Take the Fifth

Designated for publication

• U.S. v. Sims, 19-20833, appeal from S.D. Tex.
  • Davis, J. (Davis, Haynes, Oldham), criminal, sentencing, sufficiency of evidence
  • Affirming conviction of defendant on sex trafficking a minor and conspiracy to sex traffic a minor, and imposition of life sentence; holding that there was sufficient evidence to support conviction, that district court did not improperly admit rap videos into evidence, and that there was no error in applying sentence enhancement for leadership role in the crime.
  • On the element of the defendant’s knowledge that the minor who was involved in the defendant’s prostitution ring was under 18 years old, the Court held that there was “sufficient evidence to conclude that Sims had a reasonably opportunity to observe Jane Doe,” which the Court characterized as a strict liability means to satisfy the knowledge element.
  • The Court held that the district court did not err in admitting videos of defendant’s rap act, over defendant’s Rule 403 objection, which videos depicted and glamorized the pimp lifestyle and misogyny. “The admissibility of rap videos is an issue of first impression in our circuit.” The Court agreed with “[t]he general conclusion from courts that have considered this type of evidence … that explicit rap videos are probative and outweigh substantial prejudice when the defendant performs the song, describes events closely related to the crime charged, and the evidence is not cumulative.” The Court found that all three elements were satisfied here.
  • The Court then held that there was no clear error in the district court’s application of the leadership role enhancement on sentencing.

• Madison v. ADT, L.L.C., 21-90028 c/w 21-10837, appeal from N.D. Tex.
  • Jones, J. (Jones, Duncan, Engelhardt), Class Action Fairness Act, removal, jurisdiction
  • Granting permission to appeal remand order under 28 U.S.C. § 1453(c), and reversing district court’s order to remand claims that had been removed under CAFA and that the district court had remanded under CAFA’s “home state” exception.
  • Under the “home state” exception to CAFA jurisdiction, “the court must abstain if two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.” (Internal quotation marks and citation omitted). Here, suit was originally brought against an ADT technician, Telesforo Aviles, and ADT subsequently intervened as a defendant and removed it. While Aviles is a “primary defendant” and is a Texas domiciliary, the question is whether ADT (not a Texas domiciliary) is also a “primary defendant.”
  • The Court held that one factor in the “primary defendant” analysis is whether the defendant is directly liable or would be vicariously or secondarily liable, but that this factor is not necessarily controlling “or the analysis would often be at odds with the Supreme Court’s admonition against adopting rules in the CAFA context that would exalt form over substance.” (Internal quotation marks and citations omitted). The Court held that another factor that is relevant is whether the defendant would be the one that would be expected to sustain the greatest loss if liability were found. “Madison and Dickson claim to represent a class of plaintiffs seeking millions in recovery for the invasion of their privacy, although, as of yet, they have asserted claims against only the offending employee (who is imprisoned). But the thrust of this suit is to gain access to ADT’s deep pockets, and ADT, having properly intervened, must be considered a primary defendant under CAFA.” So the Fifth Circuit has essentially created a “deep pockets” rule for “primary defendants” under CAFA.

Unpublished

• U.S. v. Gudipati, 19-40524, appeal from S.D. Tex.
  • per curiam (King, Dennis, Ho), criminal, sufficiency of evidence, sentencing
  • Affirming co-defendants’ convictions on money laundering and conspiracy. The Court held there was sufficient evidence to support the convictions; that the jury instructions did not constructively amend one defendant’s indictment; that the district court did not improperly calculate the loss attributable to another defendant at sentencing; that the defendants were not improperly sentenced before a district judge who did not preside over their trial; and that there was no error for sentencing in absentia.

• Espinal-Lagos v. Garland, 19-60787, petition for review of BIA order
  • Higginson, J. (Wiener, Elrod, Higginson), immigration
  • Granting petition to review BIA order, and reversing BIA’s decision denying request for BIA to remand removal proceeding to Immigration Judge pending resolution of U visa applications.

• U.S. v. Ashemuke, 20-11142, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
  • Affirming 60-month sentence on conviction of conspiring to engage in monetary transactions in property derived from specified unlawful activity, mail fraud, and wire fraud.

• U.S. v. Howell, 20-40687, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing, supervised release
  • Affirming mental-health special condition of supervised release as part of sentence on conviction of two counts of distribution of child pornography and one count of possession of child pornography.

• U.S. v. Fearce, 20-50699, appeal from W.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, First Step Act
  • Affirming denial of motion for sentence reduction under the First Step Act.

• Hampton v. Tunica County, 20-60232, appeal from N.D. Miss.
  • per curiam (King, Costa, Ho), prisoner suit
  • Dismissing as frivolous appeal from dismissal of § 1983 claim alleging a conspiracy behind his arrest and conviction.

• Cornejo-Fernandez v. Garland, 20-60240, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order dismissing their appeal from an Immigration Judge’s (IJ) order denying asylum and withholding of removal.

• Ramirez v. Garland, 20-60726, petition for review of of BIA order
  • per curiam (Higginbotham, Higginson, Duncan), immigration
  • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order dismissing his appeal of an immigration judge’s (IJ) denial of asylum, withholding of removal, and protection under the CAT.

• U.S. v. Ramirez-Rodriguez, 21-40033, appeal from S.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Houston, 21-50006, appeal from W.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Jefferson, 21-60250, appeal from S.D. Miss.
  • per curiam (King, Costa, Ho), criminal, sentencing
  • Affirming 24-month sentence on revocation of supervised release.

• Irving v. Wilco Life Insurance Co., 21-60400, appeal from N.D. Miss.
  • per curiam (King, Costa, Ho), insurance
  • Affirming summary judgment dismissal in favor of defendant in insurance coverage dispute.