Take the Fifth

Designated for publication

• U.S. v. Trujillo, 20-10679, appeal from N.D. Tex.
  • Ho, J. (King, Dennis, Ho), criminal, sentencing
  • Reforming judgment to reflect the conviction for illegal reentry after removal should be pursuant to 18 U.S.C. § 1326(b)(1) for illegal reentry after a conviction for a felony other than an aggravated felony, rather than under 18 U.S.C. § 1326(b)(2) for illegal reentry after a conviction for an aggravated felony.
  • The Court held that the district court erred in proceeding to a conviction under (b)(2), because the Texas crime of intoxication manslaughter is not a “crime of violence” and therefore not an “aggravated felony.” However, the Court held this was not plain error requiring vacatur and remand for resentencing. Although the maximum sentence for a (b)(2) conviction is twenty years and the maximum sentence for a (b)(1) conviction in ten years, defendant’s sentence was for 78 months, below the maximum for the (b)(1) conviction. Accordingly, the Court held that the district court’s error in convicting under (b)(2) did not affect the defendant’s substantive rights and therefore was not plain error.

• Hammervold v. Blank, 20-40578, appeal from E.D. Tex.
  • Smith, J. (Owen, Smith, Graves), res judicata
  • Reversing district court’s dismissal of suit for malicious prosecution, abuse of process, and civil conspiracy on res judicata grounds, and remanding for further proceedings.
  • Plaintiff had been the plaintiffs’ attorney against defendants in a series of consumer protection suits. Defendants then brought a RICO claim against plaintiff claiming that plaintiff had used the consumer protection claims to try to extort money from defendants. After protracted litigation, they voluntarily dismissed the RICO suit. Plaintiff here (defendant there) brought a motion for attorneys’ fees, arguing the common law bad faith exception to the American Rule; the court in that case denied the motion for fees, finding that the RICO plaintiffs (defendants here) had acted appropriately in that litigation and that the claims were not in bad faith as they had survived the motion to dismiss stage. Plaintiff subsequently brought this suit, and the district court dismissed it on res judicata grounds, holding that the basis for the denial of his fee motion in the prior suit precluded his success on the malicious prosecution and other claims in this suit.
  • The Court held that the third element of res judicata under Texas law–that the present claims have been actually raised, or could have been actually raised, in the prior suit–was not met here. “Though Hammervold’s claims for attorney’s fees involve similar elements and factual bases as do his current claims, they are not literally the same claim, such that we could say the claims were actually raised.” The Court held, also, that they could not have been raised in the prior suit, because they only arose after judgment in the prior suit, such that he only had the fee motion available in that litigation post-judgment.
  • The Court also held that collateral estoppel did not apply, because the issues in the fee motion and in the present claim were not identical, in that they do not involve the same legal standard or burden of proof. “Hammervold’s claims for attorney’s fees under § 1927 and the common law bad-faith exception had to be proven by clear and convincing evidence. … Hammervold’s claims for malicious prosecution and abuse of process, on the other hand, have to be proven only by preponderance of the evidence.” The Court also held that the distinction between the first court’s finding that the defendants did not prosecute the first suit in bad faith is not the same as a finding that they acted in good faith. “An affirmative factual finding that Diamond Doctor brought the suit in good faith might have preclusive effect. But the failure to find that it acted in bad faith bakes in the clear-and-convincing-evidence standard discussed above. And, just because the first court did not find bad faith on a clear-and-convincing-evidence standard, that does not preclude the current court from finding bad faith by a preponderance of the evidence.”

• U.S. v. Brocato, 20-40624, appeal from E.D. Tex.
  • per curiam (King, Dennis, Ho), criminal, sentencing, recusal
  • Affirming 33-month sentence on convictions of conspiracy to commit tax fraud and filing false returns, finding that the district court did not err in denying a pre-sentencing motion to recuse. “Although we think that certain statements of the district court judge were ill-advised and certain actions of her staff were improper, we nonetheless AFFIRM because, after a thorough review of the record, we conclude that there was no actual bias or reasonable question as to the judge’s impartiality in this case that would require recusal.”
  • The district court had informed counsel during jury charging that her staff had done an internet search that revealed information suggesting one of the co-defendants had committed perjury, so she informed counsel not to mention the issue that was the subject of the perjury during closing arguments, and after the conviction the judge increased the defendants’ pre-sentencing bond obligation. The defendants then moved to recuse the district court judge prior to sentencing, which she denied.
  • The Court held that there was no actual bias or impact on the judge’s impartiality on the record.

