March 20, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Janvey v. GMAG, L.L.C., 22-10235, c/w GMAG, L.L.C. v. Janvey, 22-10429, appeal from N.D. Tex.
    • Southwick, J. (Stewart, Dennis, Southwick), receivership
    • Granting petition for panel rehearing of original panel decision that affirmed the district court’s denial of motions for $79 million set-off from order allowing receiver to recover from an investor in Stanford Ponzi scheme, where panel had affirmed on basis that investor had failed to timely make his set-off claim and waived the right; in new panel opinion, the Court still affirmed the district court’s denial of set-off, but on the merits, holding that the district court had not abused its discretion in (1) determining the set-off issue within a summary procedure available in equity receiverships, (2) finding that Texas law does not permit an equitable set-off under similar facts, and (3) determining that amendment of the set-off complaint would be futile because the investor’s previous participation in fraudulent transfers left him with “unclean hands.”
  • Cruz v. Cervantez, 22-10483, appeal from N.D. Tex.
    • Wilson, J. (Stewart, Dennis, Wilson), Dennis, J., dissenting in part, qualified immunity
    • Affirming judgment on jury verdict that defendant officer was entitled to qualified immunity from plaintiff’s deliberate indifference claim arising from the officer’s failure to protect the plaintiff from his cellmate while he was a pretrial detainee, holding that the plaintiff failed to show that any abuse of the district court’s discretion in excluding evidence of disciplinary action against the officer defendant affected the plaintiff’s substantial rights.
    • Judge Dennis dissented in part “to highlight how the district court, by submitting to the jury the question of the objective reasonableness of Cervantez’s behavior, mistakenly injected an ‘objectively unreasonable’ element into the clearly-established-law prong of the qualified immunity analysis.”
  • U.S. v. Marchetti, 22-40617, appeal from E.D. Tex.
    • Smith, J. (Smith, Graves, Wilson), criminal, sentencing
    • Affirming conviction and 48-month sentence for conspiracy to commit illegal remunerations, arising from kickback scheme in medical and DNA-testing business. The Court held that sufficient evidence supported the conviction, that the district court did not abuse its discretion in declining to submit the defendant’s theory of defense instruction, that the district court had not constructively amended the indictment, that cumulative error did not justify a new trial, and that the sentence was not an unreasonable sentence based on incorrect application of the guidelines.
  • Konan v. U.S. Postal Service, 23-10179, appeal from N.D. Tex.
    • Douglas, J. (Wiener, Willett, Douglas), Federal Tort Claims Act, § 1981, sovereign immunity
    • Reversing dismissal of FTCA claims against the Postal Service on claims of intentional refusal to deliver mail, holding that sovereign immunity does not bar claims for intentional conduct against the USPS; but affirming dismissal of § 1981 and § 1985 claims arising from allegations that the intentional refusal to deliver mail was because plaintiff was Black.

Unpublished

  • U.S. v. Pike, 22-51003, appeal from W.D. Tex.
    • per curiam (Stewart, Clement, Ho), criminal, attorney disqualification
    • Affirming disqualification of defendant’s counsel on basis that he had also represented a government informant.
  • U.S. v. Orogun, 23-10543, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Triumphant Gold Ltd. v. Matloff, 23-10698, appeal from N.D. Tex.
    • per curiam (Stewart, Clement, Ho), bankruptcy
    • Vacating district court’s affirmance of bankruptcy court’s discharge order, and remanding for consideration under the appropriate standard of review.
  • U.S. v. Jones, 23-10796, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Affirming conviction for possession of a firearm by a felon.
  • U.S. v. Pasallo-Morales, 23-10916, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lewis, 23-10918, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Reyes, 23-20058, appeal from S.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Rojas-Meliton v. Lumpkin, 23-20575, appeal from S.D. Tex.
    • per curiam (Clement, Engelhardt, Ramirez), habeas corpus
    • Affirming denial of Rule 60(b) motion from order denying Rule 4(a)(6) reopening of time to appeal denial of § 2254 application.
  • Mackey v. American Multi-Cinema, Inc., 23-30392, appeal from E.D. La.
    • per curiam (Richman, Stewart, Hanks, by designation), personal tort, Rule 60(b)
    • Affirming denial of Rule 60(b) motion to reopen case.
  • U.S. v. Navarro-Ramirez, 23-50304, appeal from W.D. Tex.
    • per curiam (Jolly, Engelhardt, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.