October 11-17, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Hankton, 16-30995, appeal from E.D. La.
    • Wilson, J. (Dennis, Southwick, Wilson), Dennis, J., dissenting in part; criminal, sufficiency of evidence, restitution, competence, severance, search and seizure, Brady violation
    • Affirming in part, vacating in part, and remanding for further proceedings on convictions and sentences arising from RICO conspiracy, drug trafficking, firearms, and murder charges related to violent gang activity.
    • The Court vacated the codefendants’ firearms convictions, because the jury was not instructed to specify a finding as to whether they were related to the RICO conspiracy or the drug trafficking conspiracy, and remanded for further proceedings. “It was a ‘clear and obvious’ error to permit the jury to convict Andre and Porter under § 924 without specifying which conspiracy was the predicate offense.”
    • The Court vacated a restitution order issued related to the defendants’ role in shooting a daquiri shop owner, because “their RICO conspiracy convictions do not constitute a crime of violence” under the Mandatory Victims Restitution Act.
    • The Court held there was no reversible error in the district court’s denial of a motion to suppress a witness identification from a photo array as improperly suggestive.
    • The Court held there was no error in the admission of a recorded statement and later grand jury testimony identifying Telly as the shooter in one murder, where the identifying witness was later also murdered.
    • The Court held there was no error in admission of a rap video that referenced one of the shootings and featured one of the codefendants.
    • The Court held that Telly was not prejudiced by the in-trial disclosure of a statement by a witness that he had been convinced to lie by another witness, in order to impeach that second witness’s testimony implicating Telly in a murder.
    • The Court found no error in the district court’s rulings regarding one defendant’s competence proceedings.
    • The Court found no abuse of discretion in the district court’s denial of the defendants’ motions to sever.
    • The Court held that there was sufficient evidence to support the RICO and VICAR convictions.
    • Judge Dennis dissented in part, only as to whether there was sufficient evidence to support Andre’s conviction for firearms possession intended to further a drug trafficking offense.
  • Pierre v. Hooper, 19-30737, appeal from E.D. La.
    • per curiam (Smith, Duncan, Oldham), habeas corpus
    • Vacating “procedural-only” COA as barred by 28 U.S.C. § 2253, and dismissing appeal of denial of § 2254 petition.
  • Hamilton v. Dallas County, 21-10133, appeal from N.D. Tex.
    • per curiam (Richman, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.); Title VII
    • Vacating Court’s August 3, 2022, opinion affirming 12(b)(6) dismissal of plaintiff’s Title VII claim on basis that she had failed to plead an adverse employment action, and ordering en banc rehearing.
  • Ultra Petroleum Corp. v. Ad Hoc Committee of OpCo Unsecured Creditors, 21-20008, appeal from Bankr. S.D. Tex.
    • Elrod, J. (Jolly, Elrod, Oldham), Oldham, J., dissenting; bankruptcy
    • Affirming bankruptcy court’s granting of creditors’ objections to the debtor’s proposed restructuring, where debtor became “supremely solvent” during the course of the bankruptcy proceedings, holding that, while the Bankruptcy Code disallowed a “make-whole amount” as the equivalent of unmatured interest, the solvent-debtor exception nevertheless applied and demanded that the debtor “pay what it promised now that it is financially capable”; additionally, the Court held that, “given Ultra’s solvency, post-petition interest is to be calculated according to the agreed-upon contractual rate” rather than the lower Federal Judgment Rate.
    • Judge Oldham dissented. He would hold that “clear statutory text” has abrogated the unwritten solvent-debtor exception. “Neither the solvent-debtor exception’s historical pedigree nor its policy underpinnings–no matter how compelling–can overcome Congress’s clear, and clearer-than-ever, command on this point.”
  • Henderson v. Harris County, 21-20544, appeal from S.D. Tex.
    • per curiam (Smith, Duncan, Oldham), qualified immunity, municipal liability
    • Affirming summary judgment dismissal of Fourth Amendment claims against officer for use of taser, and 12(b)(6) dismissal of municipal liability claims against county.
    • The Court held there was no clearly established law prohibiting the officer’s employment of his taser. “Henderson concededly ran from police, then stopped suddenly and turned toward the pursuing officer. Thus, neither Newman nor Darden involves materially similar facts and thus cannot clearly establish the law.”
  • D&J Investments of Cenla, L.L.C. v. Baker Hughes a G E Company, L.L.C., 21-30523, appeal from W.D. La.
