Take the Fifth

Designated for publication

• Moreau v. White, 25-40031, c/w 25-40364, appeal from E.D. Tex.
  • Engelhardt, J. (Jones, Engelhardt, Summerhays, by designation) (oral argument), Jones, J., dissenting; international child custody, Hague Convention
  • Affirming order to return children to custodial parent in Canada; vacating preliminary injunction enjoining Texas courts from conducting further proceedings and ordering Canadian courts to adjudicate custody.
  • Sarah Moreau and Andrew White married and lived in Texas, where they had two children. In 2018, Moreau filed for divorce in Dallas County and was appointed temporary sole managing conservator; in 2019, the Texas court allowed her to relocate with the children without geographic restriction, and she moved to Canada. White did not contact Moreau or the children for over two years. Parallel custody proceedings then unfolded in both Texas and Canada, with each court issuing conflicting orders. By August 2024, the Texas court had granted White the exclusive right to designate the children’s residence, while Canada had recognized only Moreau’s right to do so. On August 5, 2024, White informed Moreau the children would start school in Texas, effectively retaining them there. Moreau filed a Hague Convention petition in federal court on September 24, 2024. After a bench trial, the district court ordered the children returned to Canada and later issued a preliminary injunction barring White and two Texas state judges from proceeding with custody litigation, while ordering the Canadian courts to adjudicate custody.
  • At issue on appeal were (1) whether the children were “habitually resident” in Canada at the time of retention; (2) whether Moreau’s conduct established the Hague Convention’s consent-based affirmative defense; (3) whether judicial estoppel could preclude Moreau’s Hague petition; and (4) whether the district court properly enjoined both Canadian and Texas courts.
  • On habitual residence, the court applied the Supreme Court’s totality-of-the-circumstances test from Monasky v. Taglieri and declined to adopt White’s proposed categorical rule that a parent cannot unilaterally change a child’s habitual residence after a court authorizes only a temporary move. The children lived, attended school, and maintained relationships in Canada for more than five years, and the district court’s finding that Canada was their habitual residence was not clearly erroneous—even though the evidence “cuts both ways” given Moreau’s representations that the move was temporary. As the district court put it: “It would be odd to conclude that Texas—a location they had not lived in permanently for almost five years—is their place of habitual residence.”
  • On consent and judicial estoppel, the court distinguished Larbie v. Larbie, finding that Moreau repeatedly questioned Texas’s jurisdiction by moving to dismiss the custody portion to Canada, conduct “akin to a revocation of consent.” On judicial estoppel, the court held it is “unavailable as an extra-treaty defense to a mandatory return under the Convention,” noting that no circuit has recognized it as such, and that the Supreme Court cautioned against “export[ing] . . . background principles of United States law” into treaty interpretation.
  • On the preliminary injunction, the court vacated all orders directing the Canadian courts to act, finding they offended comity principles: “restrictions on foreign courts should be ‘issued sparingly, with great care and restraint.'” Because the Texas injunction was corollary to the now-vacated Canadian directive, it was likewise vacated. The court emphasized that “the Texas courts—through all their ranks—are more than capable of assessing their own jurisdiction” in light of the return order and Hague Convention precedent.
  • Judge Jones “respectfully dissent[ed],” contending the majority’s interpretation of consent is “ultimately inconsistent with the Hague Convention” and its “disregard of judicial estoppel condones duplicitous conduct.” She characterized Moreau’s litigation strategy harshly, noting Moreau “grovelled in ‘submi[ssion] to the Trial Court’s jurisdiction'” before the Texas Supreme Court while simultaneously establishing a permanent home in Canada—conduct she called “playing fast and loose” with the courts. Judge Jones argued that returning the children to Canada “perversely incentivizes parents like Moreau to cross international borders and prolong custody disputes contrary to court orders while ‘in search of a more sympathetic court.'” She contended that judicial estoppel is available in Hague cases because the Convention “limits only the affirmative defenses a respondent may assert, not the equitable doctrines a court may apply,” and that all three elements of estoppel were satisfied. She would have “reversed and remanded with instructions to dismiss on judicial-estoppel grounds.”

