August 23, 2021 opinions

Designated for publication

  • U.S. v. Moparty, 19-20797, appeal from S.D. Tex.
    • Jones, J. (Jones, Southwick, Costa), criminal, sentencing, sufficiency of evidence, harmless error
    • Affirming convictions and sentences of co-defendants for health care fraud, conspiracy to commit health care fraud, and money laundering. One co-defendant (Moparty) was sentenced to 108 months’ imprisonment; the other (Narang) was sentenced to 121 months’ imprisonment; they were jointly and severally liable for $2.6 million in restitution.
    • The co-defendants were indicted for a health care fraud conspiracy in which they would issue orders for unnecessary procedures or tests and bill them at higher hospital rates as performed at one co-defendant’s hospital facility even though they were performed at one of the other co-defendants’ internist offices; the scheme resulted in $20 million in fraudulent billing to insurers, who paid the hospital owner at least $3.2 million, which he split with the other two co-defendants through a series of financial transactions.
    • The Court held that there was no abuse of discretion in the district court’s denial of mistrial on the basis of two references to the fact that a third co-conspirator had pled guilty–one in opening statement that was unobjected-to and one during questioning of a prosecution witness that was objected-to and that prompted a cautionary instruction to the jury. The Court held that the fact that the reference occurred twice was not a sufficient aggravating factor to upset the general rule that jurors are presumed to follow the limiting instructions given to them by the judge. “On balance, given the strength of the curative instructions, the factors lean toward denying the motion for mistrial.”
    • The Court held there was no plain error in an agent’s unobjected-to testimony about “money laundering,” which the defendants argued was impermissible opinion testimony as to the ultimate issue of criminal intent. “While portions of Anderson’s testimony may have approached the line of permissible statements, this claim can be resolved on the third and fourth prongs of plain error,” i.e., effect on the defendant’ substantial rights and serious effect on the fairness, integrity, or public reputation of judicial proceedings. The Court held, “The challenged statements represent three snippets of testimony among a substantial number of documents and testimony from multiple witnesses.”
    • On a similar basis, the Court held that testimony by insurance company representatives, which the defendants challenged as impermissible expert opinion testimony, was harmless error, if it was error at all. Largely, the Court held that the insurance representatives’ testimony was permissible; “[t]o whatever small extent limited aspects of this testimony crept beyond the permissible bounds for a lay witness, there is no reasonable basis to find, in the context of the entire trial, that such testimony affected the verdict.”
    • The Court held there was sufficient evidence to support Moparty’s convictions, holding that there was substantial evidence, based on the fraudulent billing practices alone, that the co-defendants agreed to process insurance reimbursement claims through the hospital instead of through the internist’s office.
    • The Court also rejected Moparty’s cumulative-error challenge, holding that “Any mistakes must be measured against the weight of the evidence presented.”
    • The Court affirmed the application of the trust enhancement to Moparty’s sentencing level, because the district court’s finding was plausible in light of the record as a whole that Moparty had an ownership position in and significant control over the hospital entity that submitted the fraudulent billings.
    • The Court affirmed the “ten or more victims” enhancement to Narang’s sentencing level, holding that the patients whose records were used to justify the fraudulent billings were “victims” under the sentencing guidelines, and not just the three insurance companies to whom the billings were directed.
    • The Court ended its review with this cautionary note: “Though we find no reversible error under the King factors or otherwise, we do not condone the government’s conduct in this case. Throughout the course of the trial, the government, at best, was careless in the testimony it elicited from its witnesses, its missteps salvaged only by the district court’s repeated and forceful curative instructions. Even though the trial court found no bad faith, such heedless behavior is unacceptable. With this said, we find no reversible error of fact or law.”
  • Dickson v. U.S., 19-40932, appeal from E.D. Tex.
    • Higginson, J. (King, Higginson, Wilson), Federal Tort Claims Act, sovereign immunity
    • Affirming in part, reversing in part, and remanding for further proceedings, as to district court’s dismissal on sovereign immunity grounds of pro se plaintiff’s FTCA negligence and intentional tort claims arising from plaintiff’s time as a prisoner at the U.S. Penitentiary in Beaumont.
    • Plaintiff alleges that the Bureau of Prisons transferred him to USP Beaumont and housed him in the general population despite his expressed fear that he would be assaulted due to his convictions on child pornography charges. After he was assaulted, he was transferred to the Special Housing Unit; while there, he alleges that he was denied mental health treatment, law library access, administrative remedy forms, reading material, adequate clothing, and personal hygiene items. He alleges BOP staff “encouraged him to commit suicide, destroyed legal documents, poisoned his food, made disparaging sexual remarks, and housed him in a cell without clothing for extended periods of time”; that he attempted suicide after being denied access to psychological services to treat his suicidal thoughts; and that he was subsequently assaulted by another inmate in front of BOP staff who ignored the assault. The district court dismissed plaintiff’s negligence claims after concluding they were subject to the “discretionary function exception” to the FTCA’s sovereign immunity waiver; and dismissed his intentional tort claims upon holding that the FTCA’s intentional tort exception’s “law enforcement proviso” did not apply.
    • As to the plaintiff’s negligence claims, the Court held, “[T]he district court fairly construed his complaint as asserting that BOP officials acted negligently in transferring him to USP Beaumont and in housing him in the general population despite his concerns for his safety. And it correctly held that those challenged actions are encompassed by the discretionary function exception.”
    • As to the plaintiff’s intentional tort claims, the Court held that the district court erred in finding that the BOP staff, while they were law enforcement officers, were not engaged in law enforcement activities at the time of the alleged acts and were therefore not subject to the FTCA’s “law enforcement proviso.” “The problem with our holding in [the unpublished] Cross [decision]—and the district court’s reliance on it—is that the Supreme Court has since explicitly rejected this ‘status’ versus ‘activities’ distinction for purposes of the law enforcement proviso. In Millbrook, the Court made clear that only the former matters. 569 U.S. at 57.”
  • Hester v. Bell-Textron, Inc., 20-11140, appeal from N.D. Tex.
    • Engelhardt, J. (Dennis, Engelhardt, Hicks (by desig.), Family and Medical Leave Act
    • Reversing district court’s 12(b)(6) dismissal of plaintiff’s FMLA claims against employer, and remanding for further proceedings.
    • Plaintiff, a 21-year employee of the defendant, and who suffered from glaucoma and epilepsy, had suffered five grand mal seizures in a two-and-a-half-year period while caring for his wife, who suffers from stage-four cancer. In June 2018, a year after he was assigned to work under a new supervisor, he was given his first poor performance review, and then in October 2018 he was issued a “final warning” for a part that broke during a testing procedure. After being granted FMLA leave, he was fired by telephone by an HR employee on December 6, 2018, while he still had 5.4 weeks of FMLA time available for 2018 and would have twelve weeks in 2019.
    • The Court held that the district court erred in finding that the plaintiff had not adequately pled a causal link between his FMLA leave and his termination. “Hester sufficiently alleges a causal link between his termination and request for FMLA leave. There is certainly ‘temporal proximity’ between Hester’s termination and his FMLA leave, because Bell-Textron terminated him in the middle of his FMLA leave. Moreover, the fact that Bell-Textron provided non-FMLA reasons for Hester’s termination is not fatal to a prima facie causation showing, because Hester is not required to allege that his protected FMLA activity was the sole cause of his termination. Finally, Bell-Textron did not fire Hester at the time of his pre-leave workplace performance issues in June and October 2018, but rather waited until December 2018 to do so—approximately two months into Hester’s FMLA leave. As a pleading matter, the alleged timeline of events indicates that Bell-Textron’s termination decision was not ‘completely unrelated’ to the exercise of his FMLA rights.” (Internal citations omitted).
    • The Court held that the district court erred in finding that the plaintiff had failed to allege a claim that the defendant interfered with his exercise of the FMLA right to reinstatement at the end of his FMLA leave. “The district court erred by applying Shirley—a summary judgment case—to a Rule 12(b)(6) motion to dismiss. Shirley explained that the employer has an evidentiary burden on summary judgment to prove that the plaintiff would have lost his position even if he had not taken FMLA leave…. By requiring Hester to allege that he would not have been terminated had he not taken FMLA leave, the district court erroneously applied the employer’s evidentiary burden on summary judgment as a pleading burden that the plaintiff must satisfy to survive a Rule 12(b)(6) motion to dismiss.”

