October 2-3, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Shah, 21-10292, appeal from N.D. Tex.
    • Richman, C.J. (Richman, Wiener, Willett), criminal, Anti-Kickback Statute, sufficiency of evidence, Travel Act, Speedy Trial Act, Bruton violation, Court Reporter’s Act, jury instructions, prosecutorial conduct, sentencing, restitution
    • Affirming convictions under the Anti-Kickback Statute, the Travel Act, and for money laundering, arising from “a multi-million-dollar healthcare conspiracy involving surgery-referral kickbacks at Forest Park Medical Center in Dallas, Texas.” Combining the various co-defendants’ arguments, the Court’s decision addressed 18 substantive parts, comprising the following holdings:
      • The Court upheld the sufficiency of evidence to support the Anti-Kickback Statute convictions of six co-defendants, holding that the government need not prove defendants had knowledge that the services for which kickbacks were being provided were made under a federal healthcare program, but that the reference to the federal healthcare program was merely a jurisdictional hook; that the evidence showed that patients were federally insured; that the evidence supported receipt of kickbacks; that the evidence supports knowing participation in a conspiracy; that the evidence supported that the receipt of funds was knowingly for an unlawful conspiracy and not for legitimate purposes; that the evidence supported the amount of bribe money diverted to various defendants;
      • The Court upheld the sufficiency of evidence to support the Travel Act convictions, that violations of the Texas Commercial Bribery Statute were valid predicate crimes under the Travel Act.
      • The Court upheld the sufficiency of the evidence to support the money laundering convictions.
      • The Court held that the evidence supported a verdict of a single conspiracy.
      • The Court held that the district court did not err in refusing to dismiss one of the defendants’ indictments for violation of the Speedy Trial Act, because the defendant consented to a continuance that comprised most of the complained-of delay.
      • The Court held that there was no violation of the Court Reporter’s Act by the district court’s going off record 46 times during the 29-day trial for bench conferences.
      • The Court held there was no error in the district court’s finding that one of the defendants had breached his pretrial proffer; and that the district court’s remedy for that breach, of reading a portion of the defendant’s proffer to the jury, was not a Bruton error.
      • The Court held there was no error in the exclusion of two witnesses’ testimony.
      • The Court held that there was no error in the district court’s denial of the defendants’ advice-of-counsel and good-faith jury instructions, or on instructing the jury as to a single conspiracy instead of as to multiple conspiracies.
      • The Court held that there was no prosecutorial misconduct in actions during closing argument.
      • The Court held there was no abuse of discretion in applying the abuse-of-trust sentencing enhancement to one of the defendants’ sentences, or in the calculation of the amount of improper benefit considered for sentencing purposes.
      • The Court found no error in the calculation of restitution or forfeiture amounts.
  • Sacks v. Texas Southern University, 22-20541, appeal from S.D. Tex.
    • per curiam (King, Willett, Douglas), Title VII, Equal Pay Act, employment discrimination, res judicata
    • Affirming 12(b)(6) dismissal of Title VII and Equal Pay Act Claims of tenured law school professor after she resigned her position, and holding that § 1983 claims were barred by res judicata.
  • Wooley v. N&W Marine Towing, L.L.C., 23-30112, appeal from E.D. La.
    • Wilson, J. (Stewart, Dennis, Wilson), maritime law, removal jurisdiction
    • Affirming dismissal of improperly joined nondiverse defendant where only jurisdictional basis for removal was admiralty jurisdiction.
  • Missouri v. Biden, 23-30445, appeal from W.D. La.
    • per curiam (Clement, Elrod, Willett), First Amendment
    • Granting petition for panel rehearing of original decision, and substituting new opinion with same operative effect of affirming in part, reversing in part, vacating in part, and modifying preliminary injunction of various federal bodies’ actions in encouraging removal of posts and deplatforming of social media users in efforts to address misinformation on social media.

Unpublished

  • U.S. v. Rawson, 22-10846, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
    • Affirming conviction and sentence for engaging in illicit sexual conduct in foreign places.
  • Murillo v. City of Granbury, 22-11163, appeal from N.D. Tex.
    • per curiam (Clement, Haynes, Oldham), Family and Medical Leave Act
    • Reversing summary judgment in favor of defendant in employee’s FMLA retaliation claim, and remanding for further proceedings.
  • U.S. v. Butler, 22-40473, appeal from E.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Affirming 262-month sentence on conviction of conspiracy to possess with intent to distribute five kilograms or more of a mixture or substance containing cocaine.
  • Morales v. Cardenas, 22-50836, appeal from W.D. Tex.
    • per curiam (Stewart, Dennis, Wilson), qualified immunity
    • Dismissing officer defendant’s appeal of denial of qualified immunity summary judgment on plaintiff’s claim that the defendant framed him for an arrest in violation of the Fourteenth Amendment.
  • U.S. v. Watts, 22-60608, appeal from S.D. Miss.
    • per curiam (Jones, Southwick, Ho), criminal, guilty plea
    • Dismissing appeal from conviction and sentence for possession of a firearm by a felon, on basis of appeal waiver in plea agreement.
  • U.S. v. Rodriguez-Castro, 23-10120, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing
    • Affirming 120-month sentence on conviction of illegal reentry.
  • U.S. v. Hutcheson, 23-10136, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Martinez, 23-10163, appeal from N.D. Tex.
    • per curiam (King, Haynes, Graves), criminal, sentencing
    • Affirming in part and dismissing appeal in part as to 140-month sentence on conviction of possession with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine.
  • U.S. v. Hernandez, 23-10176, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hanes, 23-10191, appeal from N.D. Tex.
    • per curiam (Willett, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Yanouri-Roa, 23-10244, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Orellana-Sibrian, 23-10251, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Bryant, 23-10269, appeal from N.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Villagrana, 23-10298, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Pena-Talamantes, 23-10325, appeal from N.D. Tex.
    • per curiam (Dennis, Engelhardt, Wilson), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Torres, 23-10332, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cortez-Garcia, 23-10349, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Hernandez-Aguilar, 23-10453, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Harvey v. Preload, L.L.C., 23-30120, appeal from W.D. La.
    • per curiam (Clement, Haynes, Oldham), workers’ compensation, personal tort
    • Affirming summary judgment for employer on employee’s personal injury claim and issue of whether claim fit into workers’ compensation carve-out for intentional acts.
  • U.S. v. Netro-Perales, 23-40074, appeal from S.D. Tex.
    • per curiam (King, Haynes, Graves), criminal, sentencing
    • Affirming sentence and conviction for illegal reentry.
  • U.S. v. Galicia, 23-40088, appeal from E.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Penaloza, 23-40203, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez-Salazar, 23-40226, appeal from S.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Perez v. U.S. Xpress, Inc., 23-50146, appeal from W.D. Tex.
    • per curiam (King, Willett, Douglas), personal tort
    • Affirming summary judgment dismissal of auto accident personal injury claims.
  • U.S. v. Castro-Patina, 23-50260, appeal from W.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Reyes-Soriano v. Garland, 23-60172, petition for review of BIA order
    • per curiam (Willett, Duncan, Douglas), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing his appeal and affirming the immigration judge’s (IJ’s) denial of withholding of removal and protection under the Convention Against Torture.
  • U.S. v. Mason, 23-60379, appeal from S.D. Miss.
    • per curiam (Jolly, Higginson, Duncan), criminal, supervised release
    • Affirming revocation of supervised release.