Take the Fifth

Unpublished decisions

• United States v. Wilson, 24-60277, appeal from N.D. Miss.
  • per curiam (Richman, Duncan, Oldham) (oral argument withdrawn), criminal, expert witness, sufficiency of evidence
  • Affirming conviction of eight counts of sexually exploiting children, and 192-year prison sentence.
  • Toshemie Wilson, a Mississippi high school teacher from 2005 to 2022, was convicted of eight counts of sexually exploiting children in violation of 18 U.S.C. § 2251(a). Investigators recovered sexually explicit videos of former students on mini-tapes and a desktop computer from Wilson’s home, along with victim testimony describing additional recordings on devices that were not recovered. Wilson was sentenced to 192 years’ imprisonment with lifetime supervised release.
  • Issues on appeal were (1) whether the district court erred in allowing Special Agent Molly Blythe to testify as a lay witness under Federal Rule of Evidence 701 on topics Wilson characterized as expert forensic testimony; (2) whether the evidence was sufficient to support the interstate-commerce element of each count; and (3) whether the evidence was sufficient to prove Wilson’s purpose was child exploitation rather than “research.”
  • The court affirmed Wilson’s conviction on all grounds. Agent Blythe’s testimony—about device data, thumbnails, and manufacturers identified through internet searches—fell within permissible lay testimony under Rule 701 and Fifth Circuit precedent. The evidence, including testimony that none of the recording or storage devices were manufactured in Mississippi, was sufficient for a rational jury to find the interstate-commerce element satisfied for every count. Applying the Dost factors, the court found the evidence plainly established that the videos depicted sexually explicit conduct and were produced for that purpose, rejecting Wilson’s “research” defense.

• SEC v. Stanford, 25-10387, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), securities fraud, collateral estoppel
  • Affirming civil judgment for liability for violating the Securities Act of 1933.
  • Robert Allen Stanford, currently imprisoned for orchestrating a massive Ponzi scheme, challenged the civil judgment finding him liable for violations of the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940. The SEC’s enforcement action had been abated during Stanford’s criminal trial; after his criminal conviction, the SEC moved for partial summary judgment on the basis that the criminal convictions collaterally estopped relitigation of the civil claims.
  • Issues on appeal were (1) whether the certificates of deposit (CDs) at issue qualified as securities; (2) extraterritoriality, personal jurisdiction, Seventh Amendment jury-trial rights, Fifth Amendment due process, and the law-of-the-case doctrine; and (3) whether collateral estoppel properly applied based on Stanford’s prior criminal convictions.
  • The court held that Stanford forfeited his arguments that CDs are not securities and his arguments on extraterritoriality, personal jurisdiction, the Seventh Amendment, the Fifth Amendment, and law of the case by failing to raise them at the appropriate stage. Regardless, precedent established that the CDs were securities. Collateral estoppel was appropriate because a prior criminal proceeding can have preclusive effect in a subsequent civil action and Stanford received a full and fair opportunity to litigate in the criminal case. Stanford’s motion for judicial notice was also denied as meritless.

• Vasquez v. CIMA Services, L.P., 25-20133, appeal from S.D. Tex.
  • per curiam (Willett, Wilson, Douglas) (no oral argument), personal tort, summary judgment
  • Affirming summary judgment dismissal of claim arising from toxic gas exposure.
  • Mark Vasquez, a CIMA Services employee, was severely injured by toxic chlorine gas exposure while performing maintenance at a Lubrizol chemical plant in Deer Park, Texas. After multiple continuances, Vasquez’s counsel failed to file a timely opposition to Lubrizol’s summary judgment motion due to a legal assistant’s clerical error regarding the deadline. The district court denied Vasquez’s emergency motion for leave to file a late response and granted summary judgment.
  • Issues on appeal were (1) whether the district court abused its discretion by refusing to allow Vasquez’s untimely opposition under Fed. R. Civ. P. 6(b); and (2) whether Lubrizol was entitled to summary judgment on Vasquez’s Texas negligence claims under Chapter 95 of the Texas Civil Practice and Remedies Code, which shields premises owners from negligence liability arising from independent contractor work absent both control and actual knowledge of the danger.
  • The court held that the district court did not abuse its discretion in refusing to permit the late filing, especially given that the court had clearly announced the deadlines and warned that no further extensions would be granted; the assistant’s clerical error did not amount to “excusable neglect” under Pioneer. On the merits, Lubrizol made a prima facie showing of entitlement to summary judgment because the undisputed facts demonstrated it had neither actual control over Vasquez’s work nor actual knowledge of the dangerous condition, satisfying the Chapter 95 standard. Even considering Vasquez’s untimely evidence, no genuine dispute of material fact existed.

