May 12, 2022, opinions

Posted on by tadbartlett

Catching up on the blog after some non-stop over-drive briefing weeks, so both published and unpublished opinions will only contain summary disposition information and not the usual fuller descriptions.

Designated for publication

  • U.S. v. Perry, 17-30610, c/w U.S. v. Price, 17-30611, appeal from E.D. La.
    • Higginson, J. (Jones, Higginson, Duncan), criminal, sufficiency of evidence, Batson challenge
    • Affirming in part and vacating in part convictions of ten co-defendants on RICO and Violent Crimes in Aid of Racketeering counts, and firearms counts, all arising from the activities of the “39ers” association that sought to violently control the illegal drug trade in New Orleans’s Third and Ninth Wards.
    • The Court rejected sufficiency challenges based solely on the jury’s credibility determinations; rejected sufficiency challenges regarding the existence of the 39ers enterprise for the RICO counts; rejected the sufficiency challenges to the VICAR convictions; rejected the challenge to the denial of new trial motions; rejected an appeal regarding the admission of “shocking and gruesome” photographs; rejected a challenge to the admission of rap lyrics performed by one of the defendants; found the admission of an FBI agent’s summary testimony was harmless error; found no abuse of discretion in the limited sanctions imposed on the government with regard to ballistics testimony; rejected a challenge to the admission of expert ballistics opinion and testimony; found no clear error on a Batson challenge regarding two prospective jurors; found harmless error in a Bruton violation; found harmless error in hearsay elicited from an investigator; rejected challenges to the omission of certain proposed jury instructions; rejected a challenge to the jury instruction that were given; rejected a challenge to the denial of mistrial for one of the defendants; rejected challenges to comments in the closing argument; rejected challenges to the denial of a motion to sever some of the defendants; rejected Brady violation challenges; rejected Speedy Trial Act challenges, and rejected ineffective assistance of counsel and cumulative error challenges.
    • The Court vacated convictions on almost all of the § 924 firearms charges due to a faulty instruction that would have allowed the jury to convict on those charges if it found that a firearm was used to commit a RICO violation, which is not a “crime of violence” predicate act.
  • Engle v. Lumpkin, 19-40356, appeal from S.D. Tex.
    • Willett, J. (Willett, Engelhardt, Wilson), habeas corpus
    • Affirming denial of habeas petition challenging prosecutorial misconduct.
  • Pena-Lopez v. Garland, 20-60911, petition for review of BIA order
    • Richman, C.J. (Richman, Costa, Ho), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order affirming denial of motion to reopen in absentia removal proceeding under special rule for battered spouses.
  • Thomas v. Ameritas Life Insurance Corp., 21-30254, appeal from M.D. La.
    • Wilson, J. (Smith, Costa, Wilson), insurance
    • Affirming judgment for life insurance beneficiary on finding that life insurer was bound by agent’s errors and omissions.
  • U.S. v. Hamann, 21-50122, appeal from W.D. Tex.
    • Smith, J. (Smith, Costa, Wilson), criminal, hearsay
    • Vacating convictions based in part on testimonial hearsay of two nontestifying witnesses, and remanding.
  • Loftin v. City of Prentiss, 21-60611, appeal from S.D. Miss.
    • Jones, J. (Jones, Southwick, Oldham), § 1983
    • Affirming summary judgment for City and officers on plaintiff’s § 1983 false arrest claim based on his arrest for assault after he told officers that he had shot the victim in self-defense.

Unpublished

  • Burch v. Homeward Residential, Inc., 20-11057, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Ho), bankruptcy
    • Dismissing as frivolous appeal from district court’s dismissal of appeal from bankruptcy court for failure to pay filing fee.
  • Perez v. Garland, 20-60625, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order.
  • Santos-Garcia v. Garland, 20-60850, petition for review of BIA order
    • per curiam (Willett, Engelhardt, Wilson), immigration
    • Denying Honduran citizen’s petition for review of BIA order denying her appeal of an immigration judge’s (IJ) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Mantilla v. Garland, 20-60879, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying Cuban citizen’s petition for review of BIA order denying his claims for asylum and withholding of removal.
  • Lacan v. Garland, 20-61229, petition for review of BIA order
    • per curiam (Barksdale, Willett, Duncan), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for cancellation of removal.
  • U.S. v. Hawks, 21-10167, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), habeas corpus
    • Affirming denial of Rule 60 motion after denial of habeas petition.
  • U.S. v. Reyna, 21-11118, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Johnson v. Caroli, 21-20231, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), workers’ compensation
    • Affirming summary judgment in favor of employee on wrongful death claims brought against him by family of co-worker who died in car accident when defendant was driving, on basis that the personal injury claims were barred by the Texas Workers’ Compensation Act’s exclusive remedy provision.
  • Tutus, L.L.C. v. JLG Industries, Inc., 21-20383, appeal from S.D. Tex.
    • per curiam (Richman, Costa, Ho), personal jurisdiction
    • Affirming dismissal of business disparagement and tortious interference claims for lack of personal jurisdiction.
  • U.S. v. Castro-Lopez, 21-20420, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • U.S. v. Rivera-Salinas, 21-20607, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Pimentel-Soto, 21-40517, appeal from E.D. Tex.
    • per curiam (Barksdale, Costa, Engelhardt), criminal, sentencing
    • Affirming conviction and 105-month sentence for illegal reentry.
  • U.S. v. Karr, 21-50219, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming sentence on convictions for conspiracy and murder.
  • U.S. v. Onoimoimilin, 21-50630, appeal from W.D. Tex.
    • per curiam (Barksdale, Willett, Duncan), criminal, sentencing
    • Affirming 87-month sentence on conviction of conspiracy to commit money laundering.
  • U.S. v. Villegas, 21-50876, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming 70-month sentence on conviction of conspiracy to possess with intent to distribute less than 500 grams of cocaine.
  • U.S. v. Villegas, 21-50977, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Soto-Rueda, 21-51060, appeal from W.D. Tex.
    • per curiam (Southwick, Graves, Costa), habeas corpus
    • Denying COA from denial of § 2255 petition.
  • U.S. v. Pachedo-Apodaca, 21-51108, c/w 21-51110, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.