Unpublished

  • U.S. v. Ashley, 20-11189, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Moore, 20-11273, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Ho), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
  • Document Operations, L.L.C. v. AOS Legal Technologies, Inc., 20-20388, appeal from S.D. Tex.
    • per curiam (Dennis, Engelhardt, Hicks (by desig.)), trade secrets, breach of contract, fraud, breach of fiduciary duty, preliminary injunction
    • Vacating preliminary injunction in favor of plaintiff, and remanding for further proceedings consistent with Fed. R. Civ. P. 65(a)(1).
  • Wije v. U.S., 20-50070, appeal from W.D. Tex.
    • per curiam (Smith, Higginson, Willett), Federal Tort Claims Act
    • Dismissing as frivolous appeal from dismissal of FTCA claims against the Department of Education.
  • U.S. v. Ceballos, 20-50818, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Morales-Duran v. Garland, 20-60397, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Vacating prior panel decision, granting petition for review, and remanding to BIA to proceed in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
  • Le v. Garland, 20-60536, petition for review of BIA order
    • per curiam (Barksdale, Willett, Duncan), immigration
    • Denying Vietnamese citizen’s petition to review BIA denial as untimely his motion to reopen.
  • U.S. v. Aguilar-Hernandez, 21-10030, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Granting summary affirmance of 71-month sentence on conviction for illegal reentry.
  • U.S. v. Black, 21-10122, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Coleman v. Cardona, 21-10436, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), § 1983
    • Affirming dismissal of plaintiff’s § claims against Secretary of Department of Education arising from plaintiff’s student loans.
  • U.S. v. Medellin-Armendariz, 21-40068, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Alejandre-Sanchez, 21-40146, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.