    • Davis, J. (Davis, Elrod, Haynes), Haynes, J., dissenting in part; improper joinder, removal jurisdiction
    • Reversing district court’s holding that Louisiana Department of Environmental Quality was improperly joined as defendant in contamination suit due to its failure to warn nearby property owners of contamination from the site, and remanding with instructions to remand to state court. The Court held that, under its standard for determining improper joinder, where there was ambiguity in the controlling state law in the plaintiffs’ favor, the removing defendants would fail to meet their burden of proving improper joinder.
    • Judge Haynes dissented in part. She would have held that violations of duties imposed by Louisiana regulations could not form the basis of a tort duty.
  • Jones v. Administrators of Tulane Educational Fund, 21-30681, appeal from E.D. La.
    • Clement, J. (Smith, Clement, Haynes), Haynes, J., dissenting in part; COVID-19, breach of contract, unjust enrichment
    • Reversing 12(b)(6) dismissal of students’ claims for partial refund of tuition and fees after university switched to online, off-campus instruction in response to the COVID-19 pandemic, and remanding for further proceedings.
    • The Court held that the students’ breach of contract claim was not barred as a claim of educational malpractice because they did not challenge the quality of the education received but the actual product received.
    • The Court held that the breach of contract claim was not foreclosed by an express agreement.
    • The Court held that, while there was no express contractual provision applicable, the students “have plausibly alleged implied-in-fact promises for in-person instruction and on-campus facilities.”
    • The Court also held that the students had plausibly pled a claim for unjust enrichment in the alternative.
    • The Court held that the students plausibly pled a claim for conversion.
    • Judge Haynes dissented in part. Other than the students’ claims related to pre-paid, mandatory fees, Judge Haynes would have held that the students’ tuition claims were barred under Louisiana law due to the discretion afforded educational administrators regarding how to deliver educational services.
  • U.S. v. Arthur, 21-50607, appeal from W.D. Tex.
    • Higginson, J. (Davis, Dennis, Higginson), Dennis, J., dissenting in part; criminal, sentencing
    • Affirming in part and reversing in part conviction and 480-month sentence for producing, distributing, receiving, and possessing an obscene visual depiction of a minor engaged in sexually explicit conduct; using an interactive computer service to transport obscene matters; and engaging in the business of selling or transferring obscene matters; and remanding for resentencing.
    • The Court found no plain error in the district court’s denial of the defendant’s request for a copy of the charged materials.
    • The Court upheld the district court’s Miller jury instructions.
    • The Court held that the failure of 18 U.S.C. § 1466A(a)(1) to require the depiction of “real” minors did not render it unconstitutional, as it required charged imagery to be “obscene,” which is independently unprotected by the First Amendment.
    • Applying the Miller test, the Court held that all of the charged material except for one image met the test for obscenity; so the Court reversed only the count of conviction related to that one image.
    • The Court held that the district court abused its discretion in excluding the expert testimony of a licensed clinical psychologist and sex therapist who intended to testify about the literary, artistic, and scientific value of the charged stories and images; however, the Court held that this did not affect the substantial rights of the defendant.
    • Judge Dennis dissented in part. He disagreed that the exclusion of the defendant’s expert–the defendant’s entire case–was harmless. Accordingly, he would hold that “the record is insufficiently developed to conduct a de novo review of [defendant’s] Miller challenge to the charged material in the remaining counts.

Unpublished

  • Ndudzi v. Garland, 20-60782, petition for review of BIA order
    • Graves, J. (Higginbotham, Dennis, Graves), immigration
    • Granting Angolan citizen’s petition for review of BIA order denying appeal of IJ’s application for asylum, withholding of removal, and protection under the CAT; and remanding.
  • U.S. v. White, 21-10839, appeal from N.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal, sentencing
    • Affirming 168-month sentence on conviction of conspiracy to possess with intent to distribute methamphetamine.
  • U.S. v. Galarza, 21-10925, appeal from N.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Musgraves, 21-10947, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming sentence on conviction of possession of child pornography involving a prepubescent minor.
  • Ukpong v. International Leadership of Texas, 21-11111, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Engelhardt), employment discrimination, Title VII
    • Affirming summary judgment dismissal of employment discrimination on sovereign immunity and timeliness grounds.
  • U.S. v. Guerrero-Ortiz, 21-20191, appeal from S.D. Tex.
