follow that the purchaser is placing money with MoneyGram for safekeeping.” The Court equated the purchase of a money order as equivalent to the purchase of any other product. “Buying a product is not depositing money for safekeeping. Customers buying a product are doing the opposite of keeping their money; they are spending it.”
    • The Court then rejected the argument that banks’ first-of-the-day transfer of funds to cover official checks was a “deposit” for safekeeping. “We recognize that because the financial institution still owns this first-day-settlement money, it is at least ‘keeping’ those funds with MoneyGram. The problem is that a financial institution[] is not leaving these funds with MoneyGram for safekeeping; it is doing so to fulfill a contractual requirement of using the check processing service.”

Unpublished

  • U.S. v. Dodd, 19-40926, appeal from E.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Delgado-Ramirez, 19-50879, appeal from W.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Bermudez-Rios v. Garland, 19-60929, petition for review of BIA order
    • per curiam (Barksdale, Graves, Oldham), immigration
    • Dismissing in part and denying in part El Salvadoran citizen’s petition for review of BIA order denying her motion to reopen and rescind her in absentia order of removal.
  • U.S. v. Olivares, 20-10102, appeal from N.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Darden v. Snow, 20-10296, appeal from N.D. Tex.
    • Costa, J. (Higginbotham, Jones, Costa), right to jury
    • Affirming judgment in favor of defendant in excessive force case, holding that there is no constitutional right to an attorney-led jury voir dire.
  • U.S. v. Orozco-Martinez, 20-10298, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Jones, 20-10367, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Tatum, 20-10430, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gomez, 20-10634, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cedano-Martinez, 20-10969, appeal from N.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Matteson, 20-10972, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cardenas, 20-11039, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Perez, 20-11127, appeal from N.D. Tex.
    • per curiam (Davis, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Garcia-Cruz, 20-20155, appeal from S.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Long v. Vannoy, 20-30046, appeal from W.D. La.
    • per curiam (Jones, Costa, Wilson), habeas corpus
    • Denying COA on denial of § 2254 petition for failure to make requisite showing that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.
  • U.S. v. Thomas, 20-40047, appeal from S.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez-Gonzalez, 20-40881, appeal from S.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Cano-Luna v. Garland, 20-60432, petition for review of BIA order
    • per curiam (Davis, Stewart, Dennis), immigration
    • Dismissing Mexican citizen’s petition for review of BIA order dismissing her appeal from an order of removal and the denial of her application for cancellation of removal.