Take the Fifth

Designated for publication

• U.S. v. Capistrano, 21-10620, appeal from N.D. Tex.
  • Higginbotham, J. (Higginbotham, Smith, Engelhardt), Higginbotham, J., dissenting in part; criminal, sufficiency of evidence, jury instructions, Sixth Amendment, hearsay
  • Affirming convictions of doctor and pharmacists in “pill mill” operation of controlled substance distribution and conspiracy counts, rejecting argument that there was not sufficient evidence to overcome the Controlled Substances Act’s exemption for doctors and pharmacists who distribute “authorized” controlled substances. The doctor/pharmacist exemption requires that the controlled substances be “issued for a legitimate purpose” and “by an individual practitioner acting in the usual course of his professional practice.”
  • The Court held that, even where the defendants properly preserved their sufficiency objections, obtaining de novo review, they still “swim[] upstream,” as the review is still “highly deferential to the jury’s finding of guilt,” such that the Court “will uphold the jury’s verdict so long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Examining the totality of the evidence in the record, focusing in particular on testimony by “recruiters” for the pill mill operation, the Court held that there was sufficient evidence under this deferential standard that the defendants knew that the prescriptions were unauthorized.
  • The Court held that there was no plain error in the district court’s jury instructions regarding pharmacist and physician state-of-mind for purposes of criminal liability under the Controlled Substances Act.
  • The Court held that one of the pharmacists knowingly and intelligently waived her right to counsel during sentencing, and her Sixth Amendment right to counsel was therefore not violated. “Bubu’s conduct—which she concedes was ‘frustrating’—waived counsel. Bubu persistently and unreasonably demanded that her counsel be dismissed. After having already dismissed multiple attorneys and refusing to cooperate and communicate with Cooper—and even turning her back to him—she insisted she would represent herself. Although Bubu never told the court she wished to represent herself, her actions relinquished her right to counsel. Bubu does not argue that she had good cause to not proceed with Cooper. And we have long-held that ‘[a] defendant’s refusal without good cause to proceed with able appointed counsel constitutes a voluntary’ decision to proceed pro se.” (Footnotes and internal citations omitted).
  • The Court held there was no abuse of discretion in the district court’s denial of a motion for continuance.
  • The Court held that there was no clear or obvious error in the district court’s ruling on PSR objections without further comment from the defendant’s attorney.
  • The Court held there was no plain error in the district court’s admission of an investigator’s testimony about an intercepted conversation with a receptionist for the physician.
  • The Court held that the district court did not err in admitting an agent’s lay opinion testimony as to the identity of the physician’s signature after reviewing 20,000 pages of prescriptions.
  • The Court held there was no abuse of discretion in the district court’s overruling of objections to statements made in closing arguments.
  • Judge Higginbotham also dissented in part from his majority opinion. He would find that the 20-month sentence on the pharmacist defendant’s drug-trafficking conviction on count 3 was neither just nor in accordance with law where the statutory maximum is 12 months. The Government had agreed that there was plain error in this sentence, and requested that the Court modify rather than remand for resentencing. “When the Government confesses that a person is facing nearly a year in prison for which there is no legal basis—it matters. … And of course, this issue was raised on appeal, albeit not in a timely fashion. To these eyes, the error at issue here falls squarely within this exception. This is no minor error, but one the Government concedes will subject Bubu to nearly one year of prison beyond her legal sentence. If the point is to impose discipline upon counsel for their shortcomings, it misses the mark. As Chief Justice Marshall wrote just over two centuries ago, ‘the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.’ Affirming this sentence beyond what Congress permits, as our Court does today, exceeds our power and usurps that of the Congress. Indeed, I can think of no clearer subject of ‘exceptional circumstances’ worthy of action than an unlawful sentence.”

• U.S. v. Wright, 21-40849, appeal from S.D. Tex.
  • Smith, J. (Smith, Barksdale, Haynes), Barksdale, J., dissenting; criminal, search and seizure
  • Affirming conviction of being a felon in possession of a firearm, upholding denial of motion to suppress.
  • The Court held that the detaining officer had reasonable suspicion to initiate a Terry stop–at the time that the officer pulled up behind the defendant’s car and ordered him to stay in his vehicle–where the stop was pursuant to a tip, the tipster’s testimony at the suppression hearing was explicitly found by the district court to be credible, and the tip had included detailed information that the defendant had been seen distributing drugs to transient dealers in the vicinity just prior to the stop. The Court held that the detaining officer’s belief that the defendant was engaged in criminal activity “based on the combination of (A) the tip, (B) the high-crime area, and (C) [the defendant’s] exiting of the vehicle.” The Court concluded, “The contemporaneous tip, the visual details that Jakobsohn confirmed, the high-crime area, and Wright’s evasive response to police presence were enough to give an officer articulable suspicion that crime was occurring (or was about to occur). To conclude otherwise would raise the bar of reasonable suspicion and hamper law enforcement from engaging in essential investigatory actions.”
  • Judge Barksdale dissented. He deemed the majority’s multi-factor finding of reasonable suspicion to be a “house of cards,” with each card collapsing “based on each factor’s erroneous application.”

