February 8, 2022, opinions

Designated for publication

  • U.S. v. Crittenden, 18-50635, appeal from W.D. Tex.
    • Elrod, J. (Dennis, Elrod, Costa), Costa, J., dissenting; criminal, new trial
    • Finding no abuse of discretion in district court’s order of a new trial upon a finding that “though the evidence was sufficient to support a conviction, the court had cautiously reweighed the evidence and found that it preponderated heavily against Crittenden’s guilt. Specifically, the district court concluded that the evidence failed to show that Crittenden had knowledge of the nature of the controlled substance he possessed—as was required to convict him of possessing methamphetamine with the intent to distribute. Thus, the district court had concluded that it would be a miscarriage of justice to let the verdict stand.”
    • Judge Costa dissented to emphasize the sanctity of jury decisions. “The Constitution twice says that juries decide criminal cases. U.S. CONST. art. III, § 2, cl. 3; id. amend. VI. The jury right’s reappearance in the Sixth Amendment is no mere encore. The Bill of Rights includes the jury right among many guarantees for criminal defendants, whereas Article III requires juries as a structural protection. This original jury requirement ensures that unelected judges are not the only actors in our judiciary. … [T]he jury right is as much about jurors as it is about defendants.” Here, Judge Costa would have found that “[b]eaucoup evidence shows that Crittenden knew he possessed a controlled substance[.]”
  • JetPay Corp. v. U.S. Internal Revenue Service, 21-10131, appeal from N.D. Tex.
    • Southwick, J. (Clement, Southwick, Willett), tax law, sovereign immunity
    • Affirming district court’s holding that credit card processing company was not the proper party to seek a refund of federal excise taxes paid by airline customers but later reimbursed to those customers by the company, and that plaintiff was therefore not within the limited waiver of sovereign immunity extended to suits against the IRS by taxpayers.
    • The Court held that the credit card processing company was not the entity that paid the excise tax to the IRS, because it actually first remitted the excise tax amounts to the charter airline company, which then paid the tax to the IRS. “JetPay, unlike the plaintiffs in those cases, is not seeking a refund for taxes the company itself paid so much as it is seeking to hold the IRS responsible for Direct Air’s failure to hold up its end of the bargain. JetPay is neither a customer required to pay the tax before taking a flight nor an airline required to collect it.”
    • The Court also held that the economic burden test did not allow the credit card processing company to bypass the statute’s express provisions regarding proper party. “[T]he economic burden test does not allow a boundless search for abstract cost-carrying of a tax by a litigant. Instead, we have applied the test under a specific set of circumstances: when an entity is contesting the applicability of the statute to its services but, out of an abundance of caution, chooses to pay the IRS itself rather than attempt to collect the tax from its customers.”
    • The Court then held that the credit card processing company was not equitably subrogated to the refund rights of the individual taxpayers when it refunded the excise tax money to them.


  • U.S. v. Casel, 21-10607, appeal from N.D. Tex.
    • per curiam (Barksdale, Willett, Duncan), criminal, sentencing
    • Affirming 175-month sentence on conviction of attempted child sex trafficking.
  • U.S. v. Marzioli, 21-40290, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Moran-Munoz, 21-50311, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.