• Lindsay v. U.S., 20-50994, appeal from W.D. Tex.
  • Stewart, J. (Higginbotham, Stewart, Wilson), tax
  • Affirming district court’s granting of IRS’s motion to dismiss taxpayer’s claim that he was entitled to “reasonable cause” exception to mandatory penalties.
  • Plaintiff taxpayer had issued a power of attorney to another person to take care of his tax filings and finances while he was incarcerated. That person did not pay his taxes, but embezzled hundreds of thousands of dollars. After plaintiff got out of prison, he paid the back-taxes, interest, and penalties, then brought suit to recover the penalties on the basis that his incarceration was a “disability” providing him reasonable cause for the failure to timely pay taxes.
  • The Court noted that United States v. Boyle, 469 U.S. 241 (1985) “established that taxpayers have a non-delegable duty to promptly file and pay their taxes.” While the Court expressed sympathy for Lindsay’s circumstance, it held, “Lindsay could have used ordinary business care and prudence to assure that his taxes were filed and paid, much like he conducted business and employed a CPA while incarcerated. Lindsay failed to act with such care, and we affirm the district court’s dismissal accordingly.”

• Freedom from Religion Foundation, Inc. v. Mack, 21-20279, appeal from S.D. Tex.
  • Oldham, J. (Higginbotham, Smith, Oldham), First Amendment, Establishment Clause
  • Granting stay pending appeal to defendant justice of the peace appealing from district court’s judgment that he violated the Establishment Clause “by allowing volunteer chaplains to perform brief, optional, and interfaith opening ceremonies before court sessions.”
  • The Court first held that the district court erred in maintaining the claim against the judge in his official capacity, as that claim was barred by sovereign immunity, and the Ex parte Young exception did not apply because he was a county official and not a state official.
  • As to the claim against the judge in his individual capacity, the Court held that he demonstrated a likelihood of success on the merits because “Judge Mack’s chaplaincy program raises fewer questions under the Establishment Clause [than the practice of chaplains opening legislative sessions, which has been upheld by the courts] because it uses zero tax dollars and operates on a volunteer basis. … It’s true that Marsh and Town of Greece involved a legislature’s chaplains, not a justice of the peace’s chaplains. But it’s unclear why that matters, given the abundant history and tradition of courtroom prayer. Since at least the Marshall Court, for example, the Supreme Court has opened its sessions with some variant of ‘God save this Honorable Court.'”
  • The Court also rejected the plaintiff’s argument that Judge Mack’s opening ceremonies were coercive, as he invited anyone in the courtroom to leave during the ceremony and that they would be informed when it was over so they could reenter. “It’s undisputed that Judge Mack by contrast has taken multiple steps (including oral and written instructions) to facilitate non-participation in his opening ceremonies. Moreover, it’s undisputed that Judge Mack’s opening ceremonies are open to chaplains of all faiths—not just Christians.”
  • The Court then held that Judge Mack would be irreparably injured unless the stay is issued because “the district court’s declaration treads on important federalism principles,” and because “the Texas State Commission on Judicial Conduct has made clear that it intends to pursue its ‘Inquiry’ against Judge Mack while his appeal is pending.”
  • The Court next held that “any injury to FFRF is outweighed by Judge Mack’s strong likelihood of success on the merits.”
  • Finally, the Court held that the public interest was served by ensuring a proper application of the First Amendment.

Unpublished

• Abshire v. Mailroom, Raymond Laborde Correctional Center, 19-30468, appeal from W.D. La.
  • per curiam (King, Dennis, Ho), prisoner suit
  • Vacating district court’s dismissal of prisoner’s First and Fourteenth Amendment claims arising from denying him access to his mail, and remanding for further proceedings.

• U.S. v. Lopez-Villanueva, 19-41000, appeal from S.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Quiroz-Lozano, 19-50939, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Mendoza, 20-10209, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Jimenez v. Lumpkin, 20-10221, appeal from N.D. Tex.
  • per curiam (King, Smith, Higginson), prisoner suit
  • Remanding suit to district court to issue judgment on motion for reconsideration.

• U.S. v. Dennis, 20-10731, appeal from N.D. Tex.
  • per curiam (Elrod, Oldham, Wilson), habeas corpus
  • Denying certificate of appealability from district court’s dismissal of § 2255 petition.

• U.S. v. Mondragon-Gonzalez, 20-20266, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Rucker, 20-40270, appeal from E.D. Tex.
  • per curiam (Higginbotham, Costa, Enghelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Dorsey, 20-40495, appeal from E.D. Tex.
  • per curiam (King, Costa, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Trudeau v. University of North Texas, 20-40532, appeal from E.D. Tex.
  • per curiam (King, Dennis, Ho), Title IX, employment discrimination
  • Affirming dismissal of plaintiff’s Title IX, First Amendment, Fourteenth Amendment, and Due Process claims arising from investigation substantiating claims of sexual harassment against plaintiff.

• U.S. v. Meyer, 20-40562, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Gutierrez-Gomez, 20-40603, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Solorzano-Gonzalez, 20-40783, appeal from S.D. Tex.
  • per curiam (King, Costa, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Gonzalez-Medina, 20-40868, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Freeman, 20-50181, appeal from W.D. Tex.
  • per curiam (Ho, Oldham, Wilson), criminal, sentencing
  • Withdrawing June 25 decision that had affirmed conviction and vacated sentence, and issuing new opinion affirming both the conviction for possession of a firearm by a felon and the 96-month sentence.