Take the Fifth

Designated for publication

• U.S. v. Croft, 21-50380, c/w 22-50659, appeal from W.D. Tex.
  • Higginson, J. (Graves, Higginson, Ho), Ho, J., dubitante; criminal, sentencing, Brady violation
  • On remand from the U.S. Supreme Court, re-affirming defendant’s conviction of aggravated identity theft under 18 U.S.C. § 1028A under the new “crux of the criminality” standard from U.S. v. Dubin, 599 U.S. 110 (2023), and affirming the district court’s denial of new trial on Brady grounds.
  • After the Court initially affirmed the defendant’s conviction, the U.S. Supreme Court granted certiorari, vacated the panel’s opinion, and remanded for reconsideration under Dubin. The Supreme Court in Dubin held that the aggravated identity theft statute’s element that a defendant use another person’s identity “in relation to” a fraud meant that the identity-use must be the “crux of the criminality,” which would require more than a causal relationship, such that “the means of identification specifically must be used in a manner that is fraudulent or deceptive. Such fraud or deceit going to identity can often be succinctly summarized as going to ‘who’ is involved.” Dubin, 599 U.S. at 132.
  • The Court held that the defendant’s conduct met this new standard from Dubin, as the defendant’s misrepresentations about the identity of certified k-9 dog trainers was at the “heart of” his wire fraud convictions for the use of those identities to secure approval of his applications to get VA approval to offer his programs to veterans on the GI Bill.
  • Judge Ho issued a dubitante opinion. He primarily expressed disagreement with the Dubin decision from the U.S. Supreme Court as a standard that “could prove difficult to administer in practice,” but also disagreed with the majority that the heart of the fraud at issue in this case was the use of the trainers’ identities rather than the fact of their certifications: “[H]ow do the principles articulated in Dubin cut in this appeal? Was the crux of the fraud here the names of the defendant’s employees—or their qualifications?”

• U.S. v. Abbott, 23-50632, appeal from W.D. Tex.
  • Douglas, J. (King, Willett, Douglas), Willett, J., dissenting; Rivers and Harbors Act
  • Affirming district court’s preliminary injunction against Texas’s construction of a floating barrier in the Rio Grande as a violation of the Rivers and Harbors Act.
  • Texas sought to construct floating barriers in the Rio Grande to impede illegal river crossings from Mexico, and the U.S. brought a civil enforcement action under the RHA for failure to procure authorization from the Corps of Engineers and for obstructing the navigable capacity of the waterway. § 403 of the RHA provides, “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any … navigable river … of the United States … except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.”
  • The Court held that the Rio Grande meets the standard for navigability, despite the current state of the segment of the river at issue. “[T]he current condition of the Rio Grande is not dispositive, as the tests for navigability set forth by the Supreme Court permit a review of whether the Rio Grande was historically navigable—that is, whether it was historically used in or susceptible of use in commerce—or whether it may be navigable in the future with reasonable improvements.” The Court found no clear error in the district court’s finding, based on the evidence in the record, that the river was historically navigable. “In addition to the agency determinations, historical evidence, treaties between the United States and Mexico, and court cases, the district court noted several acts of Congress, attached to the United States’ complaint, that emphasize the importance of navigability in the region.”
  • The Court then found no clear error in the district court’s finding that Texas’s floating barrier constituted an “obstruction” under the RHA. “Texas argues that to be an obstruction, an object must tend to destroy the navigable capacity of a waterway. To the contrary, the Supreme Court has defined an obstruction as tending to interfere with or diminish[] the navigable capacity of a stream.” (Internal quotation marks and citation omitted).
  • The Court also rejected Texas’s argument that the floating barrier was not permanent and therefore could not be an “other structure” regulated by the RHA. “Even if the other enumerated structures were permanent, Texas has not shown that the floating barrier is not. The barrier has a ‘tamper resistant’ design and ‘heavy concrete blocks placed systematically on the bed of the Rio Grande River to prevent movement.’ And the barrier ‘is meant to withstand at least a 100-year flood’ and ‘rise and fall with the elevation of the water while maintaining the same position on top of the river.’ As the district court noted, ‘Texas’s own declarants attest that it would take ‘several weeks,’ heavy equipment, and $300,000 to remove the barrier.’ Moreover, Texas has no intention of removing the barrier after a short time, as is made clear by the current litigation.”
  • The Court held there was no abuse of discretion in the district court’s balancing of the equities in the U.S. government’s enforcement of a public interest statute such as the RHA, as well as in the federal government’s historical and ongoing dialogue with Mexico regarding the control of illegal river crossings.
  • Judge Willett dissented, disagreeing as to all elements of the preliminary injunction analysis. He would find that the historical evidence of navigability was of navigation events that were too “sporadic,” “ineffective,” and “exceptional” to establish navigability as a matter of law.

Unpublished

• Lee v. Horton, 23-30416, appeal from M.D. La.
  • per curiam (Jones, Southwick, Ho), RICO
  • Affirming dismissal of civil RICO case and denial of motion to revive on the basis of plaintiff counsel’s excuses for failure to timely oppose dismissal, but vacating designation that dismissal was with prejudice and remanding to dismiss without prejudice.