July 28-31, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Liberty Mutual Fire Insurance Co. v. Copart of Connecticut, Inc., 21-10938, appeal from N.D. Tex.
    • Higginson, J. (Higginbotham, Southwick, Higginson), insurance
    • Affirming in part and reversing in part summary judgment in favor of insurers on claim for defense and indemnification under CGL and umbrella policies for an underlying suit against the insured alleging contamination from the plaintiff’s auto salvage and vehicle wash properties.
    • The Court held that the district court did not err in reading the complaint in the underlying suit as lacking any allegations of independent liability from non-pollutants, for purposes of the CGL policies’ pollutant exclusion and the duty to defend.
    • The Court held that it may affirm the summary judgment on the duty to defend under the umbrella policies on an alternative ground regarding a retained-limit endorsement, where that alternative ground is adequately developed on the issue. The Court then held that there was no conflict between the retained-limit endorsement and an endorsement providing coverage where the underlying CGL policy does not.
    • The Court, however, held that the district court erred in its conclusory ipso facto holding that, without a duty to defend, there is no duty to indemnify, holding that that summary judgment conclusion was both premature and incorrect, as the facts at trial may differ from the facts alleged in a complaint and therefore reveal that coverage for claims outside the scope of the pollution exclusion may arise.
  • U.S. v. Greenlaw, 22-10511, appeal from N.D. Tex.
    • Stewart, J. (Stewart, Dennis, Southwick), criminal, fraud, sufficiency of evidence, jury instructions, Sixth Amendment
    • Affirming convictions of conspiracy to commit wire fraud affecting a financial institution, conspiracy to commit securities fraud, and eight counts of aiding and abetting securities fraud, arising from defendants’ administration of a Ponzi scheme.
    • The Court held that there was sufficient evidence of an intent to defraud. The Court held that there were material misrepresentations in the defendants’ representations to the SEC and the public that distributions to investors in one of the funds would be made from that funds’ operations, and that there would be no affiliate transactions, where in actuality the defendants used proceeds from one fund to pay distributions to investors in another fund.
    • The Court held that there was sufficient evidence of an intent to deprive money or property, rejecting the defendants’ argument that, essentially no one was harmed by their actions, that investors in all three funds received significant value from their actions. The Court noted that the evidence showed that, “By concealing information, investors were lured into investing in a business that could not pay its distributions in 53 out of the 60 months relevant here.”
    • The Court held that one of the defendants, who was an asset manager who did not participate in formulating the SEC statements, had the requisite knowledge to support the conspiracy and fraud convictions.
    • The Court held that the jury instruction on “intent to defraud” was erroneous, in that the instruction as to deceit was not enough to support intent to defraud, but held that the error was harmless because the record showed beyond a reasonable doubt that the jury still would have found that the defendants met the correct elements.
    • The Court held that there was no Sixth Amendment violation in the district court’s limitation of the defendants’ cross-examination regarding a non-testifying informant.
  • U.S. v. Jones, 22-30270, appeal from E.D. La.
    • Engelhardt, J. (Haynes, Engelhardt, Saldaña, by designation), criminal, guilty plea, sentencing
    • Affirming sufficiency of factual basis for guilty plea conviction of carjacking resulting in serious bodily injury and discharging a firearm in furtherance of a crime of violence or a drug trafficking crime, and reasonableness of 30-year sentence, which varied upward from Guidelines range by 15 years.
  • U.S. v. Holdman, 22-30357, appeal from W.D. La.
    • Southwick, J. (Wiener, Southwick, Duncan), criminal, sentencing, magistrate
    • Affirming conviction and sentence for aiding and abetting others in hunting over bait and hunting over a baited area, both in violation of the Migratory Bird Treaty Act.
    • The Court held that it was proper for a magistrate to try and sentence the defendant, even without agreement of the parties, because 18 USC § 3401 gives magistrates the authority to try and sentence persons accused of misdemeanors, with appeal to the district court.
    • The Court held that it was proper to use the state extension service guidelines on grain sowing to determine whether his broadcasting of seed was proper planting or prohibited baiting.

