Designated for publication
- U.S. v. Gaspar-Felipe, 19-50997, appeal from W.D. Tex.
- Duncan, J. (Jones, Costa, Duncan), criminal, sentencing, Confrontation Clause, sufficiency of evidence
- Affirming convictions and 78-month sentence for defendant’s role in an alien smuggling operations in which the person being smuggled died.
- The Court held that there was no Confrontation Clause violation in the trial court’s admission of the video-taped depositions of two witnesses who had been deported between their depositions and trial. The Court found that the government made multiple good-faith efforts to secure the deported witnesses’ presence at trial, such that the district court did not err in finding them to be “unavailable.”
- The Court then held that the district court’s jury instruction on the term “commercial advantage,” specifically the portion of that instruction that “[t]he government need not prove that the defendant was going to directly financially benefit from his part in the venture,” was a correct statement of the law in the Fifth Circuit. “§ 1324’s financial-purpose element may be proven through circumstantial evidence that someone in the operation would be paid and, consequently, that the defendant would receive some of that payment.”
- The Court then analyzed the record and held that there was sufficient evidence to support the verdict on the transportation counts and on the financial-purpose element.
- The Court held that the district court did not err in declining to apply the acceptance of responsibility downward adjustment to defendant’s sentence, where the defendant did not plead guilty and put the government to its proof burden.
- The Court held that the district court did not err in applying the ten-level enhancement to account for the death of one of the migrants during the police chase. The Court held that the only link between the defendant’s conduct and the death required under Fifth Circuit precedent is a simple but-for analysis, without need to analyze foreseeability or a stricter proximate cause connection.
- Spectrum Association Management of Texas, LLC v. Lifetime HOA Management LLC, 20-50604, appeal from W.D. Tex.
- Engelhardt, J. (Dennis, Engelhardt, Hicks (by desig.)), Lanham Act, trademark infringement, attorneys fees, Anti-Cybersquatting Consumer Protection Act
- Affirming the district court’s judgment in favor of plaintiff on trademark infringement claims under the Lanham Act and under the Anti-Cybersquatting Consumer Protection Act (“ACPA”), affirmed the award of $100,000 in statutory damages under the ACPA, and reversed the district court’s denial of attorneys’ fees under the Lanham Act and remanded for determination of a fee award.
- The Court first held that the district court did not abuse its discretion in admitting the deposition testimony of a former partner of the defendant. The witness lived in San Antonio, the division where the case was originally assigned, but the trial was instead conducted in the Waco division, more than 100 miles from San Antonio. “[T]he plain text of Rule 32(a)(4)(B) is clear that ‘the place of trial’ is the courthouse where trial takes place.” The Court also held that the defendants were not prejudiced by the transfer of the trial venue from San Antonio to Waco, which was announced three and a half months prior to trial.
- The Court held that the statutory damages award under the ACPA was proper, where the ACPA provides, “the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits, an award of statutory damages in the amount of not less than $1,000 and not more than $100,000 per domain name, as the court considers just.” 15 U.S.C. § 1117(d). The Court cited the following findings as supporting the maximum statutory award: “Spectrum and Lifetime directly compete to provide the same type of services in San Antonio. In addition, the record confirms that the Lifetime Defendants violated Spectrum’s trademarks willfully and in bad faith by engaging in the following conduct: establishing Lifetime as Spectrum’s competitor while Tuttle was under his non-compete agreement with Spectrum; registering the Infringing Domain with prior knowledge of Spectrum’s trademarks; purchasing the Infringing Domain in the hopes of eventually selling it to Spectrum for a profit; and setting up the Infringing Domain to confuse and divert internet users who sought Spectrum’s services. The Lifetime Defendants demonstrated further willfulness during the underlying lawsuit by showing a disregard for their submission of inconsistent, misleading, and inaccurate answers to written discovery. Additionally, the Lifetime Defendants’ bad-faith conduct continued after trial, when they blatantly copied text from Spectrum’s copyright-protected web pages for use on Lifetime’s website. Finally, there is no record evidence that the Lifetime Defendants offered to transfer the Infringing Domain to Spectrum.”
- The Court held that this same set of conduct rendered this an “exceptional” case justifying an attorney fee award under the Lanham Act.
Unpublished
- U.S. v. Cordero, 19-51050, appeal from W.D. Tex.
- per curiam (Graves, Willett, Duncan), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Melendez v. Garland, 19-60868, petition for review of BIA order
- per curiam (Barksdale, Graves, Oldham), immigration
- Denying Honduran citizens’ petitions for review of BIA order denying relief from IJ decision denying asylum, withholding of removal, and protection under the Convention Against Torture.
- U.S. v. Guerra-Sanchez, 20-10946, appeal from N.D. Tex.
- per curiam (Clement, Ho, Oldham), criminal, sentencing
- Dismissing as a breach of appeal waiver in guilty plea the defendant’s appeal of his sentence on his guilty plea to conspiring to distribute and possess with intent to distribute a mixture or substance containing 500 grams or more of methamphetamine.
- U.S. v. Lopez, 20-11073, appeal from N.D. Tex.
- per curiam (Graves, Willett, Duncan), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Rombach v. Culpepper, 20-30554, appeal from E.D. La.
- per curiam (Clement, Haynes, Wilson), qualified immunity
- Affirming qualified immunity dismissal of plaintiffs’ claims arising from the death of a state custody inmate being held in the Bogalusa city jail.
- Bailey v. France, 20-30594, appeal from E.D. La.
- per curiam (Owen, Smith, Graves), Americans with Disabilities Act
- Affirming dismissal of plaintiff’s ADA claims that he was not provided program access to New Orleans Saints games.
- U.S. v. Sells, 20-40478, appeal from E.D. Tex.
- per curiam (Graves, Willett, Duncan), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Gatson, 20-40503, appeal from E.D. Tex.
- per curiam (Wiener, Southwick, Oldham), criminal
- Affirming conviction of defendant on firearms possession charges, holding that there was no reversible error in the district court’s admission into evidence of defendant’s Facebook posts showing firearms not involved in the charge.
- U.S. v. Ramirez, 20-50511, appeal from W.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Ricketts v. Garland, 20-60806, petition for review of BIA order
- per curiam (Haynes, Ho, Wilson), immigration
- Denying petition for review of BIA’s administrative reinstatement of prior order of removal.
- U.S. v. Vasquez-Ramos, 21-40064, appeal from S.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal
- Granting Anders motion for withdrawal, and dismissing appeal.
- U.S. v. Nunez-Ugarte, 21-50080, appeal from W.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal, sentencing
- Granting summary affirmance of 37-month sentence on conviction of illegal reentry after deportation.
- Bowen v. Bergami, 21-50142, appeal from W.D. Tex.
- per curiam (Barksdale, Graves, Oldham), habeas corpus
- Affirming dismissal of § 2241 petition for failure to exhaust administrative remedies.
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