• United States v. Kuyoro, 25-20002, appeal from S.D. Tex.
  • Higginson, J. (Haynes, Higginson, Ho) (oral argument), criminal, Brady violation
  • Reversing dismissal of indictment on Brady grounds, and remanding for reinstatement of indictment and further proceedings.
  • Sade Kuyoro was charged with disaster relief fraud and wire fraud after FEMA awarded her approximately $33,000 following Hurricane Harvey based on her application claiming hurricane damage to a Houston residence. Evidence at trial showed the application was extensively fabricated: a long-time resident of the address testified no “Unit C” ever existed, Kuyoro’s own Illinois bankruptcy petition confirmed she lived in Illinois during the hurricane, and supporting documents—hotel receipts, auto repair estimates, and rental information—were all shown to be fictitious. During trial, the Government discovered it had failed to disclose two items: (1) civil recoupment letters FEMA mailed to Kuyoro in 2020, and (2) an email from the investigating agent to a third-party FEMA inspector whose identity had not been shared with the defense. Both items were immediately turned over upon discovery. The district court dismissed the indictment without prejudice as a “sanction,” citing Brady v. Maryland, its supervisory powers, and discovery violations in two other recent Government cases, while explicitly finding “no malicious or nefarious intent” by prosecutors.
  • At issue on appeal was whether the district court abused its discretion in dismissing the indictment without prejudice based on alleged Brady violations, Federal Rule of Criminal Procedure 16 violations, or the court’s inherent supervisory authority.
  • On the existence of a Brady violation, the court found that neither piece of evidence was “suppressed” under Brady. The recoupment letters were turned over during trial and defense counsel received them before the relevant agent testified, with time to review them. The court noted: “If the defendant received the material in time to put it to effective use at trial, his conviction should not be reversed simply because it was not disclosed as early as it might have and, indeed, should have been.” As to the inspector information, Kuyoro could not claim suppression because she knew of the inspector’s existence and “failed to exercise reasonable diligence to obtain further information”—Brady “bears no responsibility to direct the defense toward potentially exculpatory evidence . . . that could be discovered through the exercise of reasonable diligence.”
  • On Rule 16 and the Garrett factors, even assuming a Rule 16 violation, the district court failed to analyze the four Garrett factors—reason for nondisclosure, prejudice, feasibility of a continuance, and other circumstances—before imposing the sanction. Courts must “impose the least severe sanction that will accomplish the desired result.” The district court acknowledged a continuance would remedy the violations in this case but declined to impose one, instead relying on discovery violations in two unrelated cases to justify dismissal—an abuse of discretion.
  • Regarding the district court’s invocation of its supervisory powers, the court held that the district court exceeded its supervisory authority because Kuyoro demonstrated no actual prejudice from the late disclosures, as required under Bank of Nova Scotia and Swenson. While the court declined to “‘foreclose the possibility that governmental ineptitude and carelessness could be so abhorrent as to warrant’ a dismissal,” it emphasized that “‘mere error or oversight is neither gross negligence nor intentional misconduct,'” and the district court itself found “no malicious or nefarious intent.”

Unpublished decisions

• Philips North America, L.L.C. v. Image Technology Consulting, L.L.C., et al., 25-10549, appeal from N.D. Tex.
  • per curiam (Elrod, Willett, Wilson) (oral argument), spoliation, sanctions, civil
  • Affirming spoliation sanctions, including dismissal of counterclaims.
  • At issue was whether the district court abused its discretion in granting a motion for spoliation sanctions, awarding damages, and dismissing counterclaims brought by Image Technology Consulting, LLC and Marshall Shannon.
  • The court concluded the district court did not abuse its discretion in granting the spoliation sanctions motion and awarding damages, affirming substantially for the reasons stated in the district court’s November 4, 2024 Memorandum Opinion and Order.

• Johnson v. Salter, et al., 25-50332, appeal from W.D. Tex.
  • per curiam (Haynes, Higginson, Ho) (no oral argument), qualified immunity, municipal liability
  • Affirming qualified immunity dismissal of excessive force claims and dismissal of Monell claims.
  • At issue were (1) whether Austin police officers were entitled to qualified immunity on claims of excessive force (head strikes and a taser drive stun) and bystander liability arising from an emergency detention of a suicidal individual who possessed a firearm; and (2) whether the plaintiff stated a viable Monell municipal liability claim against the City of Austin.
  • Johnson told his mother he would commit suicide and she called 911. Three officers responded, and after Johnson retreated into his dark apartment, refused commands, and pulled his arm away during handcuffing—with the location of his firearm unknown—one officer struck him in the jaw four times and another used a taser drive stun. Johnson required emergency jaw surgery.
  • The court held that Johnson failed to demonstrate that clearly established law at the time of the incident placed the officers on notice that their force was unlawful, given the totality of the circumstances—including Johnson’s suicidal state, possession of a firearm, retreat into a dark apartment, and noncompliance with commands. The bystander claim likewise failed because the underlying uses of force did not violate clearly established law. The Monell claim was affirmed on the alternative ground that Johnson forfeited his arguments by failing to adequately brief the district court’s independent analysis of municipal liability on appeal.