Unpublished

  • Morazan-Castro v. Garland, 21-60920, petition for review of BIA order
    • Southwick, J. (Wiener, Southwick, Duncan), immigration
    • Denying Honduran citizen’s application for review of BIA dismissal of appeal of IJ order denying his application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Grabert, 22-10287, appeal from N.D. Tex.
    • per curiam (Willett, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gilowski, 22-10887, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
    • Affirming conviction and sentence for conspiracy to commit interstate transportation of stolen property and conspiracy to commit mail fraud.
  • The Dugaboy Investment Trust v. Highland Capital Management, L.P., 22-10960, appeal from N.D. Tex.
    • per curiam (Higginbotham, Southwick, Willett), bankruptcy
    • Affirming dismissal for lack of bankruptcy standing a challenge by an investment trust to an order of the bankruptcy court that approved a settlement between a creditor and the debtor.
  • U.S. v. Bullock, 22-10966, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming sentence on conviction of being a felon in possession of a firearm.
  • The Dugaboy Investment Trust v. Highland Capital Management, L.P., 22-10983, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), bankruptcy
    • Affirming bankruptcy court’s approval of settlement among debtor, debtor’s largest prepetition creditor, and non-debtor affilliate of debtor, holding that bankruptcy court had jurisdiction over settlement.
  • U.S. v. Powe, 22-11124, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cruz-Arias, 22-11134, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Ayala-Galicia, 22-11137, appeal from N.D. Tex.
    • per curiam (Davis, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Chavez, 22-11159, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Sheffield v. Buckingham, 22-40350, appeal from S.D. Tex.
    • per curiam (Graves, Ho, Duncan), Ho, J., dissenting; taking, preliminary injunction, mootness
    • The Court dismissed as moot plaintiff beachfront property owners’ appeal of dismissal of taking and injunctive suit against state land office after state land office rescinded temporary order that declared the public beach area to have moved after two hurricane events that caused erosion of beach in front of plaintiffs’ homes, such that plaintiffs alleged that the public beach area now encompassed most or all of their properties.
    • Judge Ho dissented. “I have real doubts as to whether the government’s actions mooting this case were sincere or strategic—a question we must ask under a faithful application of the doctrine of voluntary cessation.” He would have heard the appeal and reversed the denial of preliminary injunction, holding that the plaintiffs could show irreparable injury due to the defendant’s sovereign immunity from monetary damages.
  • U.S. v. Chisley, 22-40584, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, expert witness, supervised release
    • Affirming conviction of conspiracy to transport an illegal alien within the United States and transporting an illegal alien within the United States for private financial gain, finding no error in admission of expert testimony regarding the commercial trucking industry; but vacating supervised release condition for mental health treatment and remanding for resentencing.
  • U.S. v. Salcido, 22-50725, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, jury instruction
    • Affirming conviction of conspiracy to possess five kilograms or more of cocaine with intent to distribute, and importation of five kilograms or more of cocaine, finding no error in “deliberate ignorance” jury instruction.
  • U.S. v. Rios-Mendez, 22-51088, c/w 22-51089, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Bloodsworth, 22-60669, appeal from S.D. Miss.
    • per curiam (Barksdale, Higginson, Ho), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • Gobert v. Lumpkin, 22-70002, appeal from W.D. Tex.
    • Graves, J. (Jones, Dennis, Graves), habeas corpus
    • Denying COA from denial of § 2254 petition.
  • Friemel v. Deleon, 23-10172, appeal from N.D. Tex.
    • per curiam (King, Southwick, Higginson), timeliness
    • Affirming dismissal without prejudice of pro se complaint for failure to timely serve defendants under FRCP 4(m).
  • U.S. v. Cervantes-Merlos, 23-50188, appeal from W.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Herrera-Alvarez v. Garland, 23-60066, petition for review of BIA order
    • per curiam (Wiener, Stewart, Douglas), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing her appeal from an order of an Immigration Judge (IJ) ordering her removed and denying her application for asylum and withholding of removal.