March 22, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Hill, 19-20251, appeal from S.D. Tex.
    • Dennis, J. (Wiener, Dennis, Duncan), criminal, Confrontation Clause, Sixth Amendment, sufficiency of evidence, sentencing, crime of violence
    • Upon granting petition for panel rehearing, vacating defendants’ conviction for aiding and abetting the discharge of a firearm during a crime of violence, but affirming conviction on other counts arising from two armored car armed robberies, including two counts for aiding and abetting Hobbs Act robbery, and one count of aiding and abetting use of a firearm during a crime of violence causing death of a person.
    • The Court held that the district court had not abused its discretion in ordering the shackling of one of the co-defendants, where those shackles were not visible to the jurors except in one isolated incident as to which the defendant failed to prove prejudice.
    • The Court held that the district court did not abuse its discretion in having one co-defendant temporarily removed from the courtroom after he became disruptive, and in revoking that defendant’s pro se status and having his backup counsel serve as his lead counsel during that period.
    • The Court held that the district court did not err in denying the other co-defendants’ motion for mistrial after the outburst by the other co-defendant, holding “that Hill’s outburst falls short of the rare circumstances in which a codefendant’s disruption results in incurable prejudice such that a mistrial is required.”
    • The Court held that the district court did not err in denying one co-defendant’s motion to sever the trial of the co-defendants’ prosecutions.
    • The Court held that an agent’s lay testimony regarding the meaning of coded language in wire-tapped telephone conversations did not impermissible usurp the jury’s factfinding role.
    • The Court held that the district court did not violate the Confrontation Clause by allowing the agent to testify about excerpts from the cellphone extraction reports that otherwise were non-testimonial, raw machine created data. “Even if we were to construe the curated extraction reports which were actually admitted into evidence and testified about by Coughlin as testimonial, Coughlin would be the correct person to testify about those reports because he created them from the raw data.”
    • The Court held that the district court did not abuse its discretion in the manner in which it inquired into and resolved a complaint of a brief ex parte contact with a juror by someone who had been in the gallery during the trial.
    • The Court held that there was sufficient evidence to support the convictions for Hobbs Act robbery.
    • The Court held, however, that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c) and thus could not support a conviction of aiding and abetting the discharge of a firearm during a crime of violence.
    • The Court held that there was no prejudicial error in the district court’s application of sentencing enhancements for a crime resulting in murder.
  • Tejas Motel, L.L.C. v. City of Mesquite, 22-10321, appeal from N.D. Tex.
    • Smith, J. (Smith, Clement, Wilson), taking, res judicata
    • Affirming dismissal of plaintiff’s federal takings claim against city, where prior lawsuit in state court bringing state and federal takings claims had been dismissed on the basis that the state claim was procedurally barred and the federal claim was not “viable.”
    • The Court held, as to the only res judicata element in dispute, that the prior state court judgment was final, on the merits, by a court of competent jurisdiction. The Court held that it was not necessary for the Texas state court to explicitly specify that a dismissal was “with prejudice” if the effect was the same, for purposes of finality; and that, while claims involving all parties may need to be adjudged for finality for purposes of taking an appeal, finality for res judicata purposes only required finality of judgment as to the parties at issue in the subsequent litigation. As to the “on the merits” requirement, while the Texas district court’s basis of dismissal of the federal taking claim was ambiguous, the Texas appellate court’s ruling was sufficiently explicit about the basis and that the dismissal was on the merits of the claim. Finally, the Court held that the state appellate court was a court of competent jurisdiction because the state-litigation requirement for taking claims had been overruled by the U.S. Supreme Court prior to the appellate court decision in the state-court litigation.

Unpublished

  • Castillo-Trevino v. Garland, 21-60820, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of motion to reopen removal proceedings.
  • Davis v. Wal-Mart Stores East, L.P., 21-60864, appeal from S.D. Miss.
    • per curiam (King, Smith, Graves), personal tort
    • Dismissing as frivolous appeal from dismissal of personal injury claims.
  • Wanzer v. Rayford, 22-50163, appeal from W.D. Tex.
    • per curiam (Higginbotham, Duncan, Wilson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claims.
  • U.S. v. Tavarez-Palma, 22-50613, appeal from W.D. Tex.
    • per curiam (Barksdale, Elrod, Haynes), criminal
    • Affirming conviction of illegal reentry.
  • U.S. v. Saucedo-Corpus, 22-50702, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • De Ortiz v. Garland, 22-60248, petition for review of BIA order
    • per curiam (Higginbotham, Graves, Ho), immigration
    • Dismissing in part and denying in part Guatemalan citizens’ petition for review of BIA order dismissing appeal from IJ’s denial of asylum, withholding of removal, and protection under the CAT.