February 2, 2022, opinions

Designated for publication

  • U.S. v. Swenson, 20-20509, appeal from S.D. Tex.
    • King, J. (King, Costa, Willett), criminal, sentencing, restitution, sufficiency of evidence
    • Affirming conviction of mail fraud, sentence, and restitution award.
    • The Court held that there was sufficient evidence to support the conviction on count of mail fraud (the jury had found defendant not guilty on two counts of wire fraud and the district court had ordered an acquittal on another count of mail fraud). The defendant ran an adoption agency, and the fraud counts were based on the double-matching of multiple potential adoptive families with one birth mother. The Court found that the testimony of both adoptive families and the birth mother “reasonably supports the finding that Swenson told both the Neidriches and the Cuschieris at the same time that they were each matched with Smolt, and thus would be able to adopt her child. The physical impossibility of both families being able to adopt one single child, absent some Solomonian situation, renders this statement false. There was also sufficient evidence that Swenson made those false statements to obtain something of value—the adoption and birth-mother fees—and to deprive the Neidriches and the Cuschieris of the same.”
    • The Court also found that there was sufficient evidence such that “it was eminently reasonable” for the jury to make the requisite findings regarding the use of the mails to perpetrate the fraud, and that the defendant had the specific intent to defraud. “To satisfy the intent requirement, the defendant need only have intended that her scheme either lead her to gain something of value or lead another to lose something of value. To prove intent, the scheme does not have to actually have worked. If a defendant conceives of a scheme to sell nonexistent oil wells in her backyard, and solicits a check from a person for the purchase of one of the wells, then the defendant has acted with the intent to commit mail fraud; that remains true whether the victim puts a stop on the check or if the defendant decides not to cash the check.”
    • The Court affirmed the district court’s application of the vulnerable victim enhancement in calculating the defendant’s sentence. “The victims of mail fraud … will run the gamut of susceptibility depending on the nature of a given scheme. And it was well within the district court’s purview to find that these families who had invested ‘extraordinary hope’ into the adoption process, who were ‘desperat[e]’ to bring a child into their family, would demonstrate an unusual vulnerability which is present in only some victims of that type of crime.” (Internal quotation marks and citation omitted).
    • The Court affirmed a restitution award that included within its amount a check paid by one of the families that had been the subject of the mail fraud count for which the district court had acquitted the defendant. “Here, as one of the two families matched with Smolt, the Cuschieris are identifiable victims of Swenson’s scheme. Because the June payment of the $13,400 agency fee was rolled over to the fraudulent Smolt adoption, it was a loss and a direct harm that the Cuschieris suffered as a result of ‘actions pursuant to [Swenson’s] scheme.'”


  • U.S. v. Matthews, 18-10235, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Costa), criminal, sentencing, Armed Career Criminal Act
    • On remand from the U.S. Supreme Court, affirming 265-month sentence for being a felon in possession of a firearm, finding under Borden v. United States, 141 S. Ct. 1817 (2021), that a Texas robbery-by-threat conviction is an ACCA predicate violent felony.
  • Ziretsyan v. Garland, 20-60643, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Armenian citizen’s petition for review of BIA order upholding the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Million v. Cos-Mar Co., 21-30250, appeal from M.D. La.
    • per curiam (Owen, Clement, Engelhardt), timeliness
    • Affirming dismissal of complaint raising claims of tortious workplace conduct, holding that one-year prescriptive period had not been tolled by prior-filed lawsuit asserting similar claims against other defendants.
  • U.S. v. Dominguez, 21-50442, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming 63-month sentence on conviction of one count of importation of 500 grams or more of methamphetamine and one count of possession with intent to distribute 500 grams or more of methamphetamine.
  • Brown v. Old Dominion Freight Line, Inc., 21-60608, appeal from S.D. Miss.
    • per curiam (Jones, Haynes, Costa), employment discrimination
    • Affirming summary judgment dismissal of plaintiff’s racial discrimination claims against employer.