    • per curiam (Southwick, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Smith v. Linthicum, 21-20232, appeal from S.D. Tex.
    • Engelhardt, J. (King, Duncan, Engelhardt), Duncan, J., dissenting in part; prisoner suit, qualified immunity
    • Affirming denial of qualified immunity summary judgment to prison medical officials in Eighth Amendment claims arising from denial of pain-alleviating treatments to prisoner with rare pain-causing medical condition.
    • Judge Duncan dissented in part. He would find that there is no violation of clearly established law and would dismiss all claims except for injunctive relief.
  • June Medical Services, L.L.C. v. Phillips, 21-30001, appeal from M.D. La.
    • per curiam (Smith, Elrod, Oldham), sealed documents
    • Remanding with instructions to the district court regarding sealing of documents.
  • Allen v. Kijakazi, 21-30771, appeal from W.D. La.
    • per curiam (Jones, Southwick, Ho), social security
    • Affirming judgment that plaintiff was not entitled to social security benefits.
  • Martinez v. Nueces County, 21-40209, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), prisoner suit
    • Affirming dismissal of prisoner’s claims for failure to exhaust administrative remedies.
  • Villasana v. Newman, 21-40360, appeal from E.D. Tex.
    • per curiam (Smith, Dennis, Southwick), prisoner suit
    • Affirming dismissal of prisoner’s § 1983 claims.
  • U.S. v. Armendariz, 21-40623, appeal from S.D. Tex.
    • per curiam (Southwick, Higginson, Willett), criminal, sentencing
    • Affirming 210-month sentence on conviction of possession with intent to distribute 500 grams or more of methamphetamine.
  • U.S. v. Tarnawa, 21-40893, appeal from E.D. Tex.
    • per curiam (Southwick, Higginson, Willett), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Marmolejo, 21-50946, appeal from W.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal, sentencing
    • Affirming 188-month sentence on conviction of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine.
  • Garcia v. Matson, 21-51151, appeal from W.D. Tex.
    • per curiam (Smith, Clement, Haynes), products liability, class action
    • Affirming judgment overruling objections to settlement class certification and approving settlement.
  • Daniels v. Saucedo, 21-51193, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), § 1983
    • Affirming dismissal of claims arising from eviction.
  • U.S. v. Perez, 21-51228, appeal from W.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Nyabwari v. Garland, 21-60479, petition for review of BIA order
    • per curiam (Smith, Dennis, Southwick), immigration
    • Denying Kenyan citizen’s petition for review of BIA order denying motion to reopen.
  • Kama v. Memorial Hermann Health Systems, 22-20044, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Ho), employment discrimination
    • Affirming summary judgment dismissal of plaintiff’s employment discrimination and other employment-related claims.
  • Plaquemines Parish v. Chevron USA, Inc., 22-30055, appeal from E.D. La.
    • per curiam (Stewart, Elrod, Graves), federal officer jurisdiction
    • Affirming district court’s ruling that there was no federal officer jurisdiction over claims arising from oilfield work done in the World War II era, and remanding to state court.
  • U.S. v. Malone, 22-30131, appeal from W.D. La.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming 160-month sentence on conviction of five counts of production of child pornography, one count of possession of child pornography, and one count of use of a facility and means of interstate commerce to cause a minor to engage in a criminal sexual activity.
  • Spring Branch Wildlife Preserve v. U.S. EPA, 22-40031, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Ho), Clean Water Act
    • Affirming dismissal of plaintiffs’ declaratory judgment actions on basis that they had failed to challenge any final agency action.
  • U.S. v. Castillo-Jiminez, 22-40084, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez-Hernandez, 22-40287, appeal from S.D. Tex.
    • per curiam (Jolly, Jones, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Castro-Pacheco, 22-40303, appeal from S.D. Tex.
    • per curiam (King, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Jarrow v. Taylor, 22-50154, appeal from W.D. Tex.
    • per curiam (Barksdale, Elrod, Haynes), prisoner suit
    • Affirming dismissal of prisoner’s § 1983 suit.
  • U.S. v. Morrow, 22-60079, appeal from S.D. Miss.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Acevedo v. U.S. Railroad Retirement Board, 22-60187, petition for review of Order of Railroad Retirement Board
    • per curiam (Southwick, Higginson, Willett), benefits
    • Denying petition for review of Railroad Retirement Board denying petitioner certain retirement benefits.