• The Official Committee of Unsecured Creditors v. Bouchard Transportation Co., 22-20321, appeal from S.D. Tex.
  • Smith, J. (Higginbotham, Smith, Engelhardt), bankruptcy
  • Affirming bankruptcy and district court’s findings that payments to a stalking horse to start the bidding at an auction of debtor assets were a permissible use of estate funds as “they provided an actual benefit to the estate and were issued in the reasonable exercise of business judgment.”

• Louisiana v. Jefferson Parish School Board, 22-30143, appeal from E.D. La.
  • Willett, J. (Elrod, Haynes, Willett), standing
  • Remanding to the district court with instructions to remand to state court, on the basis that the state lacks Article III standing to continue to pursue its claims in intervention against a local school board arising from that school board’s suspension of two students who had displayed BB guns on screen while in virtual learning during the COVID-19 pandemic, where the school board had settled all claims underlying the intervention between it and the students’ parents.
  • The Court summarized, “This case lies outside the limits of Article III standing. States undoubtedly have an interest in enforcing their laws. But when it comes to federal courts, Louisiana must claim an injury to a traditional, sovereign interest to invoke Article III jurisdiction. The two are distinctly dissimilar. Louisiana fails to point to any precedent, history, or tradition establishing that its interest in compliance with its laws is the equivalent of an Article III sovereign interest in maintaining its right to govern in the face of competing authority. The state similarly fails to establish an injury to an established quasi-sovereign interest sufficient to show parens patriae standing. Louisiana’s claim of injury to a proprietary interest also falls short.” (Footnote and internal quotation marks omitted).

Unpublished

• Consumer Data Industry Association v. Texas, 21-51038, appeal from W.D. Tex.
  • per curiam (Graves, Willett, Engelhardt), Willett, J., concurring in judgment only; sovereign immunity, Ex parte Young, standing, ripeness
  • Affirming district court’s judgment that the Ex parte Young exception to sovereign immunity applies, that the plaintiff industry association has standing to bring its challenge that Texas’s statute regarding inclusion of medical debt collection accounts in credit reports is preempted by the Federal Fair Credit Reporting Act, and that the plaintiff’s challenge is ripe for review.

• U.S. v. Connor, 22-11030, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Martinez-Hernandez, 22-11068, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
  • Affirming 46-month sentence on conviction of illegal reentry.

• U.S. v. Okoye, 22-30289, appeal from W.D. La.
  • per curiam (Graves, Ho, Duncan), Graves, J., dissenting; criminal, restitution
  • Affirming restitution award ordered for defendant’s participation in criminal conspiracy, holding the record provided sufficient basis for the amount ordered being foreseeable.
  • Judge Graves dissented, disagreeing that the amount of restitution was foreseeable, and would vacate and remand for resentencing.

• U.S. v. Ferrell, 22-40812, appeal from E.D. Tex.
  • per curiam (Davis, Ho, Wilson), criminal, guilty plea
  • Dismissing appeal of conviction of conspiracy to possess with the intent to distribute and dispense and distributing and dispensing of controlled substances, pursuant to appeal-waiver in guilty plea.

• U.S. v. Vaughn, 22-50749, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Wilson), criminal, sentencing
  • Affirming consecutive 240-month and 60-month sentences on convictions of conspiracy to distribute and to possess with intent to distribute 50 grams or more of actual methamphetamine after a prior conviction for a serious violent felony and to possession of a firearm in furtherance of a drug trafficking crime.

• Rozelle v. Lowe, 22-51125, appeal from W.D. Tex.
  • per curiam (Davis, Smith, Douglas), bankruptcy
  • Affirming district court’s affirmance of the bankruptcy court’s order approving the estate’s accountant final fee application.

• Russell v. Jackson, 23-40086, appeal from E.D. Tex.
  • per curiam (Stewart, Graves, Oldham), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claims.