• United States v. Kennedy, 25-60227, appeal from S.D. Miss.
  • per curiam (Jones, Clement, Richman) (no oral argument), criminal, sentencing
  • Affirming sentence on revocation of supervised release, including all discretionary conditions of new term of supervised release.
  • At issue was whether the district court erred by not orally pronouncing certain discretionary conditions of supervised release at a revocation hearing, where those conditions appeared in the written judgment but were adopted by reference to the original judgment order.
  • Applying plain-error review (because Kennedy had an opportunity to object but did not), the court held the district court properly orally adopted the standard conditions by referring to the “judgment order,” which had been in the record for over six years and gave the defendant ample notice. There was no conflict between the oral pronouncement and the written judgment.

• United States v. Daily, 25-10974, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, guilty plea, Commerce Clause
  • Affirming guilty-plea conviction of attempted production of child pornography where factual predicate was that defendant admitted only that the item used had moved in interstate commerce.
  • The court granted the government’s unopposed motion for summary affirmance, holding that Daily’s challenges were foreclosed by binding precedent including United States v. Bailey, United States v. Dickson, and United States v. Kallestad.

• United States v. Guerra Licon, 25-50380, appeal from W.D. Tex.
  • per curiam ) (Davis, Wilson, Douglas) (no oral argument), criminal, sentencing, Second Amendment
  • Affirming conviction of possession of an unregistered firearm; but vacating written judgment of sentence that conflicted with the district court’s oral pronouncement regarding concurrent vs. consecutive sentencing.
  • The Second Amendment challenge was foreclosed by United States v. Peterson. The court agreed the written judgment (stating the sentence runs consecutively) conflicted with the oral pronouncement (ordering the sentence to run concurrently with a pending Ector County case) and remanded to amend the written judgment to conform.

• United States v. De La Fuente, 25-50496, c/w 25-50500, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.
  • The court granted summary affirmance, holding that De La Fuente’s sole argument was foreclosed by Almendarez-Torres v. United States as interpreted in United States v. Pervis and acknowledged in Erlinger v. United States.

• United States v. Smith, 25-11240, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Reyna v. Wells Fargo Bank, N.A., et al., 26-50018, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), civil
  • Affirming dismissal of pro se petition to perpetuate testimony under Federal Rule of Civil Procedure 27(a).
  • The court held Reyna abandoned the Rule 27(a) issue by failing to identify any error in the district court’s reasoning on appeal. The court further held that the district court did not abuse its discretion because Reyna failed to show why he could not presently file a lawsuit against Wells Fargo as required by Rule 27(a).

• United States v. Leon, Jr., 25-11144, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Engelhardt) (no oral argument), criminal
  • Affirming revocation of supervised release and imposition of imprisonment.
  • The court granted summary affirmance, holding that Leon’s argument was foreclosed by United States v. Garner, which rejected this constitutional challenge.

• United States v. Corona-Corona, 25-20174, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Medina-Hernandez, 25-11223, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming sentencing enhancement for conviction of illegal reentry,
  • The court granted summary affirmance, holding the argument foreclosed by Almendarez-Torres v. United States as confirmed in United States v. Pervis and Erlinger v. United States.

• United States v. Deeb, 25-30359, appeal from W.D. La.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Simmons, et al. v. Brotherhood Mutual Insurance Company, 25-30463, appeal from W.D. La.
  • per curiam (Elrod, Willett, Wilson) (oral argument), insurance, appellate jurisdiction
  • Remanding for the limited purpose of permitting the district court to issue a final judgment within fourteen days.
  • The court noted the partial-summary-judgment order appeared to resolve all claims and both parties agreed it ended the litigation, but a subsequent magistrate judge stay order—not a final judgment—created jurisdictional ambiguity. The panel retained jurisdiction and required no new notice of appeal or briefing.