Take the Fifth

Designated for publication

• U.S. v. Glover-Wing, 24-30431, appeal from W.D. La.
  • Wiener, J. (Wiener, Engelhardt, Oldham) (oral argument), criminal, sufficiency of evidence, judicial estoppel
  • Affirming convictions of conspiracy and healthcare fraud involving the hospice care reimbursement benefit available through Medicare.
  • The Fifth Circuit affirmed the convictions of Kristal Glover-Wing for one count of conspiracy and three counts of healthcare fraud arising out of her operation of Angel Care Hospice (ACH), a Medicare-certified hospice in Louisiana. Glover-Wing’s business model involved recruiting local physicians to serve as medical directors who would certify patients as terminally ill—even where evidence suggested the patients were active and not terminally ill—and then billing Medicare for hospice care reimbursement. At trial, testimony from staff revealed that Glover-Wing directed nurses to manipulate patient records and to keep patients in hospice even when they no longer qualified, and that she would discharge and reenroll patients to manage Medicare payments. The jury found her guilty on all counts while acquitting the physicians. On appeal, Glover-Wing argued that the evidence was insufficient to support the convictions; the Fifth Circuit applied the highly deferential standard for sufficiency review and held that a rational trier of fact could conclude that she knowingly and willfully defrauded Medicare and entered into a conspiracy with her codefendants, notwithstanding their acquittals.
  • Glover-Wing also contended that the district court erred by refusing to judicially estop the government from pursuing the conspiracy charge on a broader theory than it had initially suggested, based on alleged inconsistent positions about whether unindicted employees could be conspirators. The court assumed without deciding the applicability of judicial estoppel in a criminal context but concluded that the doctrine did not apply because Glover-Wing failed to show that the government took a plainly inconsistent position that was accepted by the court or that she suffered unfair detriment.

• U.S. v. Villarreal, 24-40525, c/w 24-40527, appeal from S.D. Tex.
  • Engelhardt, J. (Jones, Engelhardt, Summerhays, by designation) (oral argument), criminal, search and seizure
  • Affirming conviction of possession of a firearm by a felon, upholding denial of motion suppress.
  • The Fifth Circuit affirmed the district court’s denial of Gerardo Villarreal’s motion to suppress a handgun seized during a traffic stop, holding that even if aspects of the stop and search raised Fourth Amendment concerns, the handgun would have inevitably been discovered through a lawful inventory search once officers determined to impound Villarreal’s vehicle because he lacked a driver’s license and insurance. The panel applied the inevitable-discovery doctrine, finding no clear error in the district court’s credibility determinations about department impoundment and inventory procedures and concluding that the Government had shown a reasonable probability the weapon would have been found lawfully and that impoundment and inventory were actively being pursued independent of the challenged conduct.

Unpublished decisions

• U.S. v. Bruzual, 25-10288, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.

• U.S. v. Mendoza, 25-10509, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ramirez-Pedroza, 25-10688, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Vasquez, 25-10731, appeal from N.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• Nwosu v. 1600 West Loop South, L.L.C., 25-20079, appeal from S.D. Tex.
  • per curiam (Barksdale, Willett, Duncan) (oral argument withdrawn), § 1981, jurisdiction
  • Affirming summary judgment dismissal of § 1981 racial discrimination claim arising from restaurant’s enforcement of dress code, and declination of exercising pendent jurisdiction over state law claims.

• U.S. v. Meals, 25-40068, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ramirez, 24-40788, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Affirming conviction for transporting illegal aliens.

• U.S. v. Soriano-Triminio, 25-50463, c/w 25-50464, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Affirming conviction of illegal reentry and revocation of supervised release.

• Sanchez-Guzman v. Bondi, 25-60013, petition for review of BIA order
  • per curiam (Higginbotham, Higginson, Engelhardt) (no oral argument), immigration
  • Denying petition to review BIA order that found petitioners to have waived any challenge to certain findings by the Immigration Judge which that dispositive of their application for asylum, withholding of removal, and relief under the Convention Against Torture.

• U.S. v. Lenoir, 25-60093, appeal from N.D. Miss.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Deberry, 25-60298, appeal from N.D. Miss.
  • per curiam (Stewart, Willett, Wilson) (no oral argument), criminal
  • Dismissing as frivolous defendant’s attempt to file a second appeal of a conviction he already appealed and that was affirmed in a 1992 decision.

• U.S. v. Scott, 25-60308, appeal from S.D. Miss.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Affirming conviction of possession of a firearm by a felon.

• Canales v. Bondi, 25-60323, petition for review of BIA order
  • per curiam (Davis, Jones, Ho) (no oral argument), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing his appeal of an immigration judge’s (IJ) denial of his asylum application as untimely and his applications for withholding of removal and protection under the Convention Against Torture.