• Goodley v. Supreme Rice, L.L.C., 25-30509, appeal from W.D. La.
  • per curiam (Richman, Duncan, Oldham) (no oral argument), personal tort, workers’ compensation
  • Affirming summary judgment dismissal of tort claim on basis that Louisiana’s workers’ compensation system supplied the exclusive remedy.
  • Rachel Goodley, an inspector for the Federal Grain Inspection Service (FGIS), was injured when a Supreme Rice employee drove a forklift over her foot while she was on-site grading rice pursuant to a Contract Service Agreement between FGIS and Supreme Rice. She filed a tort suit; Supreme Rice removed the case and moved for summary judgment, arguing that Louisiana’s workers’ compensation scheme provided the exclusive remedy.
  • At issue on appeal was whether Supreme Rice could invoke Louisiana’s statutory employer “two-contract” defense (La. Stat. Ann. § 23:1061(A)(2)) to claim tort immunity, thereby limiting Goodley’s recovery to workers’ compensation. Goodley argued that the contract with the foreign buyer did not require “work” to be performed, that the FGIS service agreement was not a “contract” for purposes of the defense, and that a federal regulatory body cannot be a “subcontractor.”
  • The court held that the two-contract defense applied: Supreme Rice contracted with a foreign buyer to deliver inspected rice, and to fulfill that obligation it contracted with FGIS to perform the inspection. The voluntary nature of FGIS rice inspections (unlike mandatory grain or meat inspections) and the availability of non-FGIS licensed inspectors reinforced the conclusion that this was a genuine contractual arrangement, not mere regulatory compliance. The court emphasized that the holding was narrow and did not suggest that a regulated entity will always be a statutory employer of federal regulatory employees. It declined to address Goodley’s Supremacy Clause argument because it was raised for the first time on appeal.

• Lopez v. Ramirez, 25-40170, appeal from S.D. Tex.
  • per curiam (Willett, Wilson, Douglas) (oral argument withdrawn), § 1983, First Amendment, appellate jurisdiction
  • Dismissing for lack of appellate jurisdiction the defendants’ appeal from an interlocutory order denying a motion to dismiss without prejudice pending a court-ordered mediation of plaintiffs’ First Amendment claims.
  • Twelve employees of the Rio Grande City Consolidated Independent School District sued school-board members and a former interim superintendent under 42 U.S.C. § 1983, alleging First Amendment retaliation after they publicly supported candidates in a 2018 school-board election. Twice previously, the Fifth Circuit vacated and remanded because the district court denied immunity-based motions to dismiss without any analysis. On the second remand, instead of ruling on the refiled motion to dismiss, the district court referred the case to mediation, canceled all scheduling deadlines, and denied all pending motions without prejudice to refiling after mediation concluded.
  • The issue on appeal was whether the district court’s mediation order—which denied the defendants’ immunity-based motion to dismiss without prejudice, pending mediation—was an appealable interlocutory order under the collateral order doctrine (28 U.S.C. § 1291).
  • The court held that the mediation order was not a “conclusive” denial of immunity; it left the door open for defendants to refile after mediation, and it suspended rather than advanced the litigation. Citing De Leon v. Munoz, the court found this order was not a “final, unequivocal refusal to render a pretrial determination” of immunity and therefore fell outside the collateral order doctrine. The court noted its continuing concern that the district court has yet to provide the reasoned, individualized analysis its prior mandates require.

• Munajj v. City of Fredericksburg, 25-50535, appeal from W.D. Tex.
  • per curiam (Willett, Wilson, Douglas) (no oral argument), qualified immunity, municipal liability
  • Affirming dismissal of plaintiff’s claims arising from arrest that was later dismissed, where dismissal of plaintiff’s claim against arresting officer was found to be subject to qualified immunity and claim against city failed to show a Monell claim.
  • Kwame Munajj, a Houston property owner, was arrested for assault by threat after a payment dispute with Jerod Drew, a worker who had occupied Munajj’s Fredericksburg rental property without permission. Drew called the police and alleged Munajj had shown a gun and threatened to kill him; Officer James Wayman arrested Munajj based on Drew’s sworn statement, video footage, dispatch reports, and the totality of circumstances. The assault charge was later dismissed.
  • The issues on appeal were (1) whether Officer Wayman had probable cause to arrest Munajj, and whether Wayman was entitled to qualified immunity; and (2) whether Munajj stated a Monell municipal liability claim against the City of Fredericksburg for failure to train or supervise.
  • The court found that the totality of circumstances—including dispatch reports of an armed suspect, Drew’s sworn statement, and video of Munajj aggressively confronting Drew—established probable cause for arrest for assault by threat under Texas Penal Code § 22.01(a)(2). Even if probable cause were lacking, Wayman was entitled to qualified immunity because clearly established law does not proscribe arrests based on reasonable but mistaken probable-cause determinations. Munajj’s new state-law argument raised for the first time on appeal was declined for consideration. The Monell claim failed because Munajj did not identify an underlying constitutional violation, and his allegations of a “persistent, widespread practice” of failing to enforce trespassing laws were conclusory and unsupported by specific, sufficiently